Thinking about Israel, Gaza, and the Laws of War

Let’s start with this: The untimely death of any innocent is, at a minimum, a tragedy. That’s true whether it’s a mother who dies in a car accident, a brother who falls off a high building, a daughter killed by an assailant desiring her death or a grandfather killed in a crossfire. I’m describing these people in relational terms – mother, brother, daughter, grandfather – because each of these losses are losses not just to the world, but to other living, breathing, feeling human beings, for whom they were the world. To the people left behind, the cause of the loss is almost irrelevant; the untimely loss of a child is no less painful when that loss is an accident than when that loss is the result of an intentional murder. Almost, because the cause of the loss can impact other things; we can potentially take some comfort if we think a loss has meaning, as when a family member dies saving others, and we can rage at the perpetrator or the world when a loved one is murdered, or killed by negligence or carelessness or random chance. But the loss is the loss is the loss, all the same.

That’s all the truer from the perspective of the dead. A child killed in war doesn’t suffer more or less pain depending on whether they were targeted for death or killed incidentally, on whether the person pulling the trigger wanted them dead or wanted to save their life, on whether the commander who ordered the bombing was painstakingly careful or entirely careless. The death is the death is the death – and the suffering is the suffering is the suffering.

I start with this because I have to. Not as some box-checking exercise, not as a prophylactic attempt to ward off criticism – don’t make me laugh, that’s not going to happen – but because it’s fundamental to everything that follows. And also, because I can’t do anything else but start with this, with this basic fact of everyone’s – everyone’s – humanity that has been clawing in my chest for weeks now, no matter how many times I let it out into the world.

I bathed my daughter a few Fridays ago, getting her ready for Shabbos. Brushing her hair, watching her play and slide around in the tub. She sang and danced and laughed, eyes sparkling. And the thought that would not leave my mind was of the Israeli parents who would have done the same on October 6, not knowing – thank God for small favors, not knowing – that their children would need to be buried soon. And the other thought that also would not leave my mind was of parents in Gaza who, if they had the water, would be bathing their children not knowing whether it was to clean them for their own funerals.

It's an intolerable thought. One that causes physical pain. Nausea. Revulsion. Just … know that, as you read through the rest.

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Civilians die in war, and when they do, it isn’t always a crime under the laws of war. In fact, most of the time it isn’t a war crime. And it shouldn’t be.

War is a lot of things, essentially none of them good. And from a legal and ethical perspective, war is the worst possible thing: a giant trolley problem.

The trolley problem is a thought experiment beloved of Intro to Philosophy professors, ethicists, and masochists. Imagine a run-away trolley rolling down a track, about to hit 5 innocent bystanders. The only way to save them – and for the trolley problem to work, it has to really be the only way, no heroic imaginative solutions – is to pull a lever to shift the trolley onto a second track. The problem? There’s an innocent bystander on that track as well. Do you pull the lever, choosing to kill one innocent to save five? Or do nothing, and by your inaction allow five innocents to die in order to protect one? And it’s infinitely variable. What if the number of people on the track are equally balanced? What if one group is all children? All hardened criminals? Elderly men and women? What if the only way to stop the trolley isn’t to flip a lever, but to push someone in front of the wheels? What if the deaths on one track are uncertain and on the other are certain? Or more certain? How, in other words, do we weigh the ethics of action against inaction, the value of one life against another, and risks against potential benefits to decide what appropriate conduct looks like?

The laws of war provide rules to define that balance in the context of war. As with all international “law”, they are more notional and normative than constraining; not only does international law arise via treaty and agreement (and conduct) by the states subject to it, but there isn’t really anyone that can enforce international law. There’s no sovereign that can simply arrest and try Bashar Assad, for example, for his use of weapons against his civilian population. And on a very real level, that makes discussions of international law somewhat of a joke. A “speed limit” for which there is no enforcement at all – no police pulling you over, no automated ticketing, nothing – isn’t actually a speed limit. It’s a suggestion. And in many ways, so is international law.

