Just War Theory: Fighting with one hand bound, not both

Ever since Israel entered Gaza it has been lectured about the need to avoid civilian casualties against an enemy whose defensive strategy is hiding behind them

By: /
6 May, 2024
Israel Defense Forces personnel engage in urban warfare against Hamas terrorist cells following the October 7 Hamas attack on Israel.  Image: Wikimedia Commons IDF Spokesperson's Unit
Jack Cunningham
By: Jack Cunningham
Program Coordinator, Bill Graham Centre for Contemporary International History

On November 14 of last year, Prime Minister Justin Trudeau spoke about the conflict in Gaza, “Even wars have rules”, he noted, adding “all innocent life is equal in worth – Israeli and Palestinian.” He urged Israel to conduct the war with “maximum restraint” and remarked “the world is witnessing this killing of women, of children, of babies.”

Trudeau is not alone in pointing to what he sees as excessive civilian casualties. But too often that debate is conducted without sufficient clarity and precision. The reality is infinitely more complex than much public commentary, and probably far more private conversation, assumes.

Some concepts seem straightforward enough. Just War Theory has long incorporated the concepts of “proportionality” and “discrimination.” The first requires that the force employed be proportionate to the military objective sought, the second that legitimate and illegitimate targets be distinguished. As Michael Walzer has written, it follows that belligerent parties owe a “duty of care” towards innocent civilians at risk of injury or death in military operations.

Like much foundational thinking in the just war tradition, the concepts of proportionality and discrimination originated under conditions where war was conducted by armies readily separable from civilian populations, and rarely affected civilian lives. But their application in particular contemporary cases has to reflect the character of modern warfare.

It is a commonplace of military history that modern wars entail the mobilization of whole societies and economies. And militaries are profoundly dependent, for personnel, supplies, and more, on what Barry Buzan calls their “support networks.” These networks can extend very far, and in cases of failed states or intra-state wars, the distinction between combatant and civilian can become meaningless.

To apply just war principles to contemporary conflicts like the current situation in Gaza, it is less accurate to think of civilians and soldiers as two unmistakably distinct categories. Rather they should be viewed as points along a spectrum, running from actual fighters, to those who plan and abet their operations, those who willingly work in munitions factories, the political supporters of the hostile regime, those who reluctantly acquiesce in its rule, and, at the other end of the spectrum, those, like children and the mentally incompetent, who cannot be held accountable for what may be done in their name. 

Buzan seems to go so far as to accept the actual targeting of civilians as legitimate, on the grounds that “people get the government they deserve”, and that even refraining from active opposition to an odious regime entails some responsibility for its actions, including its crimes of aggression.

But a sufficiently nuanced analysis would accept degrees of deserves, of moral proximity to the actual combatant, and hence of immunity from attack. But if complete innocence is rare, so too is complete immunity.

In the case of Gaza, complete innocence would seem to be relatively uncommon. While Hamas seized military control of Gaza in 2007, the previous year the Islamist movement had prevailed in Palestinian Legislative elections against the more secular Fatah. And as historian Benny Morris has argued, not only were its more overt antisemitism and rejection of Israel’s existence tolerable to the Palestinian electorate, they were actual advantages.

Moreover, current polling data gathered after October 7 still indicates very high levels of Palestinian support for Hamas, putting the lie to the comforting illusion, cherished by Trudeau among others, that “Hamas does not represent the Palestinian people”. It clearly speaks for all too many of them, so they incur some accountability for its atrocities.

However, it would go too far to conclude that this justifies deliberate targeting of Palestinian civilians, or that everyone in Gaza is “fair game” for the Israeli Defence Forces (IDF). The central question then, is how far a combatant must be constrained in waging a just war? At least since the Battle of Stalingrad, it has been clear that combat in built-up urban areas generates high civilian casualties. 

In the 1999 Kosovo War, targets of military value were dropped from lists of approved targets because the anticipated harm to civilians was deemed too high. Still, President Bill Clinton acknowledged that there were civilian deaths, as there unavoidably are in war. Hamas cruelly exploits this fact by embedding its military assets in schools, hospitals, mosques, private residences, and alongside infrastructure like water mains and power plants, on which civilians depend.

