Even as a proposed truce fails, and Israel’s military is set to “intensify” retaliation against the barrage of Hamas rockets, the admonitions have started. The UN’s High Commissioner for Human Rights has expressed “serious doubt” that Israel’s military strikes comply with international norms of war. But it is the laws of war themselves that must be questioned.
The international laws of war are widely esteemed as necessary to civilize warfare by limiting the humanitarian impact of armed conflict. They mandate, for example, the avoidance of harm to noncombatants and the “proportional” use of retaliatory force.
We can all agree that civilian casualties are an unwelcome fact of war, but these laws are rigged against Israel in this conflict—rigged against any free nation acting in self-defense. The more scrupulously Israel complies with these norms, the more it abets Hamas and undercuts its self-defense.
Morally, in defending itself, Israel’s priority must be eliminating the threat from Hamas. Hamas has declared its goal of destroying Israel in no uncertain terms. It is responsible for devastating suicide bombings and, over the years, thousands of rocket attacks from Gaza against towns and cities in Israel. Yet, against this backdrop, the laws of war enjoin Israel to practice restraint and to subordinate the objective of self-defense in the name of safeguarding civilians in a war zone.
Embracing the laws of war, the Israeli military dutifully goes far out of its way to warn of impending strikes. It drops thousands of leaflets in Arabic warning Gazans to avoid certain areas that may be targeted. It calls and texts people living in buildings where a rocket is about to hit, giving them time to evacuate. Often it fires “a knock on the roof” warning rocket, before leveling the building. It has aborted missions if civilians are spotted nearby the target.
For Hamas and allied Islamists, these Israeli measures are a tactical gift. For example, during the 2008–9 Gaza war, Hamas deliberately stashed weapons and ammunition, including Grad missiles, in private homes. And it continues to do that and to situate rocket launchers in densely populated areas. Last week, in an interview on Al-Aqsa TV, a Hamas spokesman called on Palestinians to climb to their roofs to serve as human shields against Israeli bombardment (which some Palestinians eagerly do). When a rocket lands, Hamas and its allies can stand next to corpses of its accomplices, portray them as civilians, and scream about Israeli “war crimes.”
By any rational standard, the aggressor in war is culpable for the death or injury of civilians on both sides. But the laws of war effectively push the blame from Hamas to Israel.
Or, take another principle in the laws of war: that retaliatory military force be “proportional” to the attack. Sounds sensible in the abstract, right? But it stands at odds with a free nation’s moral obligation to defend its citizens’ lives. In the name of proportionality, should Israel’s military be limited to using the same primitive, often imprecise, mortars that Hamas fires from Gaza, and nothing more? (Or: should American retaliation against Pearl Harbor have been confined to bombing precisely the same number and size Japanese warships?) The sheer fact of Israel’s military superiority casts any step it takes as presumptively disproportionate.
Compliance with the laws of war means Israel has to soften its blows, even pull its punches—and thereby, enable Hamas to continue imperiling Israeli lives.
It is a bitter but inevitable truth that, as the scholar Peter Berkowitz has noted, the armies of Israel and the United States “devote untold and unprecedented hours to studying and enforcing the laws of war,” yet they are the most vociferously attacked for supposed violations of these norms.
Witness the UN’s notoriously tendentious Goldstone Report on the 2008–9 Gaza conflict, which lapped up Hamas allegations at face value and presumed Israel’s guilt (the lead author, Judge Richard Goldstone, later backtracked from the report). If the past is prologue, expect a replay. Following Operation Protective Edge, legions of laws-of-war enforcers at NGOs and the UN will doubtless vilify Israel (yet again) for “war crimes,” while downplaying and turning a blind eye to the heinous tactics and goal of Hamas and its allies. Already Amnesty International has demanded a UN investigation of violations of international law.
The laws of war favor the terrorist aggressors and subvert the state fighting them. None of that should surprise us, because there’s an insoluble conflict between these laws and a free nation’s moral right to self-defense. Effective self-defense means using the force necessary to defeat an aggressor. But adhering to the laws of war means a nation like Israel must fight with its own hands tied. The inevitable result? More deadly Islamist attacks on Israel.
There are of course crucial moral issues in the conduct of war. But none can be answered properly, unless we start by accepting the principle that it is the paramount responsibility of Jerusalem (and every free nation) to safeguard the lives and freedom of its citizens.
Elan Journo is director of policy research at the Ayn Rand Institute. His book, Winning the Unwinnable War, analyzes post-9/11 American foreign policy from the perspective of Rand’s philosophy, Objectivism.