Modern laws of war, such as the 1949 Geneva Conventions, were defined in the aftermath of World War II. They were based on paradigms established throughout previous world military conflicts, where wars were fought between regular armies, and where death and suffering of non-combatant civilians reached a point of incredibility.
The Geneva Conventions laws of war were designed to protect non-combatants, including former but ineffectual ones such as POWs, or other enemy soldiers who could no longer pose a danger or a threat to the opposing side. The laws ruled out attacks on civilians, on doctors, ambulances or hospital ships displaying a Red Cross, a Star of David, or a Red Crescent. They prohibited the firing on a person or a vehicle bearing a white flag, since that indicated intent to surrender or a desire to communicate.
Laws of war can work as long as both sides to a military conflict respect them, and as long as the initiator of the war does not include genocide, ethnic cleansing, as his war objective or as his key agenda item. They can work providing that no side to the conflict uses the laws to their military advantage, advancing their aggressive warlike acts by using ambulances to transport troops and weapons, shooting behind human shields, behind protected symbols like a white flag, from inside a mosque, from a hospital, next to a UN post, or from a school.
Laws of war place a great deal of emphasis on intentions. They take into account the fact that even when no side to a military conflict has any intentions of violating the law, civilian deaths and suffering are inevitable. Collateral damage and deadly mistakes do play a remarkable part in the hail of fire. But, as long as care is taken and intentions are aimed at avoiding or minimizing such unfortunate casualties, errors and accidental collateral damage are not classified as war crimes.
In general, the wise people who defined the nature of war crimes, understood that wars are natural means to resolving conflicts when talking and diplomacy have been exhausted and have come home empty-handed. These judicious folks understood that wars are temporary states of affair; peace would be following the fighting, and life will go on in the war's aftermath. Consequently, they classified long-term and severe damage to the natural environment, in excess of the concrete and direct overall military advantage, as war crime too.
Unfortunately, the Geneva Conventions failed to provide guidelines for what constitutes a proper defense in the special case where an aggressor's ideology revolves around the realization of the most prevalent of war crimes, a genocidal holocaust of an entire nation, where the aggressor's tactics draw on all of the Geneva Conventions, only in reverse.
How do you respond to the Hamas terrorist regime whose aspirations call for the killing of your women, children, or any other breathing Jew?
Responding in kind violates the Geneva Conventions.
How do you respond to a terrorist regime that hides behind human shields, fires rockets, mortar, missiles into civilian targets from civilian structures, from mosques, or from other sanctuaries protected by the Geneva Conventions?
Shooting back in self-defense violates the Geneva Conventions.
How do you defend yourself when the threat over your head is existential, when you know that losing a single war amounts to a permanent death for your entire nation with no possibility of a comeback?
Could you ignore some of the Geneva Conventions when defending yourself? Could you have more leeway in interpreting the rules without being subject to criminal prosecutions? Could you be forgiven if the alternative you face is unending criminal assaults on your civilian population?
How do you defend against an enemy whose soldiers dress in civilian clothes, pretending to be innocent bystanders caught in the crossfire?
Should you be prohibited from targeting them?
The Geneva laws of war must be amended. These laws should recognize that self-defense against the worse kind of war criminals requires more leeway in interpreting how the object of the criminal assault may act upon, and what is a proper self-defense under these conditions.
Hamas and Hizbullah employ the Geneva Convention laws of war as a weapon against Israel, knowing that not only can they violate the rules or disregard them, but rather utilize them in gaining military advantage. Their criminal strategy merely gains momentum since Israel's self-defense response is subdued by the same rules.
Tolerating the utilization of human shield as an effective weapon encourages the use of human shield. Tolerating exploitation of privileged places (like mosques, hospitals, schools, and similar buildings as base for launching rockets and mortar) encourages the use of these tactics. Using ambulances for the safe movement of troops and war material rewards this action. Taking part in active battle while pretending to be civilians, knowing that Israel will hesitate targeting the violators, all encourage the use of these war crimes.
If Hamas and Hizbullah opt for war crime tactics, responsibility for their own civilian casualties must rest with them and only with them, especially in the case where Israeli response in self-defense inflicts unintentional civilian casualties in Gaza, Lebanon, or any other war-criminal state. The enemy must realize that using the Geneva conventions laws of war will not protect those who use them as a weapon in an aggressive war they initiate.
The Geneva Conventions laws of war must be amended. They should make certain that terrorist states who exploit and abuse these conventions by utilizing them to advance their illegal aggression, will not be able to do so. They should realize that a law-abiding state like Israel—a state whose fight against an enemy that violates every rule on the books, is a self-defense struggle for survival—should not be held responsible for unintentional civilian casualties assumed by the aggressive violator.