On March 14, 2024, Israel sent a letter to President Joe Biden, committing itself to using American weapons and munitions in accordance with international law. The letter was a response to the National Security Council Memorandum-20 (NSC-20) announced in February, which requires recipients of American security assistance to obey international statutes, specifically International Humanitarian Law (IHL).

While aiming to uphold humanitarian standards, this move inadvertently benefits Hamas and may prolong the conflict in Gaza. This situation underscores the need for a reevaluation of IHL protocols that provide terrorist groups and their supporters with undue advantages.

U.S. Senator Chris Van Hollen (D-MD) and a group of progressive legislators who sponsored the initiative framed their actions within American values. U.S. Senator Tina Smith (D-MN) asserted that “America is stronger and safer when we act in accordance with the rule of law and hold our allies to the same standards.” Critics, however, cited opinion polls showing that President Biden is in danger of losing the election and needs to shore up support in several swing states with sizable Muslim populations. According to this viewpoint, curbing Israel’s war effort in Gaza is the only way to appease the Democratic Party base.

Regardless of motives, the NSC-20 is a tall order to follow in asymmetrical conflicts with terrorist groups. The Geneva Conventions and related provisions are the basis of the modern “Just War Theory,” which encompasses two subcategories: jus ad bellum, provisions specifying when embarking on war is justified, and jus in bellum, provisions dictating the conduct of war, namely the principles of proportionality and precision that require armed forces to do their utmost to minimize harm to noncombatants. Several absolute prohibitions are included. Civilians can only be targeted if they participate in the hostilities, and civilian infrastructure can only be targeted if it is used for military purposes. Special protection is accorded to medical facilities; even when used as a military platform, they cannot be attacked without prior warning. 

There is little doubt that Hamas’ unprovoked brutal attack on the Jewish communities, replete with cases of extreme sexual violence, beheadings, and the burning alive of victims and hostages, justified an Israeli response along the lines of jus ad bellum.

However, the IHL’s jus in bellum requirements have created considerable problems when applied to fighting jihadi terrorist groups, including Iran’s proxy militias. Ayatollah Khomeini, the founder of the Islamist regime, revised the quietist Shia tradition by proclaiming that Velayat-e Faqih (a capable jurist) would rule Iran until the Twelfth Imam (Mahdi) returned from his “occultation”—or hiding—before the end of days. Known as neo-Shiism or Khomeinism, the new theology came with an eschatological revision: it postulated that the Mahdi would return when Jerusalem was liberated from Jewish hands. 

Neo-Shia eschatology had significant relevance to Iran’s foreign policy because Khomeini declared that the 1979 revolution was just the first phase of the process that would see Jerusalem reverting to Muslim control. In terms of international relations, the regime used its “divine mission” to score political points against the Sunnis by leading a campaign against Israel, the “Little Satan,” and its alleged patron, the United States (the “Big Satan”).

Devastated by the revolutionary upheaval and the war with Iraq, the new Iranian regime lacked the resources to take on a regular and robust army such as the Israel Defense Forces (IDF). Instead, the Islamic Revolutionary Guards Corps (IRGC), the parastatal military force loyal to the supreme leader, adopted an asymmetrical form of warfare based on the theory of Brigadier General S. K. Malik, an Islamist who served on the Pakistani High Command. In his book, The Quranic Concept of War, General Malik urged jihadists to wage a relentless and ruthless war against the enemy—militants and noncombatants. He also decreed that it was the duty of Muslim civilians caught up in the battles to die for the jihadi cause.

The IRGC used these ideas to create a doctrine that gave their proxies, mostly Shia militias, significant advantages over a regular army following what jus in bellum dictates. Hassan Abbasi, the head of the Borderless Doctrinal Analysis (known to some as the “Dr. Kissinger of Islam”) and the Center for Asymmetrical Warfare, refined these tactics. Key among them was embedding operatives within the civilian population in private homes and public spaces such as hospitals, mosques, schools, and libraries. 

To further complicate the enemy’s assault, proxies were encouraged to build tunnels in civilian areas. In the early 1980s, the IRGC hired North Korean engineers to build an extensive network of tunnels and command bunkers for Hezbollah. Rooms with retractable roofs were added to houses in Shia villages to store rockets and missile launchers. Proxies were ordered to use civilian vehicles, notably ambulances, to transport fighters and military equipment. Abbasi explained that a regular army would be reluctant to kill large numbers of civilians and suffer the consequences of violating IHL. In other words, human shielding was a significant force multiplier since it compromised the adversary’s ability to use force effectively.

The Iranian regime was also a proponent of a soft war waged in cyberspace. According to the Foreign Ministry-affiliated Institute for Political and International Studies, Ayatollah Khamenei inspired so-called “quantum diplomacy,” the notion that a military struggle should be pursued both in the physical and virtual realm. The latter encompasses an elaborate public relations campaign that delegitimizes the opponent by manipulating and misrepresenting the physical reality of the conflict. Khamenei later proclaimed that “the media is more effective than missiles, planes, and drones in forcing an enemy to retreat and to influence hearts and minds. All war is a media war; whichever actor has greater media influence will achieve their goal.”

The Second Lebanon War in 2006 was considered a successful test of the IRGC’s Islamist embedding doctrine. Abbasi praised Hezbollah for “skillfully” mixing military forces with civilians and stashing “military hardware and communication systems” in cities. IRGC leaders were elated because Israel suffered considerable reputational damage in the international arena, compounded by Hezbollah’s refusal to release separate tallies for militant and civilian deaths. Human rights groups repeated the militia’s claim that more than 1,100 Lebanese died, adding, without evidence, that the “vast majority” of the dead were noncombatants. Israel reported forty-three civilians and 116 soldiers as killed, making for a dramatic skewing of the proportionality principle. Abbasi described how Hezbollah sabotaged IHL using a soccer analogy: “The rival can arrange their players according to their rules […] the court is theirs, but we will set the game rules.”