But whatever else the laws of war accomplish, they provide normative guidelines for moral conduct in war and a useful framework for evaluating the way a war is conducted. The concept of jus ad bello focuses on when it is just and allowable to resort to war; you can’t do it because a neighboring state insulted your cultural heritage, but you can in response to a military attack on your territory. And the concept of jus in bello focuses on the morality of your conduct in that war; even if you were attacked and can morally respond with violence, that’s not carte blanche to do anything you want in return.

There are three primary rules governing conduct in war: distinction, proportionality, and necessity. Distinction means your attacks must be targeted at (and capable of being targeted at) combatants or military objectives (like a munitions depot), not civilians or civilian objects. You can’t aim to hit non-combatants and you can’t spray-and-pray, either; it’s no defense to say “well, I wasn’t aiming at anyone in particular, so it’s not like I was trying to kill civilians.” And you can’t claim that civilians are a military objective because targeting them coerces or deters military response from your opponent; reprisals are not allowed. But if you are attacking a military target, the laws of war allow you to cause ancillary damage to civilians and civilian objects; doing so doesn’t violate the principle of distinction.

Proportionality limits that permission, and is one of the most misunderstood principles in the laws of war. Proportionality does not mean tit-for-tat or “in proportion to the harm you suffered from the other side’s attack.” It means that attacks that target a military objective but are expected to cause ancillary damage to civilians and civilian objects cannot cause more such damage than is warranted by the legitimate military objective. In the antiseptic language of the rule, the damage to civilians or civilian objects cannot “be excessive in relation to the concrete and direct military advantage anticipated.” What does that mean? We’ll come back to that in a second.

Necessity is, in effect, a further limit on proportionality: even if your attack was proportional, was the harm to civilians necessary? Could you, in other words, have accomplished the same valid military goal using methods that would have reduced the harm to civilians even further?

Taking all three together, the laws of war limit a combatant’s ability to fight and win wars. There are certain tactics – reprisals, attacks on civilians, wanton destruction – that can never be used. And even where the target is military and the gain meaningful, you can’t simply ignore harm to civilians as irrelevant.

But there’s still a problem. The principle of distinction is incredibly clear cut. Whether a target is lawful to attack at all is an objective reality, determinable from available facts. Hamas attacking the Nahal Oz army base wasn’t a war crime, because that base was a military target. Hamas attacking the Nahal Oz kibbutz was a war crime, because that kibbutz and its residents are civilian. Reaching those conclusions takes no effort at all. But proportionality and necessity are subjective assessments that rely on projections, evaluations of available alternatives and their relative likelihoods of success, and judgments about the direct military advantage from the strike. None of those things can be objectively evaluated or measured against a bright-line rule.

Take Israel’s recent strike on Hamas’s Jabaliya Battalion in the Jabaliya refugee camp. Here’s what we know about it: Airstrikes hit buildings in the refugee camp, and an underground tunnel complex collapsed. 50 people are reportedly dead. The dead include at least the commander of the Jabaliya Battalion, and also at least some civilians; images from the scene show injured children being carried away from the rubble. According to the IDF, the strike badly damaged Hamas’s command and control and ability to coordinate opposition to the Israeli ground invasion, and killed “numerous” Hamas combatants other than the Battalion commander. According to Palestinian sources, everyone killed other than the Battalion commander was a civilian. So – was that a proportionate strike?

The only available answer right now is we don’t know. Even if the Palestinian reports are correct – that the only military advantage from the strike was the death of a single combatant – proportionality is assessed based on what the commander launching the strike reasonably anticipated at the time of the attack. Did the IDF expect to kill many enemy combatants or just one? Did they expect to meaningfully degrade Hamas’s ability to oppose their ground operations? If so, the anticipated “direct military advantage” from the strike was significant and could support finding many civilian casualties proportionate – even if instead the strike had only killed a single combatant. And on the other side of the equation, how many civilian casualties had the IDF expected when it launched the strikes? According to the IDF, the strike caused tunnels used by Hamas to collapse and that in turn took down nearby buildings that the tunnels had been built under. Did the IDF anticipate that? If not – and if it was reasonable not to – then the deaths caused by those collapses don’t factor into the proportionality analysis at all, because they weren’t and shouldn’t have been considered by the commander deciding to give the go ahead for that strike.

