How each side approaches the laws of war tells us a lot about them.
30th October 2023
Between 1864 and 1949 the Geneva Conventions became as close as mankind has come to a universal code of war. They can be boiled down to a handful of rules and a lot of grey area, but some of the clear, indisputable principles are;
Do not deliberately kill non-combatants or damage their property.
Do not rape.
Do not take civilians hostage.
Do not mutilate the living or the dead.
Hamas broke each and every one of these rules in its 7th October attack upon Israel. The concern over war crimes that we can expect to hear, however, will be levelled in one direction only - at the combatant which hasn’t, to date, broken any of these laws, Israel. Is this because the international community has suddenly lost its bearing when it comes to assessing the morality of the current conflict? And if so why?
After the development of nuclear weapons post WW2, the world moved away from the idea of total war and embraced the limited conflict. This meant the strict upholding of the rules of war. This is rarely easy because it involves balancing that which is right, with that which is necessary. The political analyst George Weigel correctly points out that a “rightly constituted public authority is under a strict moral obligation to defend the security of those for whom it has assumed responsibility.” In other words, this is about competing sets of virtues - where morality should be considered alongside the realistic self-survival of the state in question. Of course, Hamas is as entitled to make this difficult calculation as Israel, but we, as observers, have to be consistent in our judgement with both parties. For example, if Israel bombing a hospital is a war crime - accidental or otherwise - then it should be an equally severe war crime if the same hospital is bombed with rockets from Hamas or Palestinian Jihad.
The Issue of Body Count
One of the unique peculiarities of the Israel-Gaza conflict is the temptation by western media to shortcut the discussion of rights and wrongs by immediately fixating upon the death toll. In the Ukraine-Russia war neither side has published a running tally of its losses and no international organisation pressed them to do so - commentators were able to weigh up the respective ethics of each side without that information. However, one could legitimately argue that the Israel-Gaza conflict brings with it a history that makes it more difficult to ethically assess than Ukraine-Russia. Plus, we’re a society that fetishises statistics and data. If such tools can cut through moral grey areas and absolve us of the responsibility of grappling with difficult concepts, then what’s the problem?
Over 70 years of almost constant warfare, the IDF has been moulded into one of the world’s outstanding militaries, perfecting the art of inflicting maximum damage upon its opponents, whilst minimising losses on its own side. During the intermittent fighting between 2008 and 2014, Gaza lost around 3,500 people, the Israelis lost 88. This skill is, by and large, the aim of every country’s military but in Israel’s case it’s used by the international media as a stick with which to beat it. The statistical gulf between the sides has lead to two assumptions - that the war is asymmetrical and therefore unfair in Israel’s favour and secondly that Israel’s effectiveness is actually excessive and ‘disproportionate’. Both of these assumptions carry with them moral judgements that run in Gaza’s favour.
Jus In Bello
The problem is that the basing of moral conclusions on death toll makes for poor reasoning. In their defeat of the British Empire, the Boers killed over 400 British soldiers with a loss of only 24 of their own. Does that tell us anything about which side held the moral high ground? Napoleon killed 4 million Europeans, while Assad is responsible for 300,000 Syrian deaths, do such statistics allow us to name the ethically inferior leader? The first Gulf War stands as the most lopsided contest in modern history, with a ratio of almost a hundred Iraqi solders killed for every one American. And yet none of the many countries that supported the American intervention changed their mind because of the subsequent discrepancy in casualty figures. Indeed, it would have been bizarre for them to have done so - to have accepted the righteous necessity of declaring war, only to reject it because not enough people on the righteous side had been killed.
Death tolls can tell us a good deal about the effectiveness of military tactics and capability - or otherwise - of a field commander. But they, alone, tell us very little about the ethics of either side. The manner of the deaths tells us far more. It’s the behaviour of the combatants that counts, the jus in bello, the rules they observe when they conduct the war. Most revealing in this regard, is how they treat civilians and prisoners.
In July 1995, Serb soldiers captured the Bosniak town of Srebrenica and summarily started shooting the unarmed men they found there. Within two weeks the Serbs had killed over 8,000 civilians and raped dozens of women. ISIS massacred ten thousand Yazidis and sold thousands more into slavery, many of the men they took prisoner they crucified, beheaded and burned alive. In WW2 the Japanese enjoyed burying their Chinese prisoners alive, while during the winter of 1941 Hitler simply stopped feeding his Russian prisoners, leading to the starvation of 2 million POWs. The list of wartime atrocities goes on, but what they all have in common is the wanton cruelty inflicted upon civilians and prisoners who are unable to fight back. How armies treat such people is the best indicator of their moral standing.
How does that indicator play out in the Israel-Gaza conflict?
When Hamas attacked Israel on the 7th October, it began by firing rockets indiscriminately at Israeli towns. Once inside Israel, its fighters targeted domestic housing, killing men, women and children. Many of their victims were mutilated and raped. Even worse, Hamas has a track record of basing its missiles amidst its own mosques, schools and UN buildings. They’ve forcibly prevented Gazans from leaving their homes in areas that Israel have identified as conflict zones, and a Hamas prisoner has just revealed to Israeli intelligence that one entrance to their tunnel network is underneath the Al Shifa hospital. This tactic of using human shields works because Hamas knows that Israel doesn’t want to kill Gazan civilians. As Hamas has become better at maximising the casualties on its own side, so Israel has become the best in the world at trying to minimise them. No other nation, in no other war, has ever gone to such lengths to encourage the civilians of the opposing side to flee a battlefield - after all, this should be the responsibility of those civilians’ own representatives. Israel drops leaflets, telling people where they should go in order to be safe. They declare to their enemy where they won’t attack, so that people can flee there. They send texts to mobile phones in an area before a strike, telling them to run for cover, and they’ve even pioneered the habit of ‘roof knocking’, where they drop non-explosive devices on people’s roofs to warn them that a bomb is coming and that they should evacuate. Such behaviour hinders their own military and is unique to the IDF.
Proportionality
How Hamas and Israel approach both their own and each others’ civilians couldn’t be further apart. But what about the issue of proportionality? Here, again, the fixation on death toll warps the conversation. When American politician Ilhan Omar asked a journalist ‘how many Gazans have to die?’ in the conflict, she was making the mistake of associating proportionality to death toll. Proportionality doesn’t mean that Israel’s casualty rate has to match their opponent’s. To imply that it does is to suggest that proportionality rests on mimicking the behaviour of your enemy. Hamas raped and slaughtered 1,400 unarmed Israelis, so does Omar believe that Hamas must now offer up 1,400 Gazan civilians for the same treatment by Israelis? Would that be proportionate? Mankind certainly used to think so. The mantra of ‘an eye for an eye’ is written into the Bible and Quran and has the structure of a traditional tribal blood feud - you killed one of mine, so now I kill one of yours. If I kill more than that, then I’ve crossed an ethical line. But Europe stopped approaching conflict like this centuries ago.
In modern times, we’ve accepted that proportion isn’t about correlating casualty figures, but about the proportion of the means to the end objective. When America discovered that Bin Laden was hiding out in Islamabad, it would have been far easier for them to simply bomb the compound. But this would have caused extensive damage and loss of innocent life - they deemed that the end of catching Bin Laden wouldn’t justify the means of bombing Islamabad. So they took the more risky, costly route of sending in SEAL Team 6. In so doing they stayed within the boundaries of proportionality as defined by The International Red Cross - “suffering inflicted on an opponent must not go beyond what is necessary to achieve a legitimate military objective”.
It’s hard to ascertain Hamas’s military objective when they invaded Israel. Israel, however, have been explicit about their military objective - the destruction and removal of Hamas. This is a legitimate military objective against an armed and murderous force that is openly intent on Israel’s annihilation. Israel is entitled, for the sake of its survival, to wipe them out, just as an individual would be legally entitled to kill in self defence someone who was actively attempting to murder, torture or enslave them. So the question that must be asked is whether Israel’s actions are proportionate to the aim of removing Hamas. So far, it seems that they have been - with targeted airstrikes against military sites and limited ground assaults. Compared to the inhumane recent urban warfare in Syria, the differences in tactics are stark.