The result is what Walzer calls an “asymmetry trap.” It becomes incredibly difficult for Israel to wage a just war and observe the dictates of proportionality and discrimination given the  conditions it faces on the ground. Moreover, military success is always offset to some degree by the costs in international opprobrium because of the civilian deaths Hamas exploits.

As Michael Ignatieff has written, an army engaged in a just war must “fight with one hand tied behind its back.” And a good case exists that the IDF has done so. As John Spencer, chair of urban warfare studies at West Point’s Modern War Institute has also noted, it sends emails, text messages, and voicemails warning of impending attacks, and drops maps indicating areas of danger and of safety as well as evacuation routes. In his view, “Israel has implemented more precautions to prevent civilian harm than any military in history – above and beyond what international law requires.” This inevitably forfeits the element of tactical surprise and impedes overall military effectiveness of course, so concern for civilians has its costs.

To be sure, there are failures. Occasionally, maps are inaccurate or incomplete and power outages obstruct the delivery of messages. In what Clausewitz called “the fog of war” most decisions are taken on the basis of imperfect information, and control of events is elusive. And it is arguable that the destructive potential of the cruder Israeli bombs has been too great, and clearly targets have been erroneously identified and attacked. People who should be alive have died. But Israel’s record, while inevitably imperfect, compares favourably to those of other militaries fighting under similar conditions involving urban warfare.

Even perhaps the most criticized aspect of the war effort, the delays in delivery of aid supplies to Gaza, has a valid rationale. It is a legitimate requirement of war that ingoing trucks be inspected to prevent the inflow of weapons. And here too, Hamas cynically exacerbates civilian misery by diverting food to its own supporters and using it as a recruiting tool, happy to leave others to starve.

It is arguable that the constraints accepted by Israel are in fact obligatory, though one should be cautious in making judgments. Walzer writes of the “supreme emergency”, a danger that is not only imminent, but exceeds miliary defeat in its consequences. In such cases, even the demands of proportionality and discrimination can be suspended. One can argue that all of Israel’s wars have been wars of survival, with even a single defeat threatening the nation’s existence.

Yet even if the current conflict is not a supreme emergency, hasty or intemperate judgments should still be resisted. A just war demands one fight with one hand bound, but not both. For that is to make wars of self-defence impossible, and to grant complete immunity to an adversary, in this case of Hamas, that is sufficiently skilled and unscrupulous enough to use civilians as human shields. To demand that solicitude for civilian casualties go so far as to preclude military operations altogether is to concede the right of self-defence in the abstract, but deny it in the particular.

In a just war, victory is not merely a right, it is an obligation, and even premature peace has its casualties. Were Israel to accept a ceasefire in Gaza where Hamas retained its military infrastructure, it would spare many civilian lives. But it would also ensure further Hamas atrocities, and for the lives lost in those it would be as culpable as for the unintended casualties had it fought on to victory.

It is an inescapable reality of even the most just of wars that no participant emerges with clean hands, and that one is always choosing among evils. Canadians used to understand this better than some of our current leaders. In the Second World War, we not only approved, but participated in, bombing raids over Germany in which many innocents perished. The debate over whether the military gain justified the loss of life continues.
Since then, the laws of war have evolved, and we now hold militaries to more stringent standards, though these, sadly, are not always met. But if the legal framework has evolved, the necessity of tragic choices remains. 

Decisions regarding Gaza are inevitably made with a calculus of daunting complexity, not a clear-cut formula, amidst conditions of chaos and stress, and not all will stand up with hindsight. In any war, there are instances where belligerents display indifference to the deaths of the innocent or even target them. Where that occurs, those responsible should meet with swift and sure punishment. But even the utmost fidelity to the laws of war will never prevent all loss of innocent life. So, we should judge with a certain humility and the understanding that, as Reinhold Niebuhr wrote to a friend in 1946, “how much evil we must do in order to do good.”

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