June 11, 2024

How International Humanitarian Law advantages terrorists

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by Farhad Rezaei, Senior Research Fellow

The US and Western allies must revise International Humanitarian Law to deprive terrorists and their sponsors of military and public relations advantages.
How International Humanitarian Law advantages terrorists

On March 14, 2024, Israel sent a letter to President Joe Biden, committing itself to using American weapons and munitions in accordance with international law. The letter was a response to the National Security Council Memorandum-20 (NSC-20) announced in February, which requires recipients of American security assistance to obey international statutes, specifically International Humanitarian Law (IHL).

While aiming to uphold humanitarian standards, this move inadvertently benefits Hamas and may prolong the conflict in Gaza. This situation underscores the need for a reevaluation of IHL protocols that provide terrorist groups and their supporters with undue advantages.

U.S. Senator Chris Van Hollen (D-MD) and a group of progressive legislators who sponsored the initiative framed their actions within American values. U.S. Senator Tina Smith (D-MN) asserted that “America is stronger and safer when we act in accordance with the rule of law and hold our allies to the same standards.” Critics, however, cited opinion polls showing that President Biden is in danger of losing the election and needs to shore up support in several swing states with sizable Muslim populations. According to this viewpoint, curbing Israel’s war effort in Gaza is the only way to appease the Democratic Party base.

Regardless of motives, the NSC-20 is a tall order to follow in asymmetrical conflicts with terrorist groups. The Geneva Conventions and related provisions are the basis of the modern “Just War Theory,” which encompasses two subcategories: jus ad bellum, provisions specifying when embarking on war is justified, and jus in bellum, provisions dictating the conduct of war, namely the principles of proportionality and precision that require armed forces to do their utmost to minimize harm to noncombatants. Several absolute prohibitions are included. Civilians can only be targeted if they participate in the hostilities, and civilian infrastructure can only be targeted if it is used for military purposes. Special protection is accorded to medical facilities; even when used as a military platform, they cannot be attacked without prior warning.

There is little doubt that Hamas’ unprovoked brutal attack on the Jewish communities, replete with cases of extreme sexual violence, beheadings, and the burning alive of victims and hostages, justified an Israeli response along the lines of jus ad bellum.

Read the full article in The National Interest:

Does International Humanitarian Law Prolong Conflicts?

Read more from The Philos Project’s Senior Research Fellows