When it comes to Israel / Gaza, how did the press’s sense of proportionality become so misplaced? Much of it has to do with using body count to push the image of Israel being the superpower and Hamas being the plucky underdog. But zoom out from the Israel / Gaza border and you find Israel to be a nation of less than 10 million people surrounded by enemy states with populations that amount to hundreds of millions. If we want to frame the conflict as a David vs Goliath encounter, then it’s far from clear which party is which.
There is also a cultural dynamic here. The eminent historian, Michael Howard, says that “restraints on war grew out of the cultures of the war-making societies, rather than being imposed on them by some transcendent moral order”. In order to limit destruction and increase the chances of positive future relations with adversaries, European nations developed a code of military ethics far more stringent than those found elsewhere. Western civilisation - upon which Israel based its constitution - essentially placed limitations upon itself that other cultures did not. Taking their own rules of warfare from traditional Islamic jurisprudence, groups like Hamas and ISIS find in the Quran and Hadith almost no restraints on military behaviour when fighting non-Muslims. Hence when different cultures fight one another, we find a double standard - where one must uphold a strict code of conduct, while the other is free to operate under looser restrictions. But in truth, this shouldn’t come into our ethical assessment because both Israel and Palestine are signatories of the Geneva Conventions, meaning that both have committed to waging war according to the same rules, worthy of being judged equally.
Intention
In Sam Harris’s excellent recent podcast, he recommended judging the players in the conflict by their intentions, according to the world they’re fighting to build. This is the jus ad bellum - the legitimising of the conflict not in terms of the authorities fighting it or the methods they use, but in terms of the cause for which it is fought. Most people would argue, for example, that during WW2 the Axis were evil not because they successfully killed more Allied soldiers than they lost in return, but because of the fascism for which they were fighting.
This prompts the question, what does Israel want? Israel doesn’t want more land - it once owned both Gaza and the Sinai peninsula, and gave both up in return for the promise of peace. Fundamentally, Israel wants to be an independent Jewish state at peace with its neighbours. A Jewish state with pride parades and female education, with Arab Muslims sitting in its parliament, a free press and a democratic system. We also know what Hamas want - the eradication of Israel and all Israelis. They want to rule the land as an Islamic theocracy where homosexuality and public music are banned, where the rule of law is focused in the hands of their own militia. It’s for each one of us to conclude which future scenario we’d most like to see. But anyone who believes that a Hamas victory over Israel - from the river to the sea - would lead to peace in the region may be fooling themselves. Backed by Iran, it’s far from clear that they’d settle down to future peaceful relations with the Saudis, Egyptians and Jordanians.
Conclusion
Rules of war come with the best of intentions, but have to be approached with caution. AJ Bellamy, Professor of Peace and Conflict at the University of Queensland, points out that such laws “can produce counter-intuitive conclusions by elevating the principle of non-aggression above the principle of fighting injustice”. One prime example of this can be found in 1978 when Vietnam invaded Cambodia to remove Pol Pot, one of the most bloodthirsty tyrants of the modern age. For their efforts Vietnam faced international sanctions and the ignominy of having to defend itself at the UN. The problem here is that rules like the Geneva Conventions are only followed by those good enough to follow them. Those who ignore them rarely face consequences for doing so. The 1980 Convention on Conventional Weapons bans booby traps, but does anyone imagine that will discourage Hamas from using them in their tunnels? And does anyone imagine that the Hamas leaders will be punished for their use? Are calls for a ceasefire predicated upon Hamas leaders handing themselves over to the ICC for the war crimes committed under their watch on 7th October? If not, does anyone expect Hamas to ever answer for those crimes?
This, of course, isn’t an argument for Israel to also ignore the rules of war that they’ve signed up to honour. But we should beware a system that punishes those who play the rules and ignores those who don’t. We should accept that Israel’s response to October 7th is proportionate and that there is no moral equivalency between the two belligerents. To do otherwise would be to engage in the bigotry of low expectations. The liberal Western conscience is able to support the notions of both just war and peace, as Howard once wrote, “the former might be necessary to achieve the latter”. Indeed, any ceasefire now that doesn’t result in Hamas’s removal, only consigns the civilians of Gaza and Israel to future rounds of bloodshed and war crimes in years to come.
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