Even if the IDF version is correct, does that necessarily mean the strike was proportionate? Also no. How many combatants is “numerous”? How degraded is Hamas’s ability to respond to ground operations? How many civilians were killed, or injured? And don’t forget necessity – could the same objectives have been achieved by a strike at a different time, or in a different manner, with less collateral damage? We don’t know the answers to any of those questions. And again, the expectations issue works both ways; if the IDF expected the strike to kill hundreds of civilians and only one combatant, but it got lucky and ended up with more combatant deaths than civilians harmed, that’s not a proportionate attack, it’s a war crime.

None of that is particularly satisfying. None of it should feel good. Innocents are dead, and the people left behind are no better or worse off depending on whether the strike that killed them was a war crime. They, in other words, don’t give a shit about any of this. So why should we? Why do I?

Because without it, many more innocents would die.

That, of course, is obvious if by “without it” we mean “without any guiding rules limiting how you can kill civilians.” Make it open season on civilians as a tactic of war, and combatants will kill more civilians. That’s not just a tautology, or a matter of logic – it’s empirically true, and not just of moral monsters like the Nazis. The Allied bombing of Dresden, which killed 25,000 civilians and targeted the city center rather than the suburban industrial areas that were manufacturing weapons for the Nazis, is one example. So are the bombings of Hiroshima and Nagasaki – cities that contained military targets but which were chosen specifically because of the broad damage that they would suffer beyond the specific military target hit. Without principles of distinction and proportionality, civilians become targets of war, because killing them is both easier and effective.

But what about more restrictive rules, rules that make killing any civilians a war crime? Wouldn’t that be more protective of innocents, not less? Why isn’t that a good idea?

Because in the long run (and here, the “long run” is not very long at all), that leads to the exact same place: no rules, and massive and deliberate civilian death. Where the rules of war say that a target is immune from being hit if there are any civilians around it at all, what will belligerents do? They’ll surround their military assets with civilians – place them in hospitals, and schools, and temples, bring human shields to the front lines. That will be a war crime, true – but who’s going to stop them when their army is literally invincible? Combatants willing to endanger their own civilians will win any and every war they wish to fight against any nation that abides by the laws of war – since under those conditions, only the state breaking the laws of war will be able to fire its weapons. And under those conditions, no nation will long hold to the laws of war; international law isn’t a suicide pact, and a state whose only options are annihilation and the massacre of its people or abandoning the laws of war will simply choose the latter.

Worse, even if they don’t – even if they opt for suicide – you would still be generating massive civilian death. Imagine, for a moment, if the countries opposing the Nazis had been strict Jains, unwilling to engage in violence even at the cost of their own deaths. The Nazis would have won the war, and many more civilians would have died. And the same would result if, rather than total pacifists, the Allies had refused to attack military targets if such attacks would be likely to cause any civilian death at all.

In other words, walking away from the current laws of war – in either direction, stricter just as much as looser – leads to a charnel house.

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And where that leaves us is, legitimately, horrifying. Israel is at war, with an enemy that murdered its civilians in the most barbaric ways imaginable, and has expressly announced its intent to continue to do so at every opportunity. To successfully prosecute that war, Israel has already killed and inevitably will continue to kill innocent Palestinians. It’s not reasonable to demand that Israel simply cease fire and live with the continued threat of further Hamas attacks for decades to come – its south emptied of people willing to live where they would be the next victims and its communities continually disrupted by rocket fire. And even if that was reasonable, it’s not wise to effectively announce that human shielding works after all, that proportionality be damned we’re simply going to adopt a stricter rule for combat – that, in other words, every terror group and rogue state in the world should embed its military targets in civilian areas and start us down the road to a world in which civilians are unprotected by any law at all.

All we can do is demand that Israel, like any other combatant, adhere scrupulously to the laws of war, including proportionality and necessity. That they value the lives of the innocent Palestinians they are harming, and that they not harm a single innocent if they can avoid it. But - most horrifying of all - we won’t be able to know whether they have until long after anything could be done about it if they aren’t. And I can’t think of any way to change that.