In armed conflicts between sovereign states of conspicuously unequal capacities there is sometimes a particular kind of unequal application, or rather abuse, of the law. Some relatively less powerful states (as well as non-state bodies) have engaged in consistently unlawful operations against the more powerful adversary such as hostage-taking, co-location of their military objects with civilian objects, use of human shields, use of suicide bombers disguised as civilians, indiscriminate attacks, use of proxy forces to engage in unlawful operations while denying all responsibility for their actions and deliberate attacks on civilians. Such unlawful operations have been prevalent during the period of US military dominance since the end of the Cold War, and can be seen as a response to the US ability to fight war from the air with impunity and with a high degree of accuracy. In many cases, they are intended to lure the United States and its coalition partners into causing civilian damage and incurring international criticism: as such, they are part of what Charlie Dunlap of the US Air Force has called ‘lawfare’, or ‘the strategy of using – or misusing – law as a substitute for traditional means to achieve an operational objective’.
Adam Roberts((Adam Roberts, The equal application of the laws of war: a principle under pressure, 90(872) International Review of the Red Cross 931, 949-950 (2008). ))
The laws of war – aka “law of armed conflict” or “international humanitarian law”– at times fall short of their intended purpose. They are imprecise in providing exacting guidance. They afford vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over‑permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But they are reflective of and consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. Nonetheless, the facilitative aspect of laws of war, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying.
Reconciling the laws of war with moral theory of law, moral philosophers are divided generally into two camps – the conventionalists and the revisionists. Rutgers Law School Professor Adil Ahmad Haque offers an alternative perspective in Law and Morality at War (see my review here), highly recommended to anyone interested in squaring the ongoing events in Gaza with just war theory. While I find some of his thoughts utopic, (more on this below), his scholarship is impressive and engaging.
The conventionalist view (best represented in Michael Walzer’s seminal book, Just and Unjust Wars) holds that combatants on all sides, whether just or unjust, are symmetrically a threat to each other, and as such, enjoy equal rights, are equally/morally permitted to use force within the constraints of the laws of war, and consequently, are also morally equal. Likewise, non-combatants on all sides are considered equal and symmetrically enjoy equal/moral protection.
The revisionist view (best represented by Jeff McMahan’s book Killing in War), holds that by considering unjust combatants to have legal equality under the laws of war, explicitly authorizing them the right to kill just combatants (whom by virtue of the righteous/just war are innocent) is irreconcilable with morality. Nonetheless, revisionists accept the equality in legal treatment afforded to unjust combatants under the laws of war. The legal equality among just and unjust combatants rests not in the “deep morality” of war which reflects the moral rights and duties of individuals, but on the humanitarian view of the laws of war.
As we can see, it matters not whether we interpret the laws of war through a conventionalist or revisionist just war theory perspective; the laws of war – in particular the principles of distinction, proportionality, precaution, and the prohibition on indiscriminate attacks reflected in Common Article 3 of the Geneva Conventions and their Additional Protocols I and II – apply equally to all belligerent parties. It matters not who is at fault for starting the conflict, whose cause is just, or who has the moral imperative. It matters not whether the belligerent force is a state or a non-state actor. It also matters not whether the attacked party – whose unarmed innocent citizens were killed, kidnapped, traumatized, humiliated – covet vengeance and retribution. It matters not that the attacking party does not abide by the laws of war, and indeed, operates entirely outside them. Enjoying no preference even in moral terms, all parties are equally bound by these principles of the laws of war. Simply, the laws of war provide a set of principles and rules accommodating no ad hoc variations depending on the righteousness or lack thereof of a party.
Adhering to this jus in bello equal application of the laws of war can seem unfair. There is a dark side to it – especially when dealing with non-state actors and terrorist organizations. Dark, in the sense that a state under attack in exercising its lawful right of self-defense must strictly adhere to the letter and spirit of the laws of war, even when the adversary is not. Put differently, it is not a question of whether a state has a right of self-defense, but the way it does so. Unleashing superior military might in urban areas where civilians are trapped and where the loss of innocent life and the probability of human suffering is very high, calls for restraint – even if in doing so, the enemy is likely to benefit from it.
The dark side of it all is not that the attacked party cannot operate outside the laws of war with abandon. By adhering to them, as they must, they are put in situations where they must occasionally forgo strategic and tactical advantages. This is especially galling when the adversary is deliberately flaunting certain norms to entice an unlawful attack against it. To put it crudely, the adversary wants the attacked party to roll in the mud and get muddy with it – and in doing so, risk the loss of the legal and moral authority, not to mention international public sympathy.
Damned if you do, damned if you don’t. By adhering to the norms, a commanding officer risks incoming attacks and loss of soldiers, along with loss of opportunity to kill the adversary. Not adhering to the norms, and going for it, guarantees condemnation by international organizations, states, and civil society, while also risking loss of any sympathy and public support initially enjoyed as a result of the initial unlawful and unjustifiable attacks, atrocities, and inhumane acts against it and its innocent civilians.
To expand a bit and come back to Haque’s moral philosophical approach to the laws of war, let’s look for example at the proportionality principle. Crudely, it is about restricting the loss of civilian life during an attack that is disproportionate to the value of the military advantages expected. The lower the value of the military advantage, the fewer civilians should be harmed collaterally. Haque argues that little if anything is offered in the language of this principle to guide the combatant in meeting his moral obligations; the margin of discretion on what is acceptable incidental loss, or what constitutes a concrete and direct military advantage in a particular instance considering the overall events on the ground, is rather wide and malleable. I agree. And therein lies the rub. Where I disagree with Haque and where I find his solution somewhat utopic (as briefly discussed below) is how he conceptualized a commander’s responsibility in applying the proportionality principle.
For Haque, an attack is objectively proportionate “only if it prevents opposing forces from inflicting substantially greater harm on attacking forces or civilians in current and future military operations,” whereas it is epistemically (believed to be) proportionate “only if the attacker reasonably believes – on the basis of decisive epistemic reasons – that the attack will prove objectively proportionate.” He views the jus in bello proportionality rule to require a comparison between the harms inflicted with harms prevented; an attack should only be carried out if, based on the information reasonably accessible to the attacker, the attack will probably prevent opposing forces from inflicting substantially greater harm on attacking forces and civilians in current or future military operations than the attack will inflict on civilians. He seems to suggest that a commander should sacrifice the lives of his combatants and civilians whom he is entrusted to protect by not attacking when it appears that by attacking, the incidental harm to opposing civilians may be high.
Haque’s approach is hard to reconcile with the realities commanders face in the battlefield. Morally it may be just to opt for lesser harm even if by inaction some avoidable harm will come to a commander’s own combatants and civilians and also result in physical damage to military installations and cities (sacrificing military options, combatants, and physical property). But is this consistent with the laws of war? Is there a legal obligation? I think not. And thus, to expect a commander to follow philosophically moral precepts as opposed to executing his or her duties within the acceptable confines of the law is idealistic.
Not all parties to wars abide by the rules. It does not matter what you label the combatant – just or unjust. Those responsible in the field for prosecuting a war will do so by taking every conceivable advantage they can under the circumstances. Some will do so while refraining from breaching the laws of war, while others will pay no mind to them, or at best interpret them in such a way so as to justify the plainly unjustifiable.
What is playing out in Gaza is a good example of just how difficult it is to stay within the malleable and imprecise contours of the laws of war. Or again, to go back to my theme of this post, of the dark side of prosecuting a war while adhering to the laws of war.
As I’ve noted before (here and here), Hamas (and other terrorists) had no legal justification for infiltrating Israel to kill, injure, and kidnap innocent civilians, to indiscriminately rocket residential areas, to terrorize and victimize babies, children, women, men and the elderly. The civilians kidnapped were taken to Gaza presumably for bargaining chips, but also to be used as human shields. This would put the Israeli Defense Force (IDF) in a precarious position of having to make some difficult decision.
To limit the IDF from responding to attacks by Hamas and others for fear of killing Israeli citizens held hostage – could result in further damage and loss of life. On the flip side, overreacting – as it has seemed to have done in the past, suffering serious criticism and condemnation for heavy-handiness – would call into question any IDF claims of operating within the constraints of the laws of war. Then there is the use of innocent Palestinian civilians as human shields. By imbedding themselves in, around and under protective structures such as hospitals, schools, religious facilities, ambulances, and residential facilities, Hamas invites the IDF to overlook the dark side of adhering to the laws of war and to operate outside them.
By the looks of things, the IDF is going all out, striking any facility it claims to have Hamas fighters and terrorists. No specifics are offered other than claims that it is complying with the laws of war. But is it? Has the IDF succumb to the dark side of adhering to the laws of war, staying the hand of vengeance, of disproportional attacks, of indiscriminate killings of innocent civilians trapped in the middle with no safe place to go?
Optically, things look bad for Israel. Outwardly, it appears that the IDF has embarked on a short-sighted mission of vengeance and revenge, prosecuting the war with next to no regard for innocent civilian life – a mission that disregards many of the norms it claims to be upholding. One cannot help but think that this is it for the Gazan Palestinians – that aside from massively displacing most of the population, the aim is to ethnically cleanse Gaza completely and turn it into a bunch of Israeli settlements.
I reject the notion that this is Israel’s ultimate goal. I do however find Rabbi Amichai Friedman’s messianic claims at the IDF Nahal Brigade training base exceptionally troubling and unambiguously chilling. Under exuberance of seeing the destruction and despair and dehumanization of innocent Palestinians who had nothing to do with the atrocities committed against innocent Israelis, and gripped with racial contempt for Palestinians, hubristically (more on insidious nature of hubris below) he sermonized to young impressionable IDF soldiers on the colonization of Gaza after what he (erroneously) sees as IDF’s exquisite de-Palestinianization opportunity.
Unfortunately, the legitimate aim to cleanse Gaza of Hamas fighters and other terrorist for the sake of Israel’s security is turning Gaza into a wasteland, something out of a dystopian novel or film, with millions of Palestinians turned into refugees living in exile. Regrettably, the unintended consequences may very well end up being the de-Palestinianization of a large segment of Gazan Palestinians.
Parts of Gaza already look like Dresden. Over 10,000 Palestinian of all ages have been killed as collateral damage, according to Gaza’s Health Ministry. Hundreds of thousands have been forced to evacuate and have been left homeless with no reasonably safe place to go. There is a lack of food, water, medicine, hospital care, fuel, sanitation, and anything conceivable for normal living. And the IDF ground campaign is just getting started. Expect the human suffering and “collateral death” toll to increase exponentially.
You see, just as adhering to the laws of war has a dark side in that it places constraints on military commanders, thus increasing the risks of loss of soldiers and loss of attacking opportunities, there is an even darker side to not adhering to the laws of war. Indeed, that is the whole purpose of the laws of war – to prevent the degeneration of events and conduct to the dark side of affording little to no viable protection to innocent civilians.
In regulating the conduct of hostilities by all belligerents, equally, the laws of war aim to provide protection for civilians and civilian objects that are not in military use. Belligerents must distinguish at all times between combatants and civilians. Civilians can never be the object of attacks. All necessary and feasible precautions must be made to minimize harm to civilians and civilian objects. Disproportionately causing excessive harm to the civilian population compared to the anticipated military gain are prohibited.
These principles, along with the principle of humanity as reflected in the Martens clause, are well established and well understood. In practice, however, things get murky. General principles – even with finer precision afforded by commentaries, academic articles, and jurisprudence from international courts – do not provide black and white answers. In war nothing is static. Information is not always precise or even accurate. Yet decisions must be made, and orders issued, the consequences of which can be devastating.
Commanders do not have the luxury to engage in analysis-paralysis. They must decide whether to act or not. War lawyers are usually on the spot. These are not just ordinary lawyers. They are serving in the military. Aside from knowing the law, they understand and appreciate their client’s business. They’re expected to provide independent, informed legal advice, leaving it up to the commander to make the ultimate call. Predictably, they often come under pressure to validate (rubber stamp) what the commander has already decided to do – to provide legal justification. In doing so, they risk being complicit in greenlighting the commander’s predetermined decision. Guarding against confirmation bias can be difficult, especially when there is a perceived urgency to act.
Suffice it to say (and this may be a topic for a future post), these war lawyers are not just subject to their ethical and professional codes of conduct, but they are also subject to criminal liability and accountability. As such, presumably, these in situ war lawyers keep accurate and detailed notes, write reports, and accumulate data and documentation supporting the advice sought and given based on the available information provided to them. This way, every strike on every facility can later be explained and legally justified.
Last week, in an impassioned speech in Cairo, International Criminal Court (ICC) Prosecutor, Karim A. A. Khan, KC, could not have been clearer or more accurate when he said that the laws of war apply equally to all belligerents, and in stressing that for every strike on every facility in Gaza, the IDF will be held to account – though presumably he was not insinuating that before the ICC the burden of proof would, in this instance, contrary to the Rome Statute, shift from the prosecution to the defense.
Likewise, Israel will be held to account for the humanitarian crisis, mass evacuations and displacements, and blockage of basic necessities such as food, medicine, and fuel. The onus under the laws of war (not under international criminal law where the burden of proof lies with the prosecution and the accused enjoys the presumption of innocence) is on the IDF to demonstrate that it has acted with the prudence and restraint and caution and legality for every action is has taken.
Optically, it appears that excessive and unnecessary and unlawful action has caused a plethora of violations of the laws of war. Optically, it appears that contrary to the principle of military necessity, there is an inordinate amount of superfluous injuring and killings, and an inexplicable amount of unnecessary and inhumane suffering. Notice I say optically. The images I see and the stories of human suffering I hear on BBC, CNN, and other news outlets – all of whom are more or less reporting the same thing – are abhorrent. But the situation is much more complex and the optics do not reveal all the information relied on by the IDF in taking decisions.
None of the journalists or chroniclers are privy to what the IDF knew, when it knew it, and how reliable the sources were – when, presumably, based on the advice of its very competent and experienced war lawyers, actions were taken. For that reason, I caution against jumping to conclusions. We must wait and see if the IDF will provide access to the intelligence information it acted on, the advice commanders were given, the reports sent up the chain of command, and the orders issued downwards.
I am not optimistic. Israel is unlikely to be as transparent as it can and should be. If past is prologue, Israel is more likely to stonewall any efforts by the ICC or any other international tribunal or United Nations organization or humanitarian agency seeking answers. Then again, I seriously doubt that the US or UK or France (all liberal democracies, permanent members of the UN Security Council, and two of three being States Parties to the ICC) would be any more transparent were they in Israel’s position. National security is generally invoked, along with assurances of thorough in-house investigations; not exactly reassuring that an honest and objective outcome will result. All the more reason why the current Israeli government should cease their efforts to weaken Israel’s independent judiciary, and in particular, its crown jewel, the Supreme Court of Israel.
No one can predict where the events in Gaza will end. Israel has been clear what its goals are and that it does not intend to cease its military actions until these goals have been reached. Whether the goals are achievable, and at what price, remains uncertain. What is clear, sadly, is that the suffering will get much worse before it gets better.
In the opening lines of Hubris – The tragedy of War in the Twentieth Century (which I highly recommend), British historian Sir Alistair Horne, cogently distils hubris:
THE ANCIENT GREEKS defined hubris as the worst sin a leader, or a nation, could commit. It was the attitude of supreme arrogance, in which mortals in their folly would set themselves up against the gods. Its consequences were invariable severe. The Greeks also had a word for what usually followed hubris. That was called peripetia, meaning a dramatic reversal of fortune. In practice, it signified a falling from the grace of a great height to unimaginable depths. Disaster would often embrace not only the offender, but also his nearest and dearest, and all those responsible to him.
