Since Hamas’ fighters entered Israeli territory less than a week ago at least 1,200 people in Israel and 1,100 in Gaza have been killed, more than 100 have been taken hostage, thousands have been wounded, more than 2 million are cut off from food, fuel and clean water, millions more have suffered trauma. Hamas has wiped out whole families. Israel’s armed forces are reacting by wiping out whole families. While some questions await answers, these facts are not contested. They have polarized a discourse that was always harsh. Beyond unqualified affirmations of Israel’s right to defend itself, some politicians, commentators, and scholars now endorse indiscriminate harming of Palestinians as a response to Hamas’ terrorism. Other politicians, civil society organizations, and scholars cast this terrorism as justified resistance to Israel’s occupation. The logic of collective punishment characterizes not only the actions of Hamas and the Israeli government, but also many statements justifying them. Anything goes when you defend yourself against terrorists? Anything goes when you resist occupiers?
Legal Answers
International law has a clear answer: the ends do not justify the means. Even assuming it had a legally sound cause to use violence against Israel, Hamas’ deliberate killing of civilians and hostage taking would remain war crimes, and possibly crimes against humanity. During previous military operations against Gaza, the IDF consistently claimed that, unlike Hamas, it did not intentionally or indiscriminately kill civilians. Official statements to this effect are hard to find now. It is courageous civil society actors who plead that “international law is not nonsense”. Prime Minister Netanyahu instead announced that “what we will do to our enemies in the coming days will reverberate with them for generations”, a statement notably lacking differentiation between Hamas and Palestinian civilians. Yoav Gallant, Israel’s Defense Minister, reportedly told troops that he had “released all restraints”. The destructiveness of attacks against residential structures in Gaza against the backdrop of these statements has raised concerns that they are harming civilians indiscriminately, an allegation also made by the Mission of MSF in Gaza, a team of special rapporteurs and independent UN experts, as well as CIVIC.
Does the siege of Gaza amount to “intentionally using starvation of civilians as a method of warfare”, which is prohibited and a war crime at least in international armed conflict (Article 8(2)(b) xxv ICC Statute)? Or does the Israeli government just callously disregard the basic needs of more than 2 million civilians? International law puts stock in the difference between deliberate and callous civilian harm and thereby incentivizes statements that carefully gerrymander the intended purpose of military operations. Yet, on this occasion, Israel’s Defense Minister bluntly announced a “complete siege on Gaza …no electricity, no food, no water, no gas”, referring to Palestinians as “beastly people”. Israel also reportedly warned Egypt not to allow supplies to cross the border. After Prime Minister Netanyahu told civilians in Gaza “to get out”, the IDF repeatedly bombed the Rafah crossing, the only possible way out. In the clearest admission yet of intent to starve the civilian population in order to compel Hamas, Israel’s Energy Minister, Israel Katz, wrote on social media that “no electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter” until the ‘abductees’” are released. As a leading expert on the legal prohibition of starvation puts it: the objective of fighting Hamas is “being pursued through an operation that purposively denies sustenance to the civilian population [emphasis added].”
Hostage taking, deliberate and indiscriminate attacks against civilians, and starvation as a method of warfare do not become legal just because “the other side did it first” or engages in even worse barbarism. Reprisals against the civilian population are prohibited, a rule now widely accepted as customary law (also Article 51(6)). Hamas has threatened to kill Israeli hostages in response to attacks against civilians in Gaza. Asked whether they would warn civilians before attacking densely populated areas in accordance with the customary obligation to take precautions in attack (also Article 57(2)c), the IDF spokesperson said “when they came in and threw grenades at our ambulances they did not knock on the roof. This is war.” Yet, nowhere does international law suggest that, in war, its demands depend on reciprocity. Quite the contrary, the Protocol cautions that violations of the law “shall not release the Parties to the conflict from their legal obligations with respect to the civilian population …, including the obligation to take … precautionary measures” (Article 51(8)). In short, international law prohibits and even criminalizes many Hamas and IDF actions over the last days. Neither their supposed goals nor the conduct of the other side changes that.
