Hamas’ murder of six Israeli hostages, including a U.S. citizen, is another reminder not only that Hamas remains a genuine danger to Israel, but that it is among the most immoral, illegal, and barbaric armed groups in the world.
War, by its very nature, is a brutal endeavor. The international law that regulates war justifies significant violence that would otherwise be unlawful in peacetime. It also acknowledges the legality of attacks that kill or injure civilians when it is “incidental” to an attack on a legitimate military target and not excessive in relation to the value of attacking that target—one of the most difficult assessments combat leaders must make when deciding whether to conduct an attack. This law, however, categorically prohibits deliberately attacking civilians to kill them, injure them, or terrorize them. Even launching such attacks, regardless of outcome, is absolutely prohibited.
There is, however, one rule of war that is arguably even more fundamental than protecting civilians from deliberate attack: the obligation to treat humanely any captive or detainee. This obligation is reflected in Common Article 3, a provision that is “common” to, or shared across, each of the four 1949 Geneva Conventions. These treaties—the only treaties that have been nearly universally adopted by the nations of the world—are devoted to protecting victims of war and “ameliorating” the suffering caused by armed conflicts.
A picture Israeli hostage Hersh Goldberg-Polin, who was killed by Hamas, is placed above candles during a vigil accompanied by prayers held for his memory in Jerusalem on Sept. 1.
AHMAD GHARABLI/AFP via Getty Images
Most of the provisions of these treaties apply only to “armed conflicts” between states. But Common Article 3 is the exception. This provision of the treaties binds all organized armed groups engaged in “conflicts not of an international character,” meaning conflicts that do not involve hostilities between two or more states. No such article, or obligation, existed prior to 1949. But in the wake of the brutal civil wars that raged before and immediately after World War II—most notably the Spanish Civil War, in which it is estimated that more than 250,000 civilians and detainees were summarily executed—the states that revised the 1929 version of the conventions agreed to this new obligation.
This was a remarkable achievement, as it resulted in the first application of international humanitarian law to the realm of internal armed hostilities like civil wars. States and the armed groups fighting against them were now obligated to respect what the International Court of Justice later called the “minimum yardstick” of humanitarian protection.
Since 1949, Common Article 3 has evolved to reflect the most basic humanitarian obligation of the law of armed conflict. In addition to a general humane treatment obligation applicable to any person, “not taking an active part in hostilities,” the article specifically prohibits murder and summary execution. And to reemphasize, this obligation applies to both state armed forces and non-state organized armed groups like Hamas. Murdering people at your complete mercy because they have been captured and detained is therefore rightly condemned as among the most egregious violations of international humanitarian law.
Of course, it is no surprise that Hamas operatives engaged in this barbarism. This is the very nature of every aspect of their terrorist operations, which demonstrate a complete and pervasive disregard for even the most basic rules of war. And the murder of these captives truly symbolizes the depth of their illegality and immorality. Even armed groups that abuse detainees will rarely sink to the level of summary execution. Hamas, however, once again shows the world the bottomless depths of its barbarism.
This tragic incident also reminds us that there is simply no moral equivalency between Israel and its illicit enemies. Indeed, Hersh Goldberg-Polin’s murder was only the final manifestation of Hamas’ modus operandi. He suffered months of inhumane treatment as a detainee after being gravely wounded when Hamas operatives deliberately and unlawfully attacked him and other civilians huddled together in an effort to avoid the massacre that befell hundreds of civilians at the Nova music festival.
Critics of Israel will no doubt immediately cite the (often inflated and unverified) numbers of civilians killed in Gaza as the result of combat operations in Gaza to justify their efforts at, “equality of condemnation.” But as any prosecutor can readily explain, there is no equivalency between those who deliberately kill and those who cause unavoidable killing even when following the law. This is what this comparison truly reflects: one side of the conflict that deliberately attacks and murders civilians, and another side that consistently implements its legal obligation to avoid, whenever feasible, that consequence.
War may be hell, but the hell that Hamas has created for the civilians it slaughtered, the detainees it abuses and murders, and the population of Gaza it has deliberately exposed to the avoidable consequences of war is a hell that even war does not condone. There is no comparison.
Geoffrey Corn (Lieutenant Colonel, U.S. Army (ret.)) is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law and a Distinguished Fellow at the Jewish Institute for National Security of America.
George Smith (Lieutenant General, U.S. Marine Corps (ret.)) is the former Commanding General of the I Marine Expeditionary Force and a participant in JINSA’s 2024 Generals & Admirals Program.
The views expressed in this article are the writers’ own.
