Hamas proudly committed war crimes. Is Israel's government about to do the same?

• Israel's defense minister ordered a siege of Gaza with "no electricity, no food, and no fuel."
• Intentionally starving a civilian population is a war crime, human rights lawyers say.

There is no special carve-out in international law that allows the victims of war crimes to commit war crimes in return. Nevertheless, there are signs that the logic of retribution may be prevailing within Israel's military leadership.

On Monday, following a horrific series of atrocities committed by Hamas, including the mass killing and kidnapping of Israeli women and children, Israel's minister of defense ordered that the border with Gaza be closed and no food be allowed to enter. The Israeli government also cut off Gaza's electricity and water supply. On Tuesday, a spokesperson for the Israeli Defense Forces reportedly said that the waves of Israeli airstrikes on Gaza would seek to emphasize "damage, not accuracy."

Starving civilians is a war crime. "There is no context in which such a policy can be legal," Michael Sfard, an Israeli human rights lawyer, wrote on X. Bombing a military objective without taking into account the potential loss of civilian life is also war crime. Tom Dannenbaum, a professor of international law at Tufts, wrote on X that Gallant's orders violated prohibitions against starvation and possibly the crimes of "extermination," and genocide as well. "Food, water, and essentials for survival must be allowed in," Dannenbaum wrote.

Not only does the Israeli government's emerging scorched-earth doctrine violate international law, it also violates Israeli Defense Forces' own code of conduct, known as ruach tzahal. The code obliges Israeli soldiers to "above all, preserve human life" and "limit his use of force so as to prevent unnecessary harm to human life and limb, dignity, and property."

But in Gallant's view, the targets are less than human. "We are fighting human animals and we are acting accordingly," he said. The following day, Gallant said that he was removing "all restraints" from Israel's response. Gallant's rhetoric was echoed by Israeli PM Benjamin Netanyahu himself, who referred to the adversary as "savages," a word also used by US Senator Marco Rubio, who said "they have to be eradicated." Rubio's official website clarified that by "they," he meant Hamas, not the whole of Gaza. But the scope of all three statements is less than clear in context.

Netanyahu's scorched-earth doctrine

Israel argues that the root-and-branch destruction of Hamas is a reasonable response to the October 7 attacks. Most observers acknowledge that Hamas, as an organization, is a legitimate military target and that its continued existence now poses an obvious ongoing threat to Israel's security.

But the emerging doctrine of Netanyahu's government appears to go much further than the objective of eliminating Hamas. While Israel's campaign is still in its early days, cutting off food and water suggests it could become a scorched-earth campaign of retribution against two million people who have been suffering for years under a combination of Israel's blockade and Hamas' rule. Make no mistake — the objective of such a scorched-earth campaign would have little to do with Israel's security. Instead, a campaign of retribution against civilians — of war crimes — would have a political objective: satisfy hardliners and erase the memory of the intelligence failure that allowed Hamas to carry out the attacks in the first place.

Of course, there is indeed a carve-out for such acts in international law — an unwritten one. War crimes are seldom punished if they are endorsed by a superpower. So far, the US and Europe have done little in public to push back against the Netanyahu's stated policy of vengeance. On Tuesday, President Joe Biden said he told Netanyahu that democracies "are stronger when we act according to the rule of law. Terrorists purposely target civilians, and kill them. We uphold the rule of law. It matters. There's a difference." But so far, Gallant's public order to begin starving two million people, a clear violation of international law, has gone unmentioned.

Donald Trump endorsed and pardoned war crimes

For Americans, much of this — the horror, the missed warnings, the near-instant promises of retribution — carries echoes of 9/11. So do the 22 dead Americans among more than 1,000 who perished from the Hamas attacks. What's different is the openness with which Netanyahu's government is declaring their intent to set international law aside. In the past, such extreme actions usually happened under a shroud of deniability. Violent US interventions in Southeast Asia and Latin America that killed hundreds of thousands of civilians were conducted in secret, not as a matter of official policy. Even during the bloody post-9/11 period, Western governments refrained from announcing that they intended to commit war crimes. The CIA had its lawyers arguing that indefinite detention could be reconciled with due process, and that waterboarding and beatings were not torture. The US military set mathematical limits on civilian casualties — the more collateral damage, the higher the level of approval required within the chain of command. This attempt to impose the legal principles of proportionality and necessity on drone strikes was deeply flawed, but an attempt was made.

Donald Trump was different. When it came to terrorists, he said during his first campaign, "you have to take out their families," an explicit endorsement of war crimes. As president, Trump took some small steps towards institutionalizing his stated preference for a higher volume of killing with less discriminate standards. He dropped the largest non-nuclear bomb in the US arsenal on Afghanistan and mused about using nuclear weapons. He loosened the rules governing drone strikes. But it was his rhetoric most of all that changed how his base talked about war. He made little distinction between political opponents, immigrants, and armed enemies on the battlefield. He pardoned Americans convicted of intentionally killing unarmed civilians. In his view, respect for the lives of civilians in a conflict zone was not a sign of strength, but weakness.

The shamelessness with which Trump called for the intentional killing of civilians was something new. But it took Vladimir Putin's 2022 invasion of Ukraine to fully put Trump's stated doctrine into practice — a modern military, in uniform, openly committing war crimes at scale. In Bucha and elsewhere, there is ample evidence of Russian soldiers going house to house to murder civilians, and forcefully deporting hundreds of thousands of children. A number of legal experts have argued that Russia's actions meet the legal definition of genocide, a term that President Joe Biden has also used to describe Russia's aggression. Prosecutors at the International Criminal Court at the Hague issued an arrest warrant for Vladimir Putin. They were assisted by the US Justice Department, despite the US not recognizing the ICC's jurisdiction.

Israel's military has found itself accused of widespread crimes against Palestinians in the past. Its bombardment and ground invasion of Gaza in 2014, an overwhelming response to kidnappings and rocket fire, has led the ICC to open an ongoing war crimes probe.

Gallant's order would have likely provoked more outcry had Israel's policy towards Gaza not resembled a siege already. More than 90 percent of Gaza's aquifer is contaminated; Gazans spend as much as a third of their income on potable drinking water. Electricity blacks out for ten or eleven hours each day. Hamas, the governing authority responsible for the terrorist attacks, maintains control over its own territory through less visible forms of terror — abductions, torture, and murders of Palestinians in Gaza who dissent from their rule. And these were the conditions of life in Gaza prior to the five-day-old war. Already, according to the U.N., Israeli attacks have displaced 130,000 Gazan civilians and left 400,000 without running water.

"The laws of war weren't designed only for situations in which our blood is cool," Sfard, the Israeli human rights lawyer, wrote today. "It's not easy for Israelis to think about Gazans' rights in a week when Hamas committed crimes that are still impossible to digest and our whole society is mourning and crying. But Gaza's catastrophe won't wait for the end of our seven-day shivah."