Moral Answers
Is law the right framework through which to view this conflict? Should we not take a moral stance? The historically evolved laws of war prohibit some actions that are morally justified and certainly fail to prohibit many that are not. From a moral point of view, whether the use of force has a just cause, such as self-defense or resistance to foreign occupation, matters for the permissibility of violence. Unless it advances a just cause, arguably all violence in war is morally wrong. But that does not mean that all violence committed in furtherance of a just cause is permissible. Some acts are morally prohibited regardless of the ends they supposedly serve because they are in a category of acts that are intrinsically wrong—they cannot be redeemed by good consequences. Deliberately killing or starving innocent bystanders, for example, is categorically wrong. It remains prohibited even if it were somehow necessary for achieving a just cause. When talking about this conflict in moral terms, a common refrain is “what are they supposed to do to defend themselves against terrorism/occupation?” The answer is “not this.”
Not everyone accepts categorical prohibitions. But even if we take a consequentialist approach and judge acts of violence purely by whether they have moral benefits (chiefly the contribution to a just cause) that exceed their moral costs (such as harm to innocent bystanders), we find that Hamas and the Israeli government are acting unjustifiably. Deliberate and indiscriminate attacks against civilians are associated with political failure in the context of many different types of conflict. One reason is that this kind of violence hardens attitudes. Whether it is civilians harmed by aerial bombardment or by terror attacks or by retaliation to terror attacks, whether they witness house-demolitions or experience rocket fire, civilians become less willing to compromise, more radical and more willing to assume the costs of resistance. We have little reason to believe that harming thousands of innocent bystanders actually advances the frequently stated goals of ending either the occupation of Palestine or the terror attacks against Israel.
Helpful Questions
Political commentary that ends with “both sides” is often seen as unhelpful. But just because major media outlets have one too many times equated balanced inquiry with the amplification of arguments that are outside the bounds of logic, we should not hesitate to point out when a conflict is in fact characterized by massive moral wrongdoing “on both sides”. But is there really nothing more nuanced to say? Yes, murdering a child at close range is even worse than flattening an apartment block in the knowledge that there is one inside. My point is not to argue the exact moral equivalence of actions on both sides in recent days. But once the question “who is worse?” also requires comparing violations of categorical moral principles, like intentionally killing or starving the innocent, when it requires comparing war crimes, what do we do with the answer? Meanwhile the question “who started it” very likely entrenches our disagreement about the conflict as the answer chiefly depends on when you think “it” started. The further back in time we go, the less meaningful the answer becomes as we should no more punish civilian populations for the crimes of their ancestors than we should punish them for those of their governments.
One conclusion to draw from the unhelpfulness of many moral and legal comparisons would be to say nothing at all. When wondering what to say about a conflict like this one, I tend to imagine the archetypal innocent bystander who suffers unjustified harms from the conflict and ask what type of question would actually be helpful, and ideally not offensive, to them. I imagine an Israeli friend who has, for decades, often at personal cost, fought for Palestinian human rights and who has been hiding in a safe room, getting notice of friends’ deaths, wondering how to shield his children if he had to. And I imagine a Palestinian mother, whose every right has been restricted by the occupation, but who educated her children not to hate, children she now does not know how to keep safe from the bombs. I would not want to face either of them and tell them: “after a detailed moral and legal comparison, I have determined your side is somewhat worse/started it”.
From the perspective of the Israeli human rights campaigner and the Palestinian parent, the crucial moral question is neither “who is worse?” nor “who started it?”, but “who has the power to stop it?”. Of course, both sides have the power to stop killing civilians, stop abducting, starving, and terrorizing innocent bystanders. Both sides can do this today, right now. But more nuanced answers than “both sides” emerge if we ask more concrete questions. Who has the power to free the hostages? Hamas and any ally with leverage over it. Who has the power to allow humanitarian access to Gaza? Israel and any government with leverage over it, and yes, also Egypt. Who has the political power to change the situation more fundamentally? Political power can be defined in many different ways, but almost regardless which way we chose, Israel has more of it: more military and economic capacity, more friends, a seat at the table at various institutions, and more territory. Of course, the Israeli human rights campaigner has no power right now. So, while I ask the question for Israeli civilians as much as Palestinians, it is not to them that I would direct the answer.
To everyone else – politicians, civil society organizations, media commentators, and scholars –particularly those tempted to justify terrorism as resistance to occupation or occupation as defense against terrorism: not calling for freeing the hostages and providing humanitarian access to Gaza because we are too distracted by “who is worse” or “who started it” is a moral failure. How can we stop the mutual collective punishment now and how can we change the situation that has given rise to it? Finding answers to these questions is where we should channel our shared horror.
Janina Dill is the Dame Louise Richardson Chair in Global Security at the Blavatnik School of Government at the University of Oxford, a Fellow of Trinity College Oxford, and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC).