As an attorney, I read with great interest Rabbi Shlomo Brody’s article, “How Israel Can Respond Ethically to Hamas” (Nov. 9, 2023). Unfortunately, while he offers three ethical reasons for not engaging in reprisals, by focusing solely on the 1977 Additional Protocol I (AP/1) to the Geneva Conventions, the article left the mistaken impression that Israel could legally engage in reprisals against civilian populations. Other provisions of the Geneva Conventions and international humanitarian law would prohibit such reprisals:
1) Israel is a party to the Fourth Geneva Convention, which provides in Article 3 that “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” Article 3 prohibits “murder of all kinds, mutilation, cruel treatment and torture” and this applies “at any time and in any place whatsoever with respect to the above-mentioned persons.”
2) Even if one wanted to say that the explicit incorporation of a prohibition of reprisals in Article 51 of AP/1 indicates that such reprisals were not intended to be covered by Article 3 of the Fourth Geneva Convention, Article 51 has almost certainly been incorporated into customary international humanitarian law, meaning that it applies to Israel even though Israel has not agreed to be bound by AP/1 in general.
In addition, the suggestion is made that the United States and Israel decided not to sign AP/1 because it would prevent retaliation with a weapon of mass destruction (WMD) against a nuclear or chemical attack and because it incentivizes the use of human shields. Neither position is reflected in the official responses of the two countries in connection with AP/1. Rather, both countries acknowledged that much of the content of AP/1 applies to them because the rules constitute customary international humanitarian law, but expressed concerns with the provisions in AP/1 that treat as international conflicts under the Geneva Conventions those armed conflicts in which peoples are fighting against colonial domination, alien occupation, or racist regimes. In the words of then-US Secretary of State George Schultz, AP/1 “grants guerrillas a legal status that often is superior to that accorded to regular forces.”
In its objections to AP/1, Israel omitted any reference to Article 51, implying that Israel recognized its application. Suggesting that the United States and Israel wanted to retain the ability to retaliate with a WMD after suffering such an attack would also be inconsistent with international humanitarian law, which recognizes only self-defense as a basis for warfare. It is only in that circumstance where the usage of a WMD would be permitted legally, and signing onto AP/1 would not change that, as is reflected in the International Court of Justice’s Advisory Opinion regarding the Legality of the Threat or Use of Nuclear Weapons.
I believe that Israel is fully complying with international humanitarian law. We must be careful that we accurately describe these laws so that we have a fuller understanding of the challenges that Israel faces in defending itself, both on the battlefield and in the court of public opinion. I hope that this note contributes to the community’s greater understanding of the legal issues that exist in the law of armed conflict.
May all of our captives and soldiers come home safely, and may their efforts to eliminate Hamas as a threat be successful.