The reports on the number of civilian deaths, including many children, resulting from Israel’s bombing in Gaza that took place during the round of hostilities from May 10-21, have generated a legal debate that seems to focus mainly on Israel’s actions. This is perhaps unsurprising given that Hamas’s firing of rockets into Israel indiscriminately, which also caused civilian casualties (albeit in far smaller numbers than those inflicted on the Palestinian side), is considered ipso facto a violation of International Humanitarian Law (IHL). This intense focus on such legal issues has a recent echo. Similar incidents from the previous major Israel-Gaza round of hostilities, in 2014, form part of the ongoing investigation by the International Criminal Court’s (ICC) office of the prosecutor which previously found that there is a reasonable basis to believe that members of the Israel Defense Forces committed war crimes including intentionally launching disproportionate attacks, and that Hamas and Palestinian armed groups committed war crimes including that of intentionally directing attacks against civilian and civilian objects. In regard to both parties the Prosecutor found a reasonable basis to believe that the crime of willful killing was committed. Earlier this month the Prosecutor said that she was noting the escalation of violence with great concern, including the possible commission of crimes under the Rome Statute. These developments at the ICC suggest then that Hamas’s and Israel’s actions are likely to remain on the international legal agenda for the foreseeable future.
A central question is where these legal debates ultimately lead and if the IHL discourse frames the issue in a restricted way and diverts consideration away from greater issues raised by these armed hostilities.
In the most recent round of fighting, the legal debate has focused mostly on the question of whether Israel’s attacks on buildings which it argues are rendered legitimate military targets either because of their use by Hamas or by the presence of Hamas officials, violate the principle of proportionality under IHL. According to this principle, an attack is illegal if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Additional Protocol 1 to the Geneva Conventions, (AP1), Article 51(5)(b) and 57(2)(a)).
Before examining proportionality, however, we must consider the principle of distinction. Was the target (for example, the al-Jalaa tower hosting Associated Press and Al-Jazeera targeted by Israel on the grounds that it was also used by Hamas’s military intelligence) indeed a legitimate military objective? This is a question that fuses facts and law. Having investigated Israel’s justifications for targeting civilian structures and killing of civilians in the 2014 hostilities, Human Rights Watch concluded that in regards to the four strikes it examined, Israel presented no evidence to show it was attacking lawful military objectives or that it acted to minimize civilian casualties. The latter point highlights another relevant legal obligation, which is to take all feasible precautionary measures to avoid or minimize the death or injury to civilians and the damage to civilian objects (Article 57 of AP1 ).
The IHL debate about the principles of distinction, precautionary measures and proportionality, and especially the latter, has left many scholars frustrated.
A few authors have recently pointed to the limit of using this framework to analyze the legality of specific attacks undertaken by Israel in Gaza and have raised the unease the current debate causes. Daniel Mahanty argued on Twitter that “luring people down a rabbit hole on the finer points on what ‘proportionality’ means in IHL is precisely the point,” and warned us not to be “distracted.” Following this, Alonso Gurmendi suggested in a recent blog post that “instead of helping address the inevitable humanitarian crisis, international humanitarian law seems to take us out of it,” focusing on what he calls a “sterilized, vague and cold-blooded discussion about the ‘inevitable’ horrors of war.” Gurmendi offers instead a modern rereading of IHL that focuses on the unapologetic protection of civilians. Accordingly, if there are readings of IHL that do not reflect, for example, that destroying an entire building without having to produce any evidence only because one apartment was used by an armed group, is unlawful — they should in Gurmendi’s argument be called out as deficient.
Unease was also expressed by Aurel Sari who in a blog post wondered whether engaging in legal disputations about issues such as the legality of Israel’s bombing of high-rise buildings in Gaza is not morbid and perverse, given that it treats the fate of other human beings as an invitation to split hairs. But Sari chooses nonetheless to undertake this analysis admitting that the law of armed conflict is blind to the virtue of the causes espoused by belligerents and that it does not provide a moral compass. We should allow the law to do its job, and politics and ethics to do theirs. It is, Sari argues, our professional duty to “split legal hairs” during ongoing hostilities: we should get the law “right” as a precondition for demanding that the parties comply with their legal obligations and for holding them to account should they fail to do so. With this in mind, Sari forcefully points to the fact that a belligerent cannot simply accept incidental losses below the prohibited threshold but has to take all feasible steps to avoid or minimize these – under the obligation to take precautionary measures.
In another blog post, Eliav Lieblich, takes the discussion a step further, suggesting that the situation of civilians who are at risk, arguably because of Hamas’s conducting military operations near civilians, is similar to that of hostages. For Lieblich, this is the relevant moral framework. The lives of civilians must remain a paramount concern for the attacking forces (in this case Israel) regardless of the immediate responsibility of the other side (in this case, Hamas). While his is a powerful plea Lieblich admits that IHL tolerates the incidental harm to civilians providing it is not excessive in relation to “the direct and concrete military advantage” expected from the attack. In my reading, Lieblich’s plea may thus be translated legally into a heightened interpretation of the duty to take precautionary measures.
