The Volokh Conspiracy
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Hamas, Israel, and the Death of International Humanitarian Law
Taken over by the far left, the IHL community discredited the field by going easy on Hamas and libeling Israel.
[Cross-posted at my Times of Israel blog]
International humanitarian law is dead. Ideologically motivated hostility to Israel since the Hamas massacre of Israelis on October 7 killed it.
IHL was invented after World War II. The war saw tens of millions of civilians were killed, some intentionally as in the Shoah, and some because their lives were not valued when military decisions were being made.
The underlying idea was that regardless of which side was right or wrong in any given international conflicts, armed forces on both sides have obligations to protect civilians to the extent possible while engaged in war.
If the IHL community had taken this seriously, imagine what would have happened immediately after October 7.
IHL scholars, activists, and organizations would have been unified in their intense denunciation of the massive violation of all precepts of international law by Hamas in their massacre, torture, rape and kidnapping of Israeli civilians.
They would have demanded that Hamas immediately release its hostages, and insisted that the world pressure not just Hamas but its allies and enablers in Egypt, Qatar, and Iran, to ensure the safe and unconditional release of the hostages. They would have insisted, publicly and consistently, that Hamas surrender.
And when Hamas would have then, inevitably, refused to give in, the IHL community would have denounced Hamas's failure to wear uniforms to allow Israel to distinguish enemy fighters from civilians, its intentional placing civilians at risk, its obstruction and theft of humanitarian aid, and, not least, its continuing to hold, torture, and rape hostages.
An IHL community actually devoted to IHL would also of course have had concerns about Israeli actions. They would have reviewed Israeli military responses in Gaza to see if they met the proportionality standard. That standard is quite vague, but surely IHL scholars, activists, and organizations could have contributed measured analyses and occasional criticism of Israeli actions. They also could properly have insisted that to the extent Israel took control of territory that ensured that the civilian population was properly fed and sheltered, consistent with international law.
None of this happened, of course. The IHL community, writ large, had been taken over by the far left, and for a variety of interrelated ideological reasons IHL activists are hostile to Israel's very existence, and do not believe that Israel has any right to defend itself, including from Hamas terrorism. Therefore any civilian casualties caused by Israeli military action were unacceptable.
As a result of these ideological biases, the first reaction of the IHL community to 10/7 ranged from rather tepid criticism of Hamas to exculpatory language suggesting that Hamas's actions on October 7 were understandable as an effort at so-called de-colonization. Either way, IHL people and organizations called for an immediate cease-fire and more general Israeli restraint, even though legally speaking Israel and every right to go after Hamas.
Things just spiraled downward from there. False accusations of genocide, intentional targeting of civilians, intentional starvation of Gazans, and more have been the coin of the realm the IHL world. Meanwhile, Hamas has largely been given a pass, despite the fact that its terrorist forces violate IHL every single time they take military action.
Two particularly absurd manifestations of the IHL world's anti-Israel bias stick out in my mind. First, there was the condemnation of Israel's pager operation against Hezbollah. For months, IHL activists had been alleging that at best Israel was not narrowly targeting Hamas terrorists and at worst was engaging in genocidal indiscriminate bombing. So you think these groups would rejoice and praise Israel when it managed to kill or wound three thousand enemy terrorists with almost no civilian casualties. Instead, various IHL organizations and prominent individuals accused Israel of terrorism.
After that, we may have reached the reductio ad absurdum a few months ago, when Amnesty International came out with a report accusing Israel of genocide. The report acknowledged that Israel's actions didn't really seem to meet what it called the prevailing "overly cramped interpretation of international jurisprudence" that would "effectively preclude" finding that Israel committed genocide. Amnesty's solution to that quandary, since it really, really wanted to accuse Israel of genocide, was to make up a new definition of genocide that would encompass Israel's actions.
There were a lot of failures on before 10/7, on 10/7 and thereafter. But as a law professor no failure hits home like the willingness of people around the world who claim to be devoted to international humanitarian law to ignore, distort, and pervert the law, lest it be used to protect Jews and condemn their enemies.
[Author's note: This post is based on a speech I gave at a memorial for the Bibas children, Shiri Bibas, and Oded Lipfshitz on February 26, 2025, at George Mason University's Antonin Scalia Law School. The event was sponsored by the Jewish Law Students Association.]
