Jerusalem Center for Security and Foreign Affairs (JCFA)

While many commentators may have overlooked the significance, the latest wave of U.S. strikes against the Houthis in Yemen was, in fact, an expression of clear U.S. support for a legal position long held by Israel. Describing the strikes, Al-Jazeera quoted an analyst who said, “The strikes in Sanaa targeted a residential neighbourhood known to house a lot of Houthi leaders.”

This statement raises the legal question of who can be targeted, under what circumstances, and in which location.

The Laws of War, predominantly designed to deal with wars between armies, generally distinguish between two main categories: Soldiers/combatants,¹ who, while they enjoy the protections of the Third Geneva Convention (GCIII), are generally considered legitimate targets; and civilians, who enjoy the protections of the Fourth Geneva Convention (GCIV) and cannot be the subject of direct attack. The question that arises is what to do with civilians who take part in the hostilities – i.e., people who present themselves as innocents but are combatants.

The Laws of War define these people, who attempt to abuse their “civilian” status to conceal their true function, as “direct participants in hostilities” or DPHs. Under the Laws of War, DPHs are legitimate targets and do not enjoy the protection of the Third or Fourth Geneva Conventions.

Israel has been forced to deal with the question of targeting DPHs for decades.

As an intentional method of terror warfare, often referred to as asymmetric warfare, the Palestinian terrorist organizations, supported by the mechanisms of the United Nations and other actors, have intentionally tried to manipulate the Laws of War as a means to vilify Israel. Distorting reality, they refuse to recognize Hamas and the other Palestinian terrorists as “combatants” and simply declare that “Israel intentionally targets civilians.”

The most opaque current example of this phenomenon is the UN death tolls for the recent war in Gaza. Taken directly from the propaganda apparatus of Hamas, the UN statistics merely refer to dead men, women, children, and the elderly, without ever providing even basic statistics regarding the number of dead terrorists – whether those terrorists were men, women, children (who are intentionally abused by the terrorists)² or the elderly.

The UN position does not exist in a vacuum. In 2009, the International Committee of the Red Cross (ICRC) released an opinion that severely limited the temporal targeting of DPHs. According to the ICRC, DPHs could only be targeted while they were actively engaged in their terrorist activities.

What does that mean? The ICRC accepts that a Gazan terrorist involved, for example, in firing rockets to indiscriminately target Israel’s civilian population or one who infiltrated Israel to participate in the October 7, 2023, massacre can be classified as DPHs. However, per the ICRC, that classification ends one second after the terrorist ignites the rocket firing mechanism and returns to his “day job,” or once the terrorist is no longer participating in the massacre. At such time, according to the ICRC, they resume their “civilian” status and can no longer be the subject of a direct attack.

The ICRC opinion, which ignored the actions of terrorists and was legally flawed, was rejected by almost everyone – except the terrorists and their sundry (including the UN) supporters.

Criticizing the flawed approach, former Canadian JAG Kenneth Watkin wrote³ that the ICRC definition “failed to attract universal consensus on terms that by their nature are both amorphous and contextually contingent. Resistance to the Interpretive Guidance resulted in part because it is viewed as having defined DPH too narrowly and has suggested applying it in too restrictive a fashion that does not match the realities of contemporary conflict (see the U.S. DoD Law of War Manual, para. 5.8.3, pp 228-32, as well as analysis here, here, here and here).”

In a similarly comprehensive discussion on the subject, Prof. Michael N. Schmitt explained⁴ how terrorist organizations, such as the genocidal Gazan terrorists who carried out the October 7 massacre, can be viewed in the Laws of War as “Organized Armed Groups” (OAGs) and noted that the United States takes the broader position that OAG members are targetable merely while they remain members irrespective of their temporal actions. As support for his position, Schmitt quoted the US Army/Marine Corps Commander’s Handbook on the Law of Land Warfare,⁵ which provides:

Membership in the armed forces or belonging to armed groups, that is, affiliation with these groups, makes a person liable to being made the object of attack regardless of whether he or she is taking a direct part in hostilities. Moreover, the individual, as an agent of the hostile group, may be assigned a combat role at any time, even if the individual normally performs other functions for the group. Thus, with limited exceptions, combatants may be made the object of attack at all times, regardless of the activities in which they are engaged.

Herein lies the fundamental conflict between the forces fighting international terror and terrorists and those defending the terrorists.

Using the widely accepted definition of DPH and membership in OAGs, Israel has targeted hundreds of terrorists from Hamas and other Gazan terror organizations. Many of these terrorists were targeted, similar to the U.S. strikes against the Houthis, in their homes. While these strikes sometimes also resulted in the death of civilians, they remained legal and legitimate under the Laws of War and the principle of “proportionality.”

Contrary to popular misconception, the principle of “proportionality” does not refer to a tit-for-tat situation in which the terrorists fire X rockets, and the other side is limited to a similar response using the same X number of munitions. Similarly, the principle does not require that an attacked country limit its response to killing a similar number of combatants on the other side as that side killed in the initial attack.

Instead, the Laws of War and “proportionality” accept that incidental or collateral damage may be caused when a military target is attacked. Attacks of this nature are legitimate so long as the loss of life and damage to property incidental to the attack is not excessive in relation to the concrete and direct military advantage expected to be gained. As the value of the military target grows, so too does the extent of permitted incidental damage. The principle does not limit the extent of the response or the number of casualties on the opposing side.

In its strike in Yemen, the United States was implementing the same position held by Israel. The Houthis are terrorists, no different from their Hamas partners in the Iranian axis of terror. As such, its members and leadership are legitimate targets even when sleeping in their beds.

When the United States attacked those Houthi leaders in their homes, they were not only targeting the terrorists but also, possibly inadvertently, providing substantial support for Israel’s approach towards the Gazan terrorists.  

The meaning of this support cannot be understated. If hostile elements such as the UN and the International Criminal Court were to rule that Israel’s actions were illegitimate, in practice, they would also be condemning the similar U.S. approach. Since vilifying Israel alone, or even prosecuting Israeli officials for acting in accordance with the Laws of War as accepted by Western countries, would be discriminatory, the support given to Israel by the recent U.S. attack is not restricted to defending Israel against the Iranian-backed, direct Houthi kinetic aggression, but rather, also provides Israel with a much broader legal security blanket. 

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Notes