There Should Be More Public Pressure on Hamas
In the summer of 2008, I helped raid a hospital. As I’ve written before, I was deployed as a JAG officer (an Army lawyer) with the Third Armored Cavalry Regiment in Diyala Province, Iraq. Diyala was in the midst of a wave of suicide bombings, many of them carried out by women, that was brutal beyond words. And the vast majority in our area of operations weren’t aimed at American troops. We could be quite hard to hit. Instead, suicide bombers blew up cafes, medical clinics and weddings. Sometimes they’d “double tap.” One bomber would detonate, then as medical help arrived, a second bomber would kill aid workers and desperate family members who were searching for survivors.
In the midst of this nightmare, we received intelligence that one of the leaders of the suicide bombing cell was operating out of a nearby hospital. As the unit JAG officer, I was asked to review the request to send elements of a cavalry troop to invade the building and search it room by room. I not only approved the search, I participated. I didn’t lead it. No combat unit wants its lawyer to lead a potentially dangerous mission, but I was inside as our troopers searched every square inch of the building.
Our target wasn’t there. The entire search was anticlimactic and barely memorable compared to countless other incidents during my deployment. We guarded the exits, announced ourselves, entered peacefully and conducted a deliberate, orderly and fruitless search. Except for the fact that we were bristling with weapons, it was all quite quiet and calm.
At the time I was both disappointed and — to be perfectly honest — a bit relieved. We desperately wanted to kill or capture the man who was responsible for so much death and destruction, but the thought of a firefight in the middle of a hospital full of sick and wounded civilians filled me with dread.
Had our target been present, however, precise, targeted efforts to capture or kill him would have been entirely lawful. The emphasis is on the words precise and targeted. The use of a hospital for military purposes does not automatically grant an attacking force carte blanche to use maximum force. It still must take great care to minimize harm to innocent life and to the hospital itself.
As I share that story, I’d ask for your honest, immediate reaction. Do you have greater horror at the thought of heavily armed Americans pouring into an active hospital, or at the thought that a terrorist was coordinating a wave of violence while sheltering among civilians in a site ordinarily protected from harm?
I raise this issue because Israel Defense Forces soldiers have just raided a hospital in the heart of Gaza, a hospital that both Israeli and American intelligence believe serves as a command center and ammunition depot. I see the immediate outrage at Israel’s incursion. I also see the extraordinary wave of both domestic and international protest against Israel’s broader military campaign in Gaza. The protests aren’t just in the streets. As The Times reported on Monday, “Dozens of State Department employees have signed internal memos to Secretary of State Antony J. Blinken expressing serious disagreement with the Biden administration’s approach to Israel’s military campaign in Gaza.”
While some of the people protesting Israel are vicious anti-Semites, there are many millions of others who look at the undeniable horror in Gaza and are understandably desperate for it to stop. Any decent human being looks at the toll in civilian life — especially the toll in children’s lives — and recoils.
There’s a certain misguided logic in focusing most peace efforts on Israel. Israel, unlike Hamas, has demonstrated in years past that it will respond to international pressure. This means that protesting Israel feels less futile than protesting Hamas. In addition, protesters may believe that Hamas has been punished enough, or that the civilian price is just too high, even if it means that Hamas survives to attempt “a second, a third, a fourth” attack, as a member of the Hamas Politburo, Ghazi Hamad, promised in an interview on Lebanese television on Oct. 24.
I have a different view. World pressure, including pressure from diplomats and from the streets, should focus on Hamas. Demand that it end the war by laying down its arms and freeing the hostages. By focusing on Israel, the protests and other forms of public pressure have the effect of undermining the core principles of the law of armed conflict and the rules-based international order itself.
I know that sounds like a bold claim, but let’s take a step back and look at the modern history of attempting to regulate, limit and (hopefully) abolish war. The goals have been clear — outlaw wars of aggression, enforce the law of war, and preserve the system by defeating aggressors and holding lawbreakers personally accountable for their crimes.
