Who’s responsible for the deaths of civilians in Gaza who were near areas where Hamas operates? The New York Times tells us this:

“Hamas is responsible for civilian casualties inflicted during those strikes, Israeli officials say, because it fires rockets close to schools, offices and homes.”

I don’t know if this is an official position. I also doubt that this position can be found, in such categorical terms, in any legal memo. What I do know is that it’s a very common sentiment in Israel.

Yesterday, during our daily venture to the nearby playground, one of the few ones that have a public bomb shelter, I overheard two dads talk. “Children are dying in Gaza,” one said. “It’s not their fault that someone put something dangerous near them.” “Not my problem,” said the other – probably a self-described progressive –  while looking for his kid’s pacifier. “Do you suggest that we just take the fire?”

To an extent, this is exactly the public sentiment that drives the fighting itself, at least from Israel’s side. I also suspect that it’s not unique to Israelis, and the same views would be adopted, by some, in similar situations elsewhere. Although I’ve heard this position many times I’m often dumbstruck when I hear it in person. In most cases, it requires too much unpacking, not least for playground small talk.

Nonetheless, this is what I should’ve said.

Launching rockets or hiding weapons near civilians is reprehensible. You traumatize people by using weapons next to them. If you know that the other side is likely to return fire, you either intend that people be harmed for a public relations gain, or you’re at least indifferent to it. If you think that the other side won’t respond because of your proximity to civilians, you are using those people as human shields. Whoever does so is “responsible,” either by occasioning harm to civilians, or by using them as means. In this sense, yes, Gaza armed groups are certainly responsible for putting civilians in harm’s way. Such actions are both unlawful and immoral.

But the other position, described in the New York Times and implied by my neighbor in the park, is also wrong to the core. That Hamas is responsible in the sense described above doesn’t in itself absolve Israel from the consequences of its own actions.

The easy part is the law. Under International Humanitarian Law (IHL), the fact that one party violates its obligations – among them the obligation not to use civilians as human shields – does not release the other party from its own obligations. Additionally, law prohibits “reprisals” against civilians, which means that a party cannot break IHL rules that protect civilians to try to compel the other party to cease its violation. Both provisions reflect the basic idea that people “on the other side” have individual rights, and these are not forfeited because of the conduct of the political entity that controls them. The prohibition on reprisals also reflects the imperative that people cannot be used as means to the end of compelling someone to stop their violations.

The position is also wrong from a moral perspective. To start unpacking this, a thought experiment is helpful. Would the dad in the park hold the same position if those were Israeli children being endangered by Hamas’s location? I can imagine his answer. “It’s different,” he would say, because the IDF’s job is to protect our children, not theirs. The thing is that morality doesn’t accept a diminution of civilian lives. While it’s obviously true that the IDF’s job is to protect Israeli children, this means only that soldiers have committed to risk themselves to do so, not that they can transfer this risk to others. Can a bodyguard justify harming innocent third parties only because she has committed, and is under a duty, to protect her boss?

“But they are not innocent,” the likely response would be. “They support Hamas.” But this argument doesn’t do any work. First, it lumps everyone on the other side into one monolithic collective. In fact, nobody knows who supports Hamas and who doesn’t, least of all in the fog of war. Second, even if we could know this, bad political choices in whom to support are just that – bad political choices. We can condemn them, object to them, and if they become actions we may directly oppose them. But it’s preposterous to claim that bad political choices alone affect a person’s basic rights, including the right not be killed.

At this point, my counterpart might surely say: “well, if we don’t treat Hamas as if it’s responsible, we incentivize it to continue putting civilians in harm’s way.” Again, this takes us nowhere. First, an argument commonly made by those holding similar positions is that some armed groups want civilians harmed for propaganda aims. To the extent that this is accurate, then by absolving yourself from responsibility you are not incentivizing the other party to do otherwise – you actually give it precisely what it wants. Second, and most importantly, when justifying an attack that would likely kill civilians on the basis that this might deter similar actions in the future, you are using real, living and breathing humans – right here, right now – as means to a future, speculative and indefinite end. In other words, you are using people – including children –to convince someone else to change their policies. Third, and relatedly, there is no way to know that your actions would actually achieve such deterrence, which makes the argument fail even on its own instrumentalist – and immoral – terms.

So how should we account for civilians under the power of a group that places them in such risk? The better, and in my view, only morally defensible view, is recognizing them for what they are: hostages of the situation. Think of a scenario in which an armed gunman takes over a school and fires at people outside. In day to day life, we would think that it’s simply absurd to say that the hostage-takers are responsible alone for any hostages that die if force is used against them. Instead, we would say that the hostage-takers are indeed responsible, but the police also have the responsibility to treat hostages as innocent people in danger. I’m aware that this is not easily transposable to scenarios of active hostilities, where the fog of war is ever-present, and there is much less, if at all, control. What’s more, IHL tolerates incidental harm to civilians, as long as that harm is not excessive in relation to the direct and concrete military advantage expected from the attack. But the moral structure of the hostage-taker in war or peace remains the same, and these are the terms we should use. The lives of the civilians must remain a paramount concern for the attacking force, whatever the responsibility of the other side.

Armed groups might be responsible for harm that they occasion to civilians under their control. But to argue that this absolves the other party from responsibility is to get both law and morality wrong.


Photo: Fatima Shbair/Getty