By Noah Feldman
Wednesday, November 15, 2023
The present Gaza war, initiated by Hamas’s October 7
attack on Israel, poses important questions about both the morality and laws of
war and the language of conflict. People everywhere are having heated
conversations involving concepts such as targeting civilians, terrorism, proportionality,
and genocide. They deploy these concepts when arguing about broad questions,
like whether Hamas’s attacks on civilians are justified resistance, and about
narrower ones, like whether a specific Israeli bombing of a refugee camp is
justified to kill Hamas leaders and destroy underground tunnels.
To a trained international lawyer, these terms have
concrete definitions. At the same time, the terms are also moral concepts, and
most people who aren’t trained lawyers use them colloquially rather than
legally. The trouble is that the general rhetorical meanings of many of the
words don’t match the legal meaning. That leads to the confusion of people
talking (or yelling) past one another. It also obscures the primary moral
message that underlies the law of armed conflict.
The whole point of international humanitarian law is to
establish a minimal morality that can apply even during the terrible and bloody
business of war. The rules of conflict in war do not address the underlying
question of which side is right. Instead they bracket that question, on the
understanding that, in wartime, neither side is going to concede that the
other’s cause is worthy. The terms, in other words, are designed to adjudicate
what may and may not be done while fighting a war, not whether the war is just.
The reason to do this is to protect human life and dignity under conditions of
the deepest human disagreement. Using these terms in ways that either differ
from or actually contradict their legal meaning erodes the power of
international humanitarian law.
When used correctly, the terms of international
humanitarian law thus apply universally, to all people fighting all wars,
whether just or unjust. Their core value is to insist that some actions are so
morally wrong that they should never be tolerated, even if the side that
perpetrates them is morally right in a given conflict. Put another way, under
international humanitarian law, the ends do not justify the means. You can
fight for liberation and self-determination, and to protect hearth and home.
But there are rules. Violating them means you have violated universal
principles of humanity.
***
Let’s begin with the prohibition on targeting civilian
noncombatants. This is Rule
1 in the pantheon of international humanitarian law as captured by the
International Committee of the Red Cross. (The ICRC, created by treaty, has the
job under the Geneva Conventions “to work for the faithful application of
international humanitarian law applicable in armed conflicts.”) Sometimes
called “the principle of distinction,” the prohibition in Rule 1 says that the
participants in a conflict “must at all times distinguish between civilians and
combatants.” Attacks on combatants and military targets are lawful. Attacks on
civilians or civilian targets are not.
The power of the ban on targeting civilians, people who
aren’t armed participants in a conflict, can hardly be overstated. It flatly
rules out the notion that a weaker party or one that has justice on its side or
that is engaged in a struggle for anti-colonial liberation can ever be
justified in targeting people who aren’t fighting. That includes babies and old
people, but not just them. It includes anyone who isn’t fighting, regardless of
gender or age.
One of the most noteworthy features of some rhetoric
validating Hamas’s October 7 attacks is its apparent rejection of this core
principle. Hamas did attack military targets and kill some Israeli soldiers.
Had it limited its attack to such objectives, it would not have violated Rule
1. Justifying the attacks as a whole means endorsing a basic and obvious
violation of international humanitarian law.
The argument that liberation movements should be able to
target civilians isn’t new. (Consider Jean-Paul Sartre’s provocation, “Killing
a European is killing two birds with one stone,” in his introduction to Frantz
Fanon’s anti-colonial classic, the 1961 Wretched of the Earth.) But it
has been consistently rejected by international law, and for good reason: It
undermines the very idea that some moral principles are universal. To repudiate
the distinction between combatants and civilians is to make the rules of war
(in lawyers’ Latin, jus in bello) into a subset of the rules of whether
a given war is just in the first place (jus ad bellum). International
humanitarian law understands and accepts that people fighting wars ordinarily
think their side is morally justified and the other is not. If you make the
legality—or morality, for that matter—of whom you can target depend on whether
you are right, that will be the end of humanitarian law: Everyone will say they
are in the right and can kill whomever they choose.
The principle of distinction also applies to Israel’s
actions in Gaza. Israel may not target civilians, and if it did so, that would
violate the law exactly as Hamas’s actions did. Collateral damage is a
different matter. The principle of distinction bars attacks directed at
civilians, not attacks directed at military targets that incidentally kill
noncombatants. Such attacks are, however, governed by the law of
proportionality, which I will discuss below.
One famous example of an attack that arguably violated
the principle of distinction is the nuclear strike on Hiroshima. President
Harry Truman claimed that the Hiroshima attack was aimed at a military base
there. But observers continue to question that account, arguing that the intent
was to kill as many civilians as possible to pressure Japan to surrender. If
the United States intended to target civilians, then its actions violated
international humanitarian law as it is understood today. It’s still common for
states to defend the deaths of civilians by saying they weren’t targeted. The
test, ultimately, is the truth of the assertion, measured by relevant evidence
that can be mustered by reasonable observers.
