October 7th: Expanding Legitimate Targets and Collateral Damage?

Abstract

This essay is written a year after October 7, 2023, when Hamas attacked civilians, whether at a music festival or in their homes, in an area referred to as the “envelope” in southern Israel, bordering the Gaza Strip. In the aftermath of that day, the Israel Defense Forces (IDF) attacked Gaza, primarily by land and air. While the articulated goal was to destroy Hamas, and to kill those directly responsible for what transpired on October 7th, the conflict exacted a significant cost on the Gaza civilian population.

The question this essay explores is whether the expansive articulation of legitimate target and resulting collateral damage is justified given what transpired on October 7th. The Geneva Conventions explicitly recognize only two statuses – civilians and combatants. Both are entitled to specific protections when detained. In 2002, the Bush administration argued that the Geneva Conventions did not apply to “unlawful combatants” captured in the so called “Global War on Terror.” Since the Obama Administration, the U.S. has used the term “unprivileged combatants” instead of “unlawful combatants,” but with a similar effect. After the 9/11 attacks, such individuals were taken to Guantanamo Bay and subjected to extraordinary methods of interrogation which would have been prohibited by the Geneva Conventions if applied to civilians or POWs. The U.S. position engendered criticism, but the debate about what protections apply to terrorists continues to this day.

Admittedly, the analysis in this essay is conducted under the cloud of war, with imperfect information, misinformation, disinformation, whilst the conflict—no longer war—continues.

Keywords: October 7, Hamas, Israel Defense Forces, Legitimate Target, Collateral Damage, International Humanitarian Law, Geneva Conventions, Combatants-Civilians, Hostages, Targeted Killing, Day After