There is a ton of good writing out there on the war in Israel. It’s so fraught with emotion and complex morality that it’s hard to keep up. I admit that I’m starting to flag a bit. There have also been some good television discusions. This was one of them and I’m glad Josh Marshall caught it:
Here are a few links I’ve bookmarked. I don’t endorse all the ideas within them necessarily but they’re all thoughtful and interesting:
It can be difficult to hold onto reason through the fog of grief that is the natural response to what has occurred in recent days in Israel and Gaza.
But international law offers a framework for how to analyze what is happening, even while atrocities and deaths from the Hamas incursion are still being documented, and the consequences of Israel’s siege and airstrikes on the crowded Gaza Strip, home to millions of civilians, continue to unfold. New information is coming out every day. Details will take time to verify, misinformation is already widespread, and it can be easy to get bogged down in debates over unconfirmed allegations. The laws of war offer a guide to what matters most, and to what should happen next.
Two principles are particularly helpful. The first is that the “why” and the “how” of war are separate legal questions. The justice or injustice of a cause of war does not change the obligation to fight it according to the rules of humanitarian law.
The second, related principle, from which much of humanitarian law derives, is that civilians are entitled to protection. Armies and other armed groups cannot target them directly. Nor can they disproportionately harm them in the course of pursuing legitimate military goals. And those obligations still apply even if the other side violates them by targeting civilians themselves.
‘Protections for human beings’
The origins of the law of war go back centuries. But its modern form was a reaction to the world wars of the 20th century. In 1928, the Kellogg-Briand Pact, an international treaty, outlawed most forms of war. It was followed by the U.N. Charter of 1945, which clarified the ban on aggressive war, the Geneva Conventions of 1949 and 1977, and the further development of international criminal law in the second half of the 20th century, leading to the establishment of the International Criminal Court in 2002.
The law governing when states can use military force is known as “jus ad bellum,” a Latin term that refers to the law regulating the use of force internationally.
Today, this law is very strict, essentially forbidding states to use force against each other except in self-defense, said Oona Hathaway, a professor at Yale Law School and co-author of “The Internationalists: How a Radical Plan to Outlaw War Remade the World.”
“It used to be the case that states could go to war for pretty much any reason,” Hathaway said. “They could go to war for debt collection. They could go to war, you know, to respond to wife stealing. They could go to war because other side is interfering with their trade relations. But that is no longer true.”
But regardless of whether there are legitimate grounds to use force, she said, all parties to the conflict are still expected to follow the humanitarian laws governing the conduct of the war itself, known as “jus in bello” — law regulating the conduct of hostilities.
Anyone who has spent much time on social media recently will have seen people conflate the justness of the conflict itself with the justness of the way it is being conducted. Some have appeared to excuse the killing of Israeli civilians on the basis that Israel’s occupation of Palestinian territories is wrong, while others appeared to dismiss the killing of Palestinian civilians in airstrikes on the grounds that Israel is right to defend itself from attack.
Treating causes and conduct as two separate questions, as the law does, is a way to hold the complexity of war and the political questions that underlie it in clear focus, without losing sight of the shared humanity on all sides.
That same goal guided the development of the laws of war. “International law has traditionally separated the two in an effort to protect people in warfare, no matter the justification for the initial use of force,” said Monica Hakimi, a Columbia Law School professor. “They wanted to make sure that both sides were equally protected in war, so as to make war as humane as possible.”
The core principle of jus in bello is that civilians cannot be targeted for military purposes, or disproportionately harmed as a means to a military end. That’s true regardless of the legality of the underlying conflict, and regardless of whether the opposing side has itself violated humanitarian law.
“The most straightforward way to think about that is just that the protections are protections for human beings,” said Tom Dannenbaum, a professor at the Fletcher School at Tufts University who is an expert on humanitarian law.
“Many of those human beings have nothing to do with violations by the state or nonstate armed groups with which they’re somehow connected,” he said. It would not make sense, he said, to reduce or eliminate civilians’ rights in reaction to the behavior of armed groups they do not control.
Civilians under fire
Hamas has killed more than 1,200 Israelis, of whom 222 were soldiers, according to the Israeli government. The civilians killed included young people attending a music festival, babies, children and the elderly.
“There is no question,” Dannenbaum said, that the Hamas assault “involved multiple war crimes and crimes against humanity, some of which are ongoing. Those are not close calls.”
The attackers also took approximately 150 people hostage. Volker Turk, the U.N. High Commissioner for Human Rights, said in a statement on Tuesday that the taking of hostages is prohibited by international law, and called on Palestinian armed groups to immediately and unconditionally release all captured civilians.
“Hamas is bound by, but has a practice of violating, the basic provisions of international humanitarian law,” Hakimi said. Acts such as systematic murder and hostage-taking are grave violations of the Geneva Conventions, as well as crimes under international criminal law.
Hamas could not be reached for comment, but Moussa Abu Marzouk, a senior Hamas political official, said that the group “obeys all international and moral laws” in an interview with The Economist on Oct. 10, three days after the attack on Israel.
In the same statement that decried hostage-taking, Turk, the U.N. official, raised grave concerns about Israel’s actions in Gaza. On Monday, Israel’s defense minister Yoav Gallant had announced a complete siege of the territory, saying that “no electricity, no food, no water, no fuel” would be allowed into the 25 mile-long strip of land that is home to more than two million people, approximately half of whom are under 18.
“The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law,” Turk said.
Dannenbaum, an expert on siege law, said that the defense minister’s statement appeared to be an unusually clear-cut example of starvation of civilians as a method of warfare, which is considered a violation of international humanitarian law, a crime against humanity and a war crime. (Though, he noted, jurisdiction over some war crimes would depend on whether the conflict is considered inter-state.)
“When you have a blanket, unequivocal, total cutoff of food, water, electricity and fuel, it’s just straightforward,” he said. “Gallant’s statement, explicit, without caveat, and from the top, stands out.”
Ophir Falk, a foreign policy adviser to Prime Minister Benjamin Netanyahu of Israel, told The New York Times on Thursday: “Israel is acting in complete compliance with international law, and always has.”
Israel has been heavily bombarding Gaza in recent days, part of a campaign against Hamas that a military spokesman said would be “bigger and more severe” than previous actions in the territory.
Under international law, even attacks on legitimate military targets are illegal if they disproportionately harm civilians, Hakimi said.
According to a Thursday statement from Gaza’s health ministry, 1,354 people have been killed by airstrikes since Saturday and 6,049 had been wounded. The previous day, the ministry said that about 60 percent of those injured are women and children. Attacks have targeted hospitals and schools where Israel has claimed that Hamas members were hiding.
Falk, the adviser to Netanyahu, said that questions of the proportionality of harm to civilians were “tactical and operational” matters that he would not discuss, but that Israel was bombing military targets, and always warned civilians that attacks were imminent. However, on Tuesday, Lt. Col. Richard Hecht, an Israeli military spokesman, said that the Israeli Air Force was too stretched to fire the warning strikes — known as “roof knocks” — that it has fired in previous Gaza conflicts to encourage Palestinian civilians to leave an area before it is hit with larger missiles. Gazans say that few warnings have been given.
And because Gaza is under siege and heavy bombardment, civilians have few avenues of escape, even if warned.
“You can have disagreements about whether something is or is not proportional, because you can have disagreements about the value of the military targets,” Hakimi said. However, there are limits to those arguments, she said, saying that it would not be permissible to justify mass civilian casualties by saying that their deaths would shorten the overall conflict, for example.
The question of what is proportional is a balancing test that has to be evaluated on a case-by-case basis, she said.
