The Legality Of Forcible Hostage Rescue

Israel is facing condemnation for mounting a hostage rescue operation that led to the deaths of Palestinian civilians. How have our values become so warped that saving hostages is now controversial?

On 8 June Israeli special forces troops infiltrated the Nuseirat “refugee camp”, a town of 35,000 people in the central Gaza Strip. Disguised as Palestinians and driving a rickety-looking old car with a mattress strapped to the roof, the unit split and moved to two blocks of flats around 200 yards apart in the centre of the “camp”. Once they had located their objectives they called in assault teams from Yamam, a counter-terrorist and hostage rescue unit of the Israel Border Police, and Shin Bet, the Israeli security service.

Nuseirat refugee camp. It looks more like a town to me.

At around 11am a team entered each target building, moved to specific flats in each building and forced entry. In one of the flats they located Israeli hostages Almog Meir Jan, Andrey Kozlov and Shlomi Ziv; in the other they found 26-year-old Noa Argamani, who was famously filmed on 7 October last year on the back of a motorbike as, pleading for her life, she was abducted from the Super Nova music festival by Hamas terrorists.

Noa Argamani being abducted by Hamas last October. After this photo was taken she was subjected to eight months of abuse from her now-dead guards.

After eliminating the Hamas guards in both flats the teams moved the rescued hostages out of the buildings to vehicles that had moved in to extract them. Argamani was evacuated without serious problems, although by this time the teams were coming under heavy fire from automatic weapons and rocket-propelled grenades (RPGs). Things didn’t go quite as smoothly at the other location, where the three male hostages had been held. Chief Inspector Arnon Zmora of Yamam was shot by a Hamas guard as his team forced entry into the flat. Then, as the team tried to extract, their vehicle was disabled by Hamas fire. The Israeli Air Force carried out strikes to suppress the terrorists, and military helicopters lifted out the team and hostages.

This was a successful operation, which the Yamam operators had been training for since at least last Thursday. The four hostages had been located with the help of US and British intelligence assets; all four were rescued, after eight months of abuse at the hands of Hamas, and are now back with their families. Sadly, Chief Inspector Zmora died of his wounds in hospital, but he was the only serious casualty.

Mercy Or Massacre?

Naturally, Palestinians died during the operation. The Hamas-controlled Gaza Health Ministry claims 274 civilians were killed and over 400 injured. The Israeli Defence Forces say they believe less than 100 Palestinians died and they’re unsure of exactly how many were terrorists. Given that the operation took place in a densely populated town it’s certain that some of the dead were civilians, which is obviously a tragedy. And, of course, it’s sparked a new round of criticism of Israel.

The famously left-wing Washington Post reported the raid under the headline “More than 200 Palestinians killed in Israeli hostage raid in Gaza”, then went on to talk about a “brazen raid” and “relentless bombardment”. Spanish socialist Josep Borrell, the EU’s grandly-named High Representative for Foreign Affairs and Security Policy, called it “another massacre of civilians”. UN Special Rapporteur on the Right to Housing Balakrishnan Rajagopal, an Indian lawyer and career UN functionary, blasted “countries that celebrate the release of four Israeli hostages without saying a word about the hundreds of Palestinians killed.” The ever-admirable Wikipedia has two separate articles on the operation, one about the rescue and one about the “massacre” (and if you have any experience of editing that hellsite, you might want to get involved in the debate and help get the “massacre” one removed).

Hamas, of course, issued a chilling threat about how the rescue “will pose a great danger” to the hostages they still hold and “will have a negative impact on their conditions and lives.”

So, was this a daring rescue operation like the 1976 Entebbe raid, or was it an unjustifiable massacre of innocent Palestinian civilians? Let’s look at what happened and put that into the context of international law.

Legality of Hostage Taking

The taking of hostages is unambiguously a serious war crime under international law.

Hostage taking is not permitted under any circumstances. It is explicitly outlawed as a serious war crime - a “grave breach” - by Common Article 3, Articles 34 and 147 and Additional Protocols I and II of the 1949 Fourth Geneva Convention. It is also outlawed as a war crime by the 1979 International Convention Against The Taking of Hostages and the 1998 Rome Statute of the International Criminal Court.

Anyone who takes hostages during an armed conflict is automatically a war criminal. Anyone who participates in the detention of those hostages is automatically a war criminal, a combatant and a legitimate target for military operations.

Legality of Hostage Rescues

It is not a war crime to rescue hostages.

No international law forbids the rescue of hostages. In the case of hostage rescues during armed conflicts the standard laws of armed conflict apply: Noncombatants - which does not mean “civilians”, as civilians can be combatants - must not be deliberately targeted. Anticipated noncombatant casualties and collateral damage must be proportional to the military advantage gained from the operation.

