During previous military operations in Gaza, Israel’s leadership sustained a remarkably disciplined message about Israel’s commitment to international law, often claiming that its military operations not only met legal demands, but exceeded them. Israel nonetheless faced allegations of non-compliance with the laws of war, for instance, the criticism from scholars and civil society organizations that the Israel Defense Forces (IDF) caused disproportionate collateral damage in Gaza in 2009 and 2014. Such criticism was met with official rebuttals, vociferous denials by Israeli commentators and scholarly articles defending Israel – alongside then-Defense Minister Avigdor Lieberman claiming it is the “most moral army in the world” — with another commentator saying, “Israel’s track record of preserving human rights under the difficult conditions of urban conflict is commendable.”*
All seems different now. While some legal experts still express “faith in the Israeli military, lawyers and their system,” the message this system is broadcasting to the world features significantly fewer mentions of international law than in the past. When Israel’s political and military leadership have acknowledged the laws of war, allies have been reluctant to publicly press for details on how operations in Gaza meet legal requirements. Meanwhile, statements by Israel’s senior political and military leadership routinely fail to differentiate between Hamas and Palestinian civilians, admit to the use of the civilian population as a means to compel Hamas, cast doubt over whether Palestinians deserve protection from attack, and legitimize their collective punishment for the horrific terror attacks of Oct. 7. This change in discourse, and the change in conduct that it hints at, are a grave error with devastating legal, strategic, and moral implications.
Statements by the senior military and political leadership have evidentiary value in a legal evaluation of Israel’s current operations. Some violations of international law’s rules for the conduct of hostilities are not visible in military operations alone, but depend on their purpose. To identify indiscriminate attacks, the use of starvation as a method of war, or forced displacement, more is required than an attack that kills, starves, or displaces civilians. However, when Israel’s Defense and Energy Ministers both express the intent to compel Hamas by depriving the Gaza strip of fuel, food, and water, initiating a siege with devastating humanitarian consequences, there is a plausible legal case to be made concerning the criminal use of starvation as a method of war. When viewed against the backdrop of Israeli President Isaac Herzog’s statement that “an entire nation” of Palestinian civilians is responsible for supporting Hamas, Israel’s bombing of densely populated neighborhoods in Gaza starts to look like recklessly caused civilian harm. An evacuation order may become a violation of the prohibition on forced displacement if it is necessary primarily because the IDF is destroying residential buildings in an unlawful manner.
Crucially, Hamas’ acts of terrorism on Oct. 7 do not raise the question of evidence for intent or questions about purpose in the same way. The murder, abduction, and sexual assault of civilians, including children and the elderly, in their homes and at a music festival, are acts easily classed not only as violations of international humanitarian law (IHL), but also as war crimes. These heinous acts are unambiguous in their intent: harm and terrorize Israel’s civilian population. The additional evidentiary value of statements expressing such intent is therefore lower. For Israel, by contrast, the discursive abandonment of international law and expressions that betray the intent to harm Palestinians have legal implications. More evidence would, of course, be required in a criminal trial of individuals involved in these acts, for instance before the International Criminal Court, which has jurisdiction. But the argument that all IDF operations are compatible with IHL is decreasingly plausible. This, meanwhile, has strategic implications.
Legality affects public support for the use of force in countries such as the United States and the United Kingdom. Studies have shown that the claim that a policy violates international law decreases public support for drone strikes, aerial bombing, torture, military intervention, domestic human rights violations, or the poor treatment of refugees. Notably, the effect of framing these policies as illegal is relatively modest. Support for bombing civilians decreases by 9% and for drone strikes by 6%, for example, when these policies are framed as violating international law.
Yet, the question is not only whether the public responds to claims about the legality of military operations, but also whether it prefers operations that comply with the laws of war, in the first place. For instance, does public support for military operations depend on whether and how they cause civilian casualties? One study of American respondents indeed shows that air strikes that conform to international law meet with more support than those that do not, even when international law is not mentioned. Americans prefer air strikes against combatants to those against civilians and air strikes against military objectives to air strikes against civilian objects, even when the operations’ contributions to victory is the same. Significantly, Americans do not seem to care whether civilians contribute to the war — they simply prefer strikes that minimize harm to individuals designated as civilians.
In short, a body of scholarly work suggests that legality, both claims of compliance with international law and actually choosing targets that conform to international law, bolsters public support for military operations specifically in the United States. But when we bring these studies in conversation with Israel’s current operations in Gaza two significant caveats emerge. First, the concern that many ordinary people display for civilian casualties is fragile. Studies suggest that people are ready to sacrifice many foreign civilians if this is necessary for military victory or for keeping their own troops out of harm’s way. Second, Western publics, specifically the British and American publics who have been shown to care about international law, fight wars of choice far away from their own territory. Should we expect Israelis, who live with the threat of rocket fire and terrorist attacks to have the same views about international law and the importance of protecting non-compatriot civilians?
Indeed, Israel is one of a handful of countries in which researchers have found backlash effects against international law. That means a (very!) modest increase in support for a policy that is framed as violating international law. Moreover, two studies that directly compare respondents from different countries have shown that Israelis are more hawkish than people in the United States, France, and the United Kingdom and that they are willing to risk even larger numbers of foreign civilians in order to keep their own soldiers safe than American or British respondents. One determinant of individual respondents’ approach to trading off risk to their own soldiers for risk to foreign civilians is whether they perceive their soldiers as freely consenting to risk taking. This belief is naturally more widespread in countries with professional armed forces than in Israel, which relies on conscription and views its soldiers as, in the words of Aser Kasher and Amos Yadlin, “citizen[s] in military uniform.”
