WSJ: Dershowitz, Education of a Wartime President

The Obama administration admits its rule on civilian casualties is unworkable in fighting ISIS. Fighting Hamas is no different.

ALAN M. DERSHOWITZ  Oct. 2, 2014 7:36 p.m. ET

Last year the Obama administration issued, with considerable fanfare, a new military policy designed to reduce civilian casualties when U.S. forces are attacking enemy targets. This policy required "near certainty" that there will be no civilian casualties before an air attack is permitted.

When Israel acted in self-defense this summer against Hamas rocket and tunnel attacks, the Obama administration criticized the Israeli army for "not doing enough" to reduce civilian casualties. When pressed about what more Israel could do—especially when Hamas fired its rockets and dug its terror tunnels in densely populated areas, deliberately using humans as shields—the Obama administration declined to provide specifics.

Now the Obama administration has exempted itself from its own "near certainty" standard in its attacks against Islamic State in Iraq and Syria. In a statement on Sept. 30 responding to questions by Michael Isikoff at Yahoo News, the administration said that in fighting Islamic State, also known as ISIS, the U.S. military can no longer comply with Mr. Obama's vow last year to observe "the highest standard we can meet."

The statement came after a Tomahawk missile last week struck the village Kafr Daryan in Syria, reportedly killing and injuring numerous civilians including children and women. The missile was directed at al Qaeda terrorists that the White House calls the Khorasan Group, but apparently the Tomahawk hit a home for displaced civilians. The Pentagon says it is investigating the incident, but YouTube video of injured children and the appearance by angry Free Syria Army rebel commanders at a congressional hearing about the attack—an attack that prompted protests in several Syrian villages—left little doubt about what happened.

If this sounds familiar, it is because in every attack on terrorists who operate from civilian areas, there will be civilian casualties. This is especially so when terrorists employ a policy of hiding behind civilian human shields in order to confront their enemies with a terrible choice: not attack a legitimate military target; or attack it and likely cause civilian casualties, which the terrorists can then exploit in the war of public opinion.

Hamas has employed this approach effectively in its periodic wars against Israel. Hamas fighters fire rockets at Israeli civilian targets from densely populated areas near United Nations facilities, mosques, hospitals and private homes. These areas, rather than the less densely populated open areas between the cities of Gaza, are intentionally selected. Hamas urges civilians to stand on the roofs of buildings that are used to store rockets and that serve as command-and-control shelters.

The fighters dare Israel to attack these shielded military targets. Israel responds by issuing warnings—by leaflets, telephone and noise bombs—to the civilians, urging them to leave. When civilians try to leave, Hamas fighters sometimes force them back at gunpoint. The fighters launch their missiles using a time delay, giving themselves the opportunity to hide in tunnels where only they are allowed to seek shelter; civilians are left exposed to Israel's efforts to destroy the rockets.

When Israel does attack military targets such as a rocket launcher or a tunnel entrance, and kills or injures civilians, Hamas operatives stand ready to exploit the dead for the international media, who are ever ready to show the victims without mentioning that they died because Hamas was using them as human shields.

Now ISIS and other jihadists in Iraq and Syria are beginning to emulate the Hamas strategy, embedding fighters in towns and villages, thus making military strikes difficult without risking civilian casualties. That is why the Obama administration has exempted itself from its theoretical "near certainty" policy, which has proved to be unworkable and unrealistic in actual battle conditions involving human shields and enemy fighters embedded in densely populated areas.

For the U.S., the fight against ISIS is a war of choice. Islamic State fighters pose no immediate and direct threat to the American homeland. For Israel, by contrast, Hamas poses an immediate and direct threat. Both the U.S. and Israel seek to minimize civilian casualties. Neither can do so under an unrealistic principle of "near certainty."

Israel has come closer to this high theoretical standard than have the United States and its various coalition partners—for instance, only Israel would employ small rooftop "knock-knock" explosives to warn civilians of a coming missile strike. Yet Israel is the only nation that is routinely condemned by the United Nations, the international community, the media, the academy and even the U.S. for "not doing enough," in Mr. Obama's words, to reduce civilian casualties. As the president is learning, war is hell. The possibility of waging it with "near certainty" of anything is a chimera.

There must be a single universal standard for judging nations that are fighting the kind of terrorism represented by ISIS and Hamas. The war against ISIS provides an appropriate occasion for the international community to agree on a set of standards that can be applied across the board. These standards must be both moral and realistic, capable of being applied equally to the U.S., to Israel and to all nations committed both to the rule of law and to the obligation to protect citizens from terrorist attacks.

The decision of the Obama administration to abandon its unrealistic "highest standard" pledge indicates the urgent need to revisit anachronistic rules with which no nation can actually comply, but against which only one nation—Israel—is repeatedly judged.

Mr. Dershowitz is a law professor emeritus at Harvard University. His books include "Terror Tunnels: The Case for Israel's Just War Against Hamas" (RosettaBooks), available now as an e-book and in hardback next month.