After Hamas gained control of the Gaza Strip in 2007, the Quds Force (QF), the foreign operation unit of the Guards, rushed to create a “little Lebanon” there. Using the Hezbollah blueprint, Hamas created a gigantic terrorist superstructure that boasts a 310-mile tunnel system and myriads of embedding platforms in both public spaces and private homes. Aware of the IHL injunction against bombing hospitals, the Al-Qassam Brigade, the military wing of Hamas, prioritized hospitals and clinics, including the chief medical complex in the Strip, the Al-Shifa Hospital in Gaza City. The scope, dimension, and sophistication of the terrorist operation discovered in the wake of the Israeli ground offensive demonstrated the group’s extensive use of human shields. Mousa Abu Marzuk, a high-ranking Hamas official, admitted that the tunnels were built to protect the fighters. He explained that civilians who had no bomb shelters were the responsibility of the United Nations (UN). 

During operations in various Gaza sectors, Israeli soldiers encountered numerous instances of extreme human shielding: terrorists firing from behind women and children, mingling with patients, storing equipment in hospital wards, and even operating theaters. On several occasions, militants fired rockets from civilian protection areas. 

Hamas, which has built up an impressive cyber operation, also adopted Hezbollah’s tactics of manipulating and misrepresenting numbers. The Hamas-controlled Gaza Ministry of Health provided only a single count of all casualties and refused to acknowledge cases where the Al-Qassam Brigades’ misfired rockets killed civilians. A recent statistical analysis found Hamas to be inflating the casualty rates to boost the narrative that the vast majority of the dead were women and children. Nevertheless, international media and many American officials, including Defense Secretary Lloyd Austin, have used the Gaza Ministry’s version.

In yet another public relations ploy, Hamas claimed that IDF soldiers raped women in the Al-Shifa Hospital and burned entire families. The claim was published and then removed by Al Jazeera, sparking a storm on social media. When public panic in Gaza followed, the militants were forced to retract the allegations, but the story has not vanished. Separately, a State Department official working on the Israel-Palestinian portfolio accused the Israeli army of committing “systematic sexual abuse.”

The terrorist group has also extended its deception to the delivery of humanitarian aid to the Palestinian population. The IDF documented multiple cases of militants stealing aid from trucks that entered Gaza. In one case, the Israeli military was accused of firing at civilians waiting for assistance in Kuwait Square in Gaza City, killing twenty-one people. The IDF’s probe found that Hamas gunmen fired at the Palestinians who began looting the trucks. The claim that famine was imminent in the north of the Strip led to widespread accusations that Israel was using starvation as a tool of war. Israel’s explanation that looting and chaos impeded aid delivery had little impact on the starvation narrative. On the contrary, the Integrated Food Security Phase Classification (IPC), produced by a coalition of human rights groups with ties to the UN and the World Health Organization, blamed Israel. Since some of the partners, such as Oxfam and UNICEF, have a long anti-Israel history, such an interpretation is not surprising.

Read against this background, the NSC-20 adds another layer of complications. As noted, Iranian proxies waged a sophisticated form of warfare designed to challenge the critical parts of IHL. Defined by experts as “lawfare,” it is designed to destroy the legitimacy of the opponent by abusing the legal system and its instructions to delegitimize Israel. In lawfare, high civilian casualties are not a humanitarian tragedy bemoaned by IHL advocates but a valuable tool to increase the disproportionality rate, as Abbasi has pointed out.

Facing a wall of obfuscation, observers looking to bypass fabricated accounts have been frustrated. Local journalists under strict Hamas control and the few international media outlets that rely on local stringers are not suitable alternatives. Satellite images, videos, and pictures are not granular enough to provide a reliable remedy. The CIA and other foreign intelligence agencies compile reports but do not publish their findings. Israeli accounts have been rejected as self-serving despite several experts noting that the IDF’s record for avoiding civilian harm was above average, given Hamas’s extreme human shielding. 

There is little doubt that the Gaza War has shown the limits of IHL in fighting jihadi terrorist groups. Hamas cannot defeat the IDF and has used the death and suffering of Palestinian human shields to rally international support. Indeed, after meeting with the head of Hamas’s political bureau, Ayatollah Khamenei reaffirmed his belief in the importance of media warfare, adding that the “propaganda and media campaign of the Palestinian resistance has been very successful and ahead of the Zionist enemy” and urged more media action.

Pressuring Israel alone to uphold humanitarian standards is counterproductive because it allows Hamas to survive and fight another day. Memorandum-20 extends this policy to other American allies who may fight terrorist groups pursuing extreme human shielding. History shows that, as an unintended consequence, humanitarian laws have prolonged asymmetrical conflicts.

Yemen serves as an illustrative historical example. While the international community has sent massive aid donations to prevent starvation among Yemeni people, Houthi rebels, who controlled Hodeida—where 80 percent of this aid was received—have misused these resources. By disproportionately distributing aid to their loyalists, the Houthis have managed to survive and extend the conflict.

Thus, the United States and its allies must revise the IHL protocols in ways that would deprive terrorists and their sponsors of military and public relations advantages. Reviewing the policies of the United Nations and the scores of groups that populate the human rights ecosystem would be an excellent first step in this process.

Dr. Farhad Rezaei is the director of Christian Watch on Global Islamism at the Philos Project. Follow him on X: @Farhadrezaeii.

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