At the individual level, retributiveness – often measured as support for capital punishment or agreement with statements such as “those who hurt others deserve to be hurt in return” – is a strong predictor for whether a person supports the use of force and how easily they tolerate foreign civilian casualties. Israelis have reason to feel retributive after the national trauma of Hamas’ recent terror attacks. Israel is also a society with significant inter-generational trauma. As Daphna Canetti and colleagues have argued “for Israeli Jews, the Holocaust constitutes a collective national trauma that plays a key role in shaping identity, politics and culture.” Moreover, Israel has experienced a continuous threat to its existence and exposure to this threat has been linked to confrontational attitudes toward outgroups. Given this domestic audience, Israeli leaders may not feel the need to give law a prominent place in messaging surrounding the current conflict.
Yet, if Israel abandons international law or if it is seen to have skirted it through implausible interpretations, that is strategically disastrous for Israel. To understand why, we must take other crucial audiences into account. The staunchest allies of Israel are Western democracies whose governments cannot, in the long run, support Israel militarily if their publics turn against it. It therefore matters that claims about compliance with international law and actual conformity with international law sustain public support for military operations in the United Kingdom and the United States. That pictures of mass deaths in Gaza further inflame publics already predisposed to enmity toward Israel should be self-evident. While we lack studies about how the perceived legality of a conflict impacts popular support for it in the Middle East, it is obvious that regional populations care about the protection of Palestinian civilians. A regional escalation of the conflict, meanwhile would be devastating for Israel’s security.
And then there are the Palestinians themselves. As Stathis Kalyvas first showed, most forms of indiscriminate violence against civilians are “at best ineffective and at worst counterproductive.” Studies that have investigated civilians’ attitudes show that aerial bombings of civilians, mass killings, terrorism, and attacks based on group membership are all associated with poor strategic outcomes. Populations affected by inter-state wars over territory, in particular, become “intransigent” and withdraw support from negotiations the more affected they themselves are by violence. Harms perceived as intentional or unnecessary – those that are most likely to violate the legal rules of distinction and precaution – are associated with particularly strong rejection of the attacking party.
Tragically, the very same determinants that likely account for why, in comparative studies, Israel’s population looks more hawkish than the British and U.S. publics – exposure to threat and violence – predict that further indiscriminate harming of the Palestinian population will only harden attitudes and block routes to peace both now and in the future. Indeed, in both Israel and Palestine, civilians more directly exposed to retaliation to terror attacks, as well as those that witness house-demolitions or experience rocket fire, have been shown to be less supportive of peace negotiations and more ”radical” in their voting choices. Put differently, everything we know about conflict-affected populations, including Israelis and Palestinians, suggests that harming them deliberately or indiscriminately makes them more willing to assume the costs of resistance. Empirical studies of conflict give us little reason to believe that harming thousands of civilians makes either side any safer.
It may seem odd to make strategic arguments for compliance with international law. Should not a moral argument suffice to motivate restraint and the protection of civilians? It should, but it is crucial to recognize just how traumatic Hamas’ attacks of Oct. 7 were. Some Israeli voices known to be committed to international law have recently suggested that Israel is now facing an existential struggle for survival, which changes the role it can afford international law. Indeed, there is a long tradition in legal theory for the argument that law should not govern an emergency. In the famous words of Alexander Hamilton, when the life of a nation is threatened, “no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” But where does a rejection of international law leave us in this conflict?
In the absence of law, morality might fill the void. What are Israelis and Palestinians morally permitted to do to defend themselves? From a moral perspective, the permissibility of resorting to violence chiefly depends on whether it serves a just aim (though even a war fought for a just cause may be unjustified if, for example, it fails to be proportional). In a conflict in which one side justifies collective punishment as resistance to terrorism and the other side justifies collective punishment as resistance to occupation, such a moral analysis is unlikely to lead either side to restraint.
Depressingly, moral arguments are unlikely to reduce moral wrongdoing.
International law, meanwhile, imposes the same obligations on all parties to an armed conflict regardless of their causes or ends. It upholds these obligations even when one side violates them. Who started it, who behaved worse, whose aims are more important — all questions that govern our moral intuitions about the permissibility of violence — are questions that the laws of war bracket. While this makes international law appear morally defective, it is law’s greatest moral asset in a conflict in which both sides have legitimate grievances, and where no neutral party exists to arbitrate between them. When even neutral observers intensely disagree on who has a just cause, international law remains a ground for normative claims that remain intelligible across the divide. Israel’s interlocutor may not be Hamas, but other Palestinian and regional actors. If both parties did what they thought morality licensed them to do, things would hardly get better. If both parties – or even if just one party as my optimism is not so boundless as to consider Hamas amenable to this plea – only did what international law licensed them to do, moral wrongdoing would be significantly reduced, much suffering would be avoided.
To be sure, legal arguments ring hollow to those reeling from the loss of loved ones. But their leaders should know better. Precisely when two peoples threaten each other’s survival, legality is not a luxury they can no longer afford. Rather it becomes their last barrier against a moral race to the bottom, a normative minimum standard that third parties standing with either side need to insist on. International law is critical to survival in Israel and Palestine.
* Editor’s note: A line referring to Israel being the “most moral army in the world” has been changed to explicitly attribute this statement of then-Defense Minister Avigdor Lieberman.