So where does all of this leave us if we share the anxiety on the limits of the prevailing IHL analysis in the Israel-Gaza war? Naz Modirzadeh – who is cited explicitly only by Sari but whose words echo through all three posts – has recently described current legal analysis of war as distanced, abstract and lacking in passion. For me, the current incarnation of the debate about the legality of specific attacks conducted by Israel often illustrates these shortcomings, and requires us to face up to the limits of IHL. We can, like Gurmendi argue for a modern rereading of IHL which affords better protection to the lives of civilians. While his proposed interpretation is commendable and one I would happily adopt, it arguably remains the lege feranda of IHL and not its lege lata, or at the least a disputed interpretation. We can like Sari, and like Adil Haque, closely assess whether Israel’s actions, in fact, violate its IHL obligations – in relation to the principle of distinction, precautionary measures, and proportionality. This route will often be convincing, as given the extensive destruction of property and lives, it seems that many of the strikes conducted by Israel can indeed serve as examples of violations of one or more of these obligations. And we can, borrowing from Lieblich’s line of analysis, demand a higher level of care for the lives of innocent civilians on the other side much more than is accounted in much of the IHL discussion, and translate this demand into a heightened precautionary duty.
All of these writers thus admirably attempt to bring passion back into IHL. Gurmendi seeks to avoid the “hairsplitting” analysis for much stronger protection of civilians. Lieblich suggests inserting a requirement for parties to address the citizens of the other party with the same precaution they would treat their own.
However, IHL cannot avoid engaging in the “hairsplitting” legal analysis of specific strikes. And it is my concern, that once we participate in the legal analysis of the specific strikes, we cannot avoid going down Mahanty’s rabbit hole. This is because this form of analysis asks us to put aside much more than the “moral compass” Sari mentions. It also requires us to put aside questions of injustice and of power relations. The examination of individual attacks through the IHL prism requires us to isolate specific incidents, and argue (splitting hairs) about whether the duties of distinction, precautionary measures, and proportionally were or were not maintained in this or that attack; or whether an attack that killed two rather than, say, fifteen children does or does not violate the proportionality principle. And while I think that those who oppose many of Israel’s attacks have the law on their side, going down these particular rabbit holes is likely to end up as a losing strategy.
Consider Haque’s argument about the illegality of Israel’s attack on the al-Jalaa tower, which counters the Israeli legal narrative. While I personally find Haque’s argument convincing and powerful, the debate it generated (see the responses to it by Brian Cox and Aurel Sari) illustrates the rabbit hole of hairsplitting over details at the price of seeing the context and the big picture.
In short, to conduct the discussion on IHL terms already abstracts too much from context. To have the argument about the illegality of this or that act runs the danger of perversely legitimizing the calculus of death inflicted by a powerful military power upon the people it occupies and dispossesses. This is where David Kennedy’s warning about IHL as sharing the language of proportionality with the military in a way that participates in the war machine resonates. IHL’s bracketing of questions of substantive justice, power relations, occupation, domination, and dispossession, and its demand that we look at the warring parties on the basis of symmetry – all of these facilitate the situation that where one side uses mighty force against the other the ensuing legal discussion is unable to acknowledge the gap in power, but rather examines individual cases through a restricted prism.
As a consequence, an attack on a building which, according to Israel is used by Hamas for military purposes, will end up being analyzed from the hairsplitting legal perspectives of IHL in a way that obscures that even if Israel sees it as an act advancing its security, in fact this is yet another exercise of power by Israel against the Palestinians and part of their ongoing oppression and of Israel leaving behind widespread destruction of life and property in Gaza. The IHL analysis focusing on such individual attacks cannot contain the bigger picture of widespread destruction, and suffers from the three-fold malaise that Modirzadeh diagnoses of being technical, acontextual, and ahistorical. To this we should add IHL’s inability to contain the horror of the destruction of human life by war, and the reductionist nature of the discussion and of the questions IHL requires us to bracket. Arguably jus ad bellum’s broader necessity and proportionality perspectives may open the door to address the bigger picture rather than the legality of specific attacks on which jus in bello focuses, but the question of the application of the rules of self-defense to this situation bring up its own set of complicated legal questions which are beyond the scope of this essay.
Of course, this understanding does not undermine the importance of work by scholars who point to the recurring violations of IHL by Israel in its often deadly and disproportionate strikes on Gaza. This admirable work is all the more crucial given the pending ICC investigation. There are also important reasons why IHL is based on symmetry between belligerents. The power asymmetries described here should never be used to justify illegal attacks upon civilians of the sort carried out by Hamas. But I also passionately feel that as long as IHL is unable to acknowledge the structural injustice of the situation — the asymmetry, the horror — discussions of these cases in the technical language of IHL remains a double edged sword – which is quite scary to hold close to the chest going down a rabbit hole.
(The author is grateful to Catriona Drew, Ryan Goodman, and Eliav Lieblich for their helpful suggestions.)