I raise hubris not because I predict severe consequences befalling on Israel or Israelis or the IDF, but because it seems that the goals that Israel has set out to achieve are manifestly improbable. It is hubristic to assume that once it has raised Gaza to the ground, destroyed all the tunnels, hopefully retrieved all the hostages, killed everyone suspected to be a Hamas militant or terrorist, that there will be an end its worries; that Hamas and terrorists in Gaza will be no more. Perhaps. But it is hubristic to think that others will not take its place.
The means Israel is using to achieve its goals are widely being perceived as resulting in collective punishment. Invariably, these means are likely to generate such discontent and such loss of hope, dignity, and security, that Hamas-like militants will blossom in multitudes. A humanitarian pause to alleviate the sustained deprivation of safety, food, water, fuel, medicine would be a noteworthy gesture, though for many it may be a bit too little too late. Yes, the IDF may lose some of its momentum. And yes, some Hamas militants and terrorists might also benefit from such a pause. But such is the dark side of adhering to the laws of war, which, I should stress, is the bright side of humanity.
As I write, US Secretary of State Anthony Blinken has been engaged in intense shuttle diplomacy, urging Israel, with whom the US stands shoulder to shoulder through thick or thin, providing it with enormous aid and military hardware. Secretary Blinken has been trying, to no avail, to get Israel to pause its aerial attacks and ground invasion of Gaza for humanitarian purposes. Not a cease fire, but a short pause. Israel demurs.
Seduced by its current success and military superiority, and likely infected by hubris and the righteousness of the way it is prosecuting the war, Israel/the IDF see no reason to heed the sage counsel of its stalwart friend, the US. It is somewhat reminiscent of what Moshe Dayan is reputed to have said when he was Minister of Defense for Israel: “The Americans offer us money and advice; we accept the money and reject the advice.” Not that Israel must do what the Americans are suggesting, but it seems that considering its ongoing success in the battlefield – irrespective of the unimaginable human suffering being caused – Israel is on the verge of committing hubris.
Let me end with a passage from Albert Camus’s novel The Plague. Those who have read it might recall that it is about a pandemic that ravages the North African mythical town of Oran. The plague is understood to be an allegory of an unspecified evil such as war. When the plague is defeated, there are displays of victory, as if all is solved, forever. The protagonist, Dr. Rieux cautions otherwise:
… as he listened to the cries of joy arising from the town, Rieux remembered that such joy is always imperiled. He knew what those jubilant crowds did not know, but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture and linen-chests; that it bides its time in bedrooms, cellars, trunks, and bookshelves; and that perhaps the day would come when, for the bane and the enlightening of men, it would rouse up its rats again and send them forth to die in a happy city.
I am indebted to Sir Alistair Horne for recalling this passage and for his take on its allegorical meaning, which, frankly, I had assumed – having reread The Plague towards the end of the COVID-19 pandemic – that it was more in line with the human instinct to immediately forget and not learn from experiences and historical events, as seemed evident from the lackadaisical and carefree attitude of some, including many in high-level government positions, as COVID-19 seemed to be on the way to being defeated. Rereading this passage again, and again, I find it allegorically relevant to Gaza.
Looking at six different battles, Sir Alistair Horne reminds us that resisting hubris is difficult, especially at the height of success. An insidious infection that lingers, hubris can be deep-seated, pervasive, even lethal. Israel is well advised to guard against hubris. Perhaps the time has come for Israel and the IDF to embrace the dark side of adhering to the laws of war more fully and more openly. Perhaps it has from the outset of its military campaign in Gaza, or at least so they say. Perhaps. Optically, it doesn’t appear so.
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