Civilians who Take a Direct Part in Hostilities: Application to Israel and Gaza

Early on the morning of Saturday, October 7, 2023, on the Jewish holiday of Simchat Torah, 1,500 members of the terrorist groups Hamas and Islamic Jihad breached the barriers that separate Israel from the Gaza strip.  The so-called “smart wall” which was supposed to prevent just this sort of surprise attack was ineffective, and the unknowing and unprepared military defense was quickly overwhelmed. 

By nightfall, the attackers had killed 1,100 civilians and taken 229 others back to Gaza as hostages. 

Israel has responded forcefully, including air and artillery strikes on more than 7,000 targets in the three weeks following the attack.  On October 28, Israeli Prime Minister Benjamin Netanyahu announced the operation’s second phase:  a ground assault within Gaza itself. That operation has resulted in thousands of deaths—most of them, it is reported, are civilians, including children.

Over the last month or so I’ve seen some pretty wacky comments about the lawfulness of intentionally attacking civilians in Israel and Gaza. (Spoiler alert: under the law of war, neither Gazan nor Israeli civilians are lawful targets.) But the complex legal, operational, and political environment in Israel and Gaza calls for more careful examination of the law concerning when civilians may be intentionally attacked, since civilians are in fact only protected “unless for such time as they take a direct part in hostilities.”

What the heck does that mean?

I explain in today's Lawfire, the great national security blog hosted by the Center on Law, Ethics and National Security at Duke University School of Law.