Yet the public demands for a cease-fire advance the interests of the unlawful aggressor (even if protesters hate Hamas) by attempting to block Israel’s exercise of its inherent right to self-defense. A cease-fire is different from a humanitarian pause. A cease-fire instead leaves the attacking force in place, able to rest, rearm, and attack again — as it has promised it will do.
The first modern, comprehensive attempt to create a more humane world order dates back to the end of the First World War. While basic laws of war certainly predate that war, the collective shock and grief at the sheer toll of the war motivated greater international action. The League of Nations was designed as a forum for mediating international disputes and preventing war. In addition, most of the world’s great powers (including the United States, Britain, France, Germany, Italy and Japan) signed the Kellogg-Briand Pact, in which the signatories renounced war “as an instrument of national policy.”
As we know, this effort failed. The United States refused to join the League of Nations and retreated back into isolationism. The Western powers lacked the will to stop Hitler, much less prevent Japanese or Italian aggression. The Kellogg-Briand Pact was dead in less than a decade.
After the Second World War, we tried again to both prevent and limit armed conflict. The United Nations Charter states that member nations “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” subject to an inherent right of individual or collective self-defense. The Nuremberg and Tokyo war crimes trials imposed individual accountability on some of the Axis architects of World War II. And a series of international agreements further refined the laws of war themselves, mandating restraint when war is justified and authorizing punishment for those who commit war crimes.
And, critically, liberal democracies have learned the bitter lessons of the past and have done much more than merely sign treaties to keep the peace. They’ve maintained an active and vigorous system of collective self-defense that has deterred great power conflict and — on occasion — directly defeated attempts to invade and destroy sovereign states.
No one could reasonably claim the system has worked perfectly. Sometimes it’s been an abject failure. The world has still seen aggressive war. Several nations have directly invaded Israel, for example. Millions have died in armed conflicts since World War II. But there has been no new world war, and there has been a broad decline in battle deaths and civilian suffering since 1945. Every war is a nightmare, but these gains are real and hard-earned.
The system, however, is fragile. It depends on political pressure, legal accountability, and — as a last resort — military resolve to maintain peace and prevent another worldwide descent into barbarism and death. The same data that shows broad declines in battle deaths also shows a spike in 2022, the year Russia launched its own aggressive war in Ukraine, and the war in Tigray, Ethiopia. escalated. For the system to work, each of these elements needs to push consistently and relentlessly against aggression and against war crimes.
The absence of military resolve in the face of brutal and aggressive war is perhaps the most dangerous. There is no worse way to undermine the world order than to allow aggressors to prevail. We don’t need to refer to the familiar history of Europe in the 1930s to remind us of the extraordinary danger of unchecked military aggression. We’ve seen the result, for example, of Vladimir Putin’s military policy. From Chechnya, to Georgia, to Ukraine, to Syria, and now to Ukraine again, it’s clear that he fights without the slightest regard to the U.N. Charter or the laws of war, and it’s clear that he’ll fight until he’s stopped.
Similarly, as noted above, while Hamas wants a cease-fire (which is in its direct military interest) it has also vowed not to stop its long war against Israel. If it survives as a meaningful military force, it will almost definitely attack again. It disregards every single international legal rule or norm.
If military resolve protects nations and destroys aggressive armies, legal process makes accountability personal. The deaths of millions meant nothing to German and Japanese leaders, for example, but the combination of Nuremberg and Tokyo meant that at least some of the worst actors could not escape the personal consequences. The law of war means nothing if violations carry no cost.
Finally, we can’t understate the importance of political pressure in democratic societies. When democratic resolve for upholding the world order falters, that order cannot long survive. It wasn’t just France and Britain that failed to stop Hitler’s rise. Congress’s rejection of the League of Nations meant the institution was doomed from the start. Military resolve depends on political resolve. Legal accountability depends on political resolve.