***
Terrorism is also outlawed by international humanitarian
law. The ICRC definition
describes terrorism as violence or threats of violence with “the primary
purpose” of spreading “terror among the civilian population.” The
humanitarian-law definition applies equally to state and terrorist groups. No
side can set out to terrify civilians by using violence, whether it’s Israel or
Hamas.
Although individual instances of terrorism can certainly
fall under the prohibition on directly targeting civilians, the terrorism ban
has a specific goal, namely protecting vulnerable civilians from actions that
may not kill them but nonetheless terrorize them. Indiscriminately bombing or
shooting civilians can qualify. The International Criminal Tribunal for the
Former Yugoslavia brought war-crimes charges for violating this principle,
focusing on these sorts of attacks against civilian populations.
In this context, it’s worth noting that the category of
“terrorist” doesn’t have a specific meaning under international humanitarian
law. It doesn’t narrowly refer to nonstate actors who target civilians for
ideological reasons. The crime of terror describes certain actions based on the
nature of those actions themselves, regardless of who perpetrated them.
This, too, is a feature of humanitarian law, not a bug.
The law seeks to universalize obligations and protections. And it is focused on
protecting the vulnerable by restricting actions directly aimed at them, not on
differentiating different types of war-fighters. Just as the law rejects the
idea that freedom fighters are justified in targeting civilians, it denies that
states would be any more justified than nonstate actors in terrorizing a
civilian population. Once again, the whole point is to designate a basic moral
minimum framework for situations where both sides are prepared to fight and
die, and both sides believe they are in the right.
***
This brings us to proportionality,
one of the most confusing and complicated principles of international
humanitarian law. The principle applies to attacks that target a military
objective and that are otherwise lawful, but for their “disproportionality.” (A
military “objective” in this sense is an actual object that contributes to
military action and whose removal would give the attacker a military
advantage.) But what constitutes disproportionality?
The crucial thing to understand is that
disproportionality is not an absolute measure of destruction, with certain
levels of destruction off-limits, but a relative one: Under international
humanitarian law, an attack is disproportionate if the side launching it knows
or expects that the incidental damage to civilians and civilian objects will be
“excessive” or “disproportionate” relative to the “concrete and direct military
advantage” that is sought. The incidental collateral damage to civilians must
be proportionate—not excessive—relative to the military advantage that
the attacker is pursuing in that specific military act. For example, if the
goal is to destroy a military base, and it is possible to target that base
alone, destroying the entire surrounding neighborhood would be excessive or
disproportionate. As one U.S.-military manual cited by the ICRC puts it, “In
attacking a military target, the amount of suffering or destruction must be
held to the minimum necessary to accomplish the mission.”
The idea is not that one side must only inflict damage
proportional to the damage inflicted by the other side. That would be a recipe
for keeping wars going forever by prohibiting any side from taking the kind of
decisive action that can end a war. The laws of war accept that different
actors have different capacities to inflict damage. Under these rules, the
number of people killed by one side need not be proportional to the number
killed by the other. Nor is the idea that the attacker may weigh collateral
damage in relation to its overall goal of winning the war. The military
advantage or objective is described as “concrete” and “direct” in order to
focus the proportionality analysis on the gains from destroying a specific
military target, not the gain from defeating the enemy and creating peace.
Importantly, this is different from the use of the term proportionality
in another area of international law, the right of every state to defend itself
against external attack. In that context, the principle of proportionality
belongs to the topic of jus ad bellum, the justness of entering the war
in the first place. There it does indeed say that the state acting in
self-defense must use force proportional to repelling and defeating the
attacker. Jus ad bellum analysis focuses on who may lawfully and justly
go to war in the first place, and so deploys proportionality with respect to
the damage inflicted by the entire military engagement in relation to its
legitimate war aims.
But the question of proportionality in jus ad bellum,
itself relevant to the legality of Israel’s overall war aims in Gaza in
reaction to Hamas’s attacks, is legally and morally distinct from the question
asked by international humanitarian law, which is how much collateral damage is
permissible. International humanitarian law assumes that the two sides are
already at war and imposes legal and moral limits on what they can do. That is
why its consideration of proportionality relates to the damage and war
objectives of each separate engagement in relation to the overall campaign.
Once you have clarity on which proportionality principle
is relevant, the question of proportionality in war is nevertheless
challenging. To say what is or is not “excessive” or “disproportionate”
requires a judgment call based on a cost-benefit analysis. But how can anyone
weigh the costs and benefits of incommensurable goods like lives and military
advantage? In practice, militaries like those of the U.S. and Israel follow
procedures that are supposed to anticipate damage in advance and try to keep it
within reason. This effort captures Michael Walzer’s observation that it is not
enough to not intend to target civilians; one must also intend not to target
them—by making efforts to avoid their death.
What’s more, even when weighing lives against lives,
there is no clear answer to the question of what calculus should be used. How
many lives of an enemy’s civilians may be lost to save one civilian life of
one’s own side? Is the right ratio 1:1? Is it 10:1? Higher?
