Experimental Feature: Audio Read Version
The violence beamed into our living rooms since 7 October is heartbreaking. On a human level, the high-definition suffering of both Israelis and Palestinians can be overwhelming. It was while watching Members of Parliament leaving the latest screening of the atrocities inflicted by Hamas, some quite visibly shaken by whatever they had just witnessed, that I decided to explore what the term “just war” means.
Jus Ad Bellum?
Few will argue that what we have seen and heard of the barbarism of Hamas on 7 October amounts to a justifiable motivation to retaliate. Rightly, within the provisions of international law, Israel has declared war on its aggressor. The government of Israel has a moral responsibility to retaliate, following the murder, rape, kidnap and public degradation of Israeli citizens. Vengeance is justified. Further, there is moral justification in their declaration of war to eradicate the extant threat to their citizens, perhaps a more compelling argument than pure vengeance. Legitimate authority, just cause, and right intent.
Regardless, most can sympathize with this case for jus ad bellum. That most onlookers would sympathise with the immediate Israeli reaction was a strategic gamble by Hamas. They had to do enough to incite the response that we are witnessing, suspecting that once the Israeli war machine was in motion, with the devastation that it brings, they could manoeuvre from aggressor to victim. The equation is simple: the costs Hamas expects to pay for inciting Israel are outweighed by the effect (on public opinion) of the excesses in violence they expect Israel to commit.
Jus in Bello?
Away from that hellish urban quagmire of Gaza City where the actual fighting is taking place, we observers have become the audience that Hamas sought. Our 24/7 news, protests, counter-protests, and even our dinner conversations call us to the bar in the court of public opinion. We are being asked to make a moral judgement of jus in bello. The evidence we are asked to assess? The information campaigns of both belligerents. I will argue that this moral courtroom we occupy in conversation is abstract to what is taking place. Just war provides both the license for violence and the requirement for restraint. These limits are defined in law.
The hardest conclusion to reach, in terms of actual international law and our personal values and ethics, should be: what is the limit of acceptable actions that Israel can take? I will use traditional just war theory to defend what we have seen of Israel’s response so far. Moral responsibility for the civilians of Gaza is not Israel’s alone. Traditional theory is selected because it underpins much of the codified international law and might help readers distinguish between personal moral beliefs about what they are witnessing and what is permissible in law.
I will start by highlighting a frailty in traditional theory that is evident in the law. Much of what is written deals with the importance of declared participation in war. Once war is underway, theory and law make no account of the justice (or injustice) of the causes of war. Instead, it deals solely with who is taking part. The term we are familiar with is distinction. Israel is a participant because it has declared war on Hamas, who also participates by virtue of inciting Israel into war. The fundamental truth and the reason that the issue of justice is so important, important enough to warrant a theory, is that participation makes you liable to be killed.
Participants in war also share the moral responsibility for protecting non-participants. Traditionally, this is done by deliberately distinguishing oneself as a participant. The most familiar way we do this is in the uniform we wear and by adopting the norms and traditions of conventional armed forces – by bearing arms openly and acting without perfidy. Making this crucial distinction between participants and non-participants is naturally much easier in war between states (for whom the law was written).
The aim, therefore, is to distinguish oneself from the non-participants. This enables the adversary to practice discrimination. Hamas deliberately eschews this requirement and in so doing fails in their moral requirement to protect non-participants. It is a complicated point to argue but theory lays the responsibility for harm to non-participants at the door of those that fail to distinguish themselves. Hamas, therefore, owns a double responsibility, firstly for not wearing the uniform and secondly for intentionally using civilians as human shields. In a war where narrative is as important as ground operations, the question must be asked: which side is deliberately bringing protected sites into the contested theatre?
Proportionality and Military Necessity
Revisionists to theory would argue that this dilemma should induce paralysis on the IDF. The circumstances that Hamas imposes, by failing to provide the means of distinction, effectively limit the actions that the IDF can take. Traditional theory remains applicable, however, because, despite the moral perfidy of Hamas, there remain ways to identify targets. This paradox invokes the principles of proportionality and military necessity. Just war permits the IDF to target Hamas despite the potential for harm to non-participants, providing that doing so is necessary to achieve the military end of that action. To remain just, these actions must invoke all reasonable measures by the attacker to limit harm to non-participants.
It is important to remember that the freedom afforded by just war theory to pursue military ends, despite the potential for civilian casualties, is not without caveat. To be just, any action that could harm civilians must first be proportional to the military aim being pursued. Proportionality is often erroneously construed as being in some way related to a provocation or as a reaction to a previous action. This is not the case; once war is underway, there is no requirement to re-examine jus ad bellum. Proportionality refers specifically to the effects of a course of action concerning the military ends sought by taking that action.
Hamas bears the responsibility for civilian casualties in all but those cases where IDF soldiers are proven to fail to limit harm to non-participants or where they have deliberately harmed civilians. Hamas bears this responsibility for its failure to provide the means of distinction. Just war theory provides the license to the IDF to prosecute the war within the provision of the theory but, more importantly, the law. Likewise, it provides the lens through which they will be judged if they fail to meet the exacting standard of that same law.
We must view Hamas through the same lens. We can attribute no just cause to the way they incited this war. Likewise, no benefit or doubt should be granted to how they will conduct it. We must hold Hamas accountable now and throughout for the civilian casualties we know they will cause.