Let’s filter all those factors through the present conflict in Gaza. When Hamas attacked Israel, it violated rules against aggressive war. When it intentionally slaughtered civilians and then hid among civilians after the attack, it violated the most basic principles of the law of armed conflict. As a result, Israel has a right under international law to defeat Hamas, and while it is also bound by the laws of armed conflict (which credible observers already claim Israel has violated), Hamas bears the legal responsibility for the civilian deaths that result from its own violations of the laws of war.
The overwhelming weight of domestic, international and diplomatic protests against Israel turn this system upside-down. They place political pressure against Israel’s military resolve and — crucially — diminish the chances of legal accountability for the Hamas leaders and commanders who planned and executed a grossly illegal and brutal attack.
These protests also play directly into Hamas’s illegal military strategy. The entire reason for embedding in a civilian population is to make it impossible for others to respond to terror attacks without endangering or killing civilians, and an armed force that is almost certainly unable to prevail in direct combat with the I.D.F. utterly depends on outside forces demanding that Israel stops its attacks.
In addition, these protests are reverberating across the world in the absence of proof of Israeli war crimes (Amnesty International claims there is “damning evidence” of war crimes in several Israelis strikes, and those claims should be thoroughly investigated). The civilian deaths in Gaza are utterly horrific, but they are not on their face proof of I.D.F. wrongdoing. The fact is we don’t yet have the necessary information to adjudicate Israeli strikes, and the existence of civilian casualties is not proof of Israeli war crimes any more than the existence of civilian casualties in any of America’s numerous urban battles in Iraq is proof of American war crimes.
At the same time, it’s important to repeat that Israel has a legal and moral obligation to prevent unnecessary civilian suffering even as it exercises its right of self-defense. Its actions in Gaza should be scrutinized, both now and after the war. Any war crimes should be exposed and prosecuted. Moreover, as I’ve said before, not everything that’s legal is also moral. Israel should hold itself to a high standard, and it is acceptable for the United States and its allies to hold Israel to the same standards it applies to their own military actions abroad.
If the goal, however, is to end civilian suffering, the best course of action is for Hamas to release its hostages, and for its military forces to lay down their arms. That is the solution that is by far more in line with the entire postwar legal structure designed to end or limit armed conflict, and that should be the primary object of international pressure.
We were fortunate during our deployment in Iraq. We never had to fight in a hospital. We eventually obtained intelligence that allowed us to break up the suicide bombing ring by raiding the terrorists’ homes. I might have missed the alleged ringleader when we searched the hospital, but I did meet him in our detention facility. It was a chilling experience.
He addressed me in British-accented English. He claimed to have been educated at an English university, though I had no way to immediately verify his claim. Unlike most of our detainees, he was perfectly calm and composed. He approached us without an ounce of visible fear or regret.
After our raids, the suicide bombing threat visibly receded. By the end of our deployment, our section of Diyala was vastly more peaceful than when we arrived. Markets opened again. We watched people return to their homes. We won an important battle, but I can’t help but think that the terrorist won his battle as well.
The carnage he sought to create contributed to a staggering civilian death toll that became part of the terrible general cost of the Iraq war. Those deaths weakened our resolve to stay and to secure the hard-won peace. We left, only to send thousands of American men and women back to Iraq after the rise of ISIS, to fight in the same cities, against many of the same jihadists, to confront the same war crimes, to win a war we’d won once before.
I’m not naïve. I don’t for a moment believe that defeating Hamas and removing it from power solves the Israeli-Palestinian conflict. Israel cannot live up to its own democratic promise or its own liberal ideals if, for example, it indulges its own dangerous radicals. But I do know that placing more pressure on Israel than Hamas to end the conflict and save civilian lives is exactly backward. The international system depends on opposing the aggressor and punishing crimes. Protests that aim their demands more at Israel than Hamas impede justice, erode the international order and undermine the quest for a real and lasting peace.