Reasonable people could differ in almost any case about
whether it is disproportionate or excessive to launch an action that everyone
anticipates will have the effect of killing some approximate number of
civilians. And under war conditions, hardly anyone can be reliably reasonable.
Given this challenging aspect of the proportionality
principle, why does international humanitarian law rely on it at all? The
answer, surely, is that proportionality, notwithstanding its ambiguity,
provides a degree of guidance that covers extreme cases. We can say, or should
be able to say, that killing hundreds of civilians to destroy a small military
base—one that does not itself have the capacity to cause great harm—would be
excessive and disproportionate. We can say with a high degree of confidence that
it would be unlawful to carpet bomb a residential area to kill a few soldiers
or achieve a tactical advantage. The law recognizes that proportionality is
imprecise but relies on it so that we can avoid the most extreme deviations
from its core principle.
***
Genocide is prohibited by a specific treaty: the
Convention on the Prevention and Punishment of the Crime of Genocide of
December 9, 1948. The treaty’s definition of genocide, famously proposed by the
Jewish international lawyer Raphael Lemkin, includes “acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or
religious group.” (The broadly accepted norm against genocide extends to
political groups as well, such as those killed by the Pol Pot regime in
Cambodia.) Those acts in turn are exemplified by killing or otherwise harming
members of the group, inflicting conditions calculated to bring about its
physical destruction, imposing measures intended to prevent births within the
group, and forcibly transferring children of the group to another group.
Determining whether a given act of violence constitutes
genocide therefore turns on the intent of the actor: Was it meant to destroy a
group, in whole or in part? When prosecutors have charged and convicted
defendants for the crime of genocide, as they did in the International Criminal
Tribunal for Rwanda and the International Criminal Tribunal for the former
Yugoslavia, they have proved this intent in two different ways. Direct evidence
of a genocidal intent can be drawn from public and private statements declaring,
for example, the perpetrators’ aims of eliminating Tutsis or Bosnian Muslims.
Circumstantial evidence, such as the scale of the atrocities and a pattern of
targeting members of some groups but not others for killing, can also be used
to prove intent.
In ordinary speech, the term genocide is often
used expansively, to include ethnic cleansing, the practice of using force and
fear to remove a group of people from some territory. Ethnic cleansing would
probably implicate war
crimes under international humanitarian law, like extermination, or
deportation as part of widespread attacks against civilians. It could also
involve acts of genocide, which would themselves be crimes. But ethnic
cleansing on its own is not the same as genocide. And international law has not
recognized ethnic cleansing as an independent crime of its own.
In the context of the Israel-Hamas war, accusations
of genocide are being levied against both sides. Sometimes the charges take the
form
of legal analysis. Addressing those in detail would require much more space. My
view, however, is that as things stand, it would be difficult to prove charges
of genocide as a matter of law against either party, especially if the standard
of proof were comparable to that used by the international tribunals for Rwanda
and Yugoslavia.
Israel has declared the war objective of eliminating
Hamas, which is a military-political organization, not a whole people.
Statements by Israeli officials that describe Hamas terrorists as “human
animals” could be proffered to suggest that Israel is dehumanizing Palestinians
with the intent to destroy the Palestinian people. But the repugnant expression
has, at least in statements of government officials, been directed at Hamas,
rather than all Palestinians—a distinction that would make a great difference as
a matter of law. Israel’s conduct toward the Palestinian population in Gaza and
elsewhere does not, in my view, manifest an intent to destroy the Palestinian
people, in whole or in part. Those Israelis who openly seek to “transfer”—that
is, expel—Palestinians by force from Israel or the West Bank or Gaza are
advocating a morally reprehensible policy that would violate international law,
which prohibits such forced deportations. They are not necessarily advocating
genocide as defined legally.
As for Hamas, its 1988 charter called for the liberation
of Palestine and for Muslim sovereignty over the entire land. (As revised in
2017, the charter allows for a return to pre-1967 borders as a “national
consensus” fallback option.) The fact that Hamas lacks the capacity to destroy
the Israeli or Jewish people would not preclude a genocide charge for acts that
killed only some. So it could be argued that Hamas’s actions on October 7 were
crimes of genocide. The revised charter specifically disclaims a religious
conflict with Jews, as opposed to Zionists and Zionism, and does not expressly
specify the destruction of Israelis in whole or in part.
The upshot is that charges of genocide, made in either
direction, likely do not satisfy the legal definition of genocide, certainly
not as it would be adjudged by any international tribunal today.
***
Legal language has no claim to be the only or even the
best way to talk about war. But international humanitarian law does strive to
create a framework for a minimal morality that everyone can agree to accept. It
makes a claim to universality. Rejecting it outright marks a kind of refusal to
belong to the community of nations and people who believe that some things are
always wrong, no matter how right they believe their side to be. The language
of conflict can be a source of conflict. Used carefully, however, it can also
be a guide to engagement in the process of trying to value every human life
equally. That aspiration may not succeed. But its existence has value
nevertheless.
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