Are Gazan citizens who hold hostages a legitimate military target?
Earlier this week, an announcement that dozens of civilians in Gaza were killed in a countermeasure intended to eliminate senior Hamas official Raad Saad. Reports of civilians being killed during an attack have become common in recent months.
One of the questions that always comes up is whether the victims were "involved" or "uninvolved" citizens. In the same context, ministers, Knesset members, public figures, and the like repeatedly state that "there are no non-involved people in Gaza." It is hard to say whether this blanket statement is true, but its practical meaning is not as blanket as they try to present it.
It seems that the basis for the discourse on "involved" and "uninvolved" citizens is rooted in the long experience of jurists and military experts in trying to clarify that even during combat, there is no legal or moral legitimacy for the sweeping use of force against civilians who are not part of the fighting forces. For that reason, a simplistic distinction was made between civilians. The purpose of this discourse was not necessarily to claim that "involved" citizens are a legitimate target but to emphasize that "uninvolved" citizens are not a legitimate target for a direct attack.
Using these terms in the last months requires us to look more deeply at their meaning. According to the laws of war, it is forbidden to directly attack civilians unless they take a direct part in the fighting.
It is important to clarify that there is a significant gap between involved citizens and citizens who take a direct part in the fighting. While every citizen who takes a direct part in the fighting is surely an "involved" citizen, not every "involved" citizen necessarily takes a direct part in the fighting simultaneously. An attack directed against civilians who do not take a direct part in the fighting is a serious violation of the laws of war. It constitutes a war crime in itself, even if these civilians are "involved" in the fighting in certain respects.
For example - citizens who handed out candy in Gaza on October 7 may well be "involved" in their support, but they certainly do not take a direct part in the fighting. On the other hand, citizens who kidnapped and actively assisted in the kidnappings on October 7 took a direct part in the fighting at the time of the abduction itself. The range in between is very wide and complex and cannot be treated comprehensively.
Tents of Gazan evacuees in Rafah (credit: REUTERS)
Tents of Gazan evacuees in Rafah (credit: REUTERS)
The case for "involved" and "uninvolved" citizens in Gaza
Two more complex examples are of a citizen in whose home Hamas weapons are kept under the children's beds and a citizen who keeps stolen property in his home or helps move it from place to place. On the one hand, there is no doubt that these are cases of "involved" citizens who support and aid Hamas. On the other hand, without taking a principled position regarding these cases, whether it is about taking a direct part in the fighting, which makes them a legitimate target for attack, depends on the totality of the data and the circumstances of each individual case. That is, the discussion is more complex than the simplicity in which they try to present it.
The statement "there are no non-involved people in Gaza" can be interpreted in several ways. It is a statement intended to justify any use of force and any killing in Gaza as legal. On the other hand, this statement can be regarded as inciting genocide or even establishing an intent to commit genocide because it legitimizes in advance the widespread killing of civilians in Gaza (for example, anyone who distributed candy or voted for Hamas).
In South Africa's arguments against Israel at the International Court of Justice in The Hague, senior Israeli officials were quoted as saying that there are no uninvolved civilians in Gaza as inciting and encouraging genocide. When it is understood that there is a distinction between Gazan civilians, it is also understood that every statement made by politicians and public figures cannot be regarded as encouraging genocide in Gaza.
The fighting in Gaza is complex, and the challenges facing the IDF in carrying out the mission are unprecedented. Our tendency to simplify the rules into a binary framework of "involved" and "uninvolved" citizens is understandable. However, it is important to understand that only the civilians who take a direct part in the fighting are legitimate targets for attack.
Israel's dealings in the international arena, especially in the global legal arena, require one to be careful of inaccurate and sweeping statements that are much more harmful than helpful.