Deliberate Targeting

The principle of deliberate targeting is not well understood. Launching an attack that is likely - or even certain - to kill noncombatants is not automatically a war crime. Let’s look at how it works:

Scenario A - A dozen unarmed civilians are standing around a coffee stall as you conduct a military operation. If you call in an air strike on them this is deliberate targeting of noncombatants, which is a war crime.

Scenario B - A dozen unarmed civilians are standing around an enemy machinegun crew. If you call in an air strike on the gun, the civilians will all be killed - but they are not the targets of the strike; the gun and its crew are. The civilians are - whether they chose to stand there or were coerced into doing so - acting as human shields for a legitimate military target, the gun. The use of human shields is a war crime. The destruction of the gun is a legitimate military operation. Even if it results in the deaths of the human shields, it is not a war crime.

Proportionality

The principle of proportionality is even less well understood. Proportionality is not determined by simply counting the bodies. A raid that rescues four hostages, but kills - let’s go for the worst-case scenario here, swallowing Hamas’s propaganda whole and assuming that not one of the dead Palestinians had a gun in his hands - 274 people is not necessarily disproportionate, and therefore not automatically a war crime. The issue is whether or not the anticipated noncombatant casualties caused by the operation are proportional to the military advantage gained from it.

Israel’s war in Gaza has two main goals. One of these is to remove Hamas from power and destroy its capability to launch attacks on Israel. That one isn’t relevant here. The other is to rescue the hostages, and this is very relevant. Saturday’s raid on Nuseirat was directly aimed at advancing one of Israel’s two primary military objectives. That means fairly high noncombatant casualties would still be proportional, and therefore not a war crime.

Planning Versus Reality

We also need to look at whether the noncombatant casualties were anticipated or not. The actual rescue doesn’t appear to have caused any noncombatant casualties at all. The Hamas guards holding the hostages were killed, of course, and that would have been part of the plan: When a team has to make a forced entry to rescue hostages, standard operating procedure is to simply kill the guards as soon as they’re identified. Doing anything else risks giving them enough time to turn their guns on the hostages or set off a bomb. When the SAS broke the Iranian Embassy siege in 1980, five of the six terrorists were shot dead on sight. The only survivor dropped his weapon and hid among the hostages; he was identified and arrested in the embassy’s garden after the assault. So the deaths of the Hamas terrorists who were actually guarding the hostages would have been planned into the operation from the beginning, and that’s fine. As I previously noted, the mere act of detaining hostages is a war crime which made them legitimate targets, so killing them is not a war crime.

If the teams had secured the hostages then left the area without opposition, it’s likely no noncombatants would have died. However, this isn’t what happened. As the teams left the area they came under fire, and one of them was actually trapped in the area when one of its vehicles was disabled by Hamas fire. If they hadn’t been extracted by IDF helicopters it’s likely they would have been overrun, the hostages recaptured and the rescue team either killed or taken hostage themselves. Therefore the extraction was necessary. The problem is that helicopters are vulnerable to small arms fire and RPGs, so before the helicopters could go in the Hamas fire positions around the trapped team had to be suppressed or destroyed by Israeli strikes.

Once Hamas chose to attack the rescue teams, air and artillery strikes on their fire positions became inevitable. And, because Hamas chose to attack in a densely populated urban area, noncombatant casualties also became inevitable. They were not inevitable before Hamas opened fire on the rescue teams. Israel can quite justifiably say that it anticipated no casualties beyond the guards, therefore launching the operation was not a war crime. However, its rescue team then had to fight its way out through Hamas terrorists who attacked them in an area full of noncombatants; the death of noncombatants during that fight is also not a war crime.

Let’s be clear on this: International law never imposes an obligation on a combatant to allow himself to be killed because his enemy chooses to use noncombatants as cover. If someone is shooting at you from a house filled with noncombatants, you can shoot back. You may not like that, but it’s the law.

So Who Killed Those Palestinians?

It’s clear that noncombatant Palestinian civilians died during Saturday’s raid on Nuseirat - but, at every stage in the events leading from the abduction of those hostages to their eventual rescue, Hamas made choices that put Palestinian lives in danger:

• They chose to abduct hostages, an unambiguous war crime under international law

• They chose to hold those hostages in an urban area filled with noncombatants

• They chose to incarcerate the hostages, under the control of armed guards, in residential buildings filled with noncombatants

• They chose to attack the rescue teams as they moved through a densely populated urban area

At any point in this sequence of events Hamas could have made a different choice, one that would have spared the lives of the innocent victims who died on Saturday. So shame on Hamas for treating the people they claim to represent as expendable pawns. And shame on the western collaborators who are condemning Israel for launching a legitimate operation to rescue the victims of a war crime.