Israeli army main battle tanks and other military vehicles are positioned in southern Israel near the border with the Gaza Strip on May 9, 2024, amid the ongoing conflict in the Palestinian territory. The crimes of October 7 do not provide Israel with blanket justification for its use of any and every means at its disposal even as a response to what it may interpret as an existential threat. – Picture: Ahmad Gharabli / AFP

By Camillo ‘Mac’ Bica

However valid the claims of oppression, apartheid, etc., against the Palestinian people may be, Hamas’ October 7 attack, in which 1,163 Israeli civilians were killed and 252 taken hostage, some of whom, it is alleged, may have been sexually assaulted, does constitute a war crime. As such, the Jus Ad Bellum criteria — international and moral laws governing when states may resort to armed conflict in national defence — have been satisfied. That being said, the crimes of October 7 do not provide Israel with blanket justification for its use of any and every means at its disposal even as a response to what it may interpret as an existential threat. There is a profound moral and legal distinction between national defence and national preservation.

Nor do International Humanitarian Law (IHL), Laws of Armed Conflict, and the International Law of Human Rights (ILHR) sanction acts of revenge or reprisals against civilians and civilian objects. These include “medical or religious personnel, units, transports, or material; prisoners of war; civilian persons or civilian objects; cultural property or places of worship; objects indispensable to the survival of the civilian population”.

International and Moral Law

It is important to note that the statutes and principles of international and moral law are not transactional, that is, they apply universally and remain applicable to all parties to the conflict, irrespective of:

The reasons for fighting;
Who may be considered entitled to use force; and
The lawfulness or unlawfulness of their previous actions under Jus Ad Bellum.

Consequently, despite its warrant to resort to armed conflict in national defence, Israel’s response is not without legal and moral limits. That is, its conduct of the war must satisfy IHL’s Jus In Bello criteria (international and moral law governing a belligerent’s behaviour IN armed conflict).

These two sets of criteria for determining the legality and morality of war, Jus Ad Bellum and Jus in Bello, are conjunctive (“and”) rather than disjunctive (“or”). Consequently, BOTH sets of criteria must be satisfied for a nation’s use of armed conflict to be justified under international and moral law. As noted above, while Israel’s involvement in the conflict in Gaza may be justified in terms of Jus Ad Bellum, there is adequate evidence to raise serious doubts regarding its justness in terms of Jus In Bello — how Israel is prosecuting the war — a scenario Michael Walzer terms “fighting a just war unjustly”.

The Jus In Bello Criteria

While the Jus In Bello criteria of noncombatant immunity and the principle of proportionality, diminished somewhat by the Doctrine of Double Effect, does not provide noncombatants with total protection from harm, it does prohibit deliberate — intentional — harming or killing of civilians. Further, it requires that belligerents ensure that any harm done to the civilian population during a military attack must be incidental and involuntary. Further, its purpose must be militarily necessary, unachievable by alternative less or nonlethal means, and proportionate, that is the number of civilian injuries and deaths are not excessive in relation to the direct military advantage gained.

Israel’s War in Gaza

As of this writing, according to local health authorities, more than 35,000 Palestinian civilians have been killed and 79,366 injured, at least 12,300 of them children, as the Israeli military expands its war into Gaza’s southern city of Rafah, the last refuge of some 2 million Palestinian civilians. “Using publicly available data, Oxfam calculated that the average number of Palestinian deaths (250 per day) in Gaza is higher than any recent major armed conflict including Syria (96.5 deaths per day), Sudan (51.6), Iraq (50.8), Ukraine (43.9), Afghanistan (23.8), and Yemen (15.8).” Additionally, 150 United Nations Relief and Works Agency (UNRWA) distribution centres and 165 relief facilities including food distribution centres, schools, and hospitals have been attacked and team members killed including seven World Central Kitchen workers.

In response, Israeli apologists have argued that “war is hell”, mistakes do happen, and, despite the best of intentions, civilian casualties are inevitable, especially in densely populated cities. Further, when Hamas fighters use civilians as human shields, responsibility for the civilian deaths must be borne not by the attackers but by those being attacked. Such was the case, it is argued, when an Israeli airstrike killed an alleged Hamas commander who had taken refuge (or perhaps was visiting family members) in a densely populated refugee camp in the Gaza Strip. Other casualties in the attack included 50 Palestinian civilians killed and 150 injured.

Under international and moral law, the fact that Hamas may use civilians as shields and that the Israelis may claim that Palestinian casualties were unintended — collateral damage — does not diminish the weight of civilian dead and injured in the proportionality calculus to determine whether the attack was a war crime. Nor does it relieve the Israelis of their obligation and hence, culpability, under Jus In Bello to discriminate and afford immunity to civilians.

What Graham and others fail to understand or choose to ignore is that there is no obligation to unquestioningly support nations or subnational groups, allies or not, that commit war crimes.

Also of legal and moral concern is Israel’s forced displacement of over 1 million Palestinian civilians — 450,000 refugees are again on the move fleeing Rafah after Israel’s latest evacuation warning. According to Cindy McCain, the American Director of the UN World Food Programme, due to the war and Israeli siege tactics — its restrictions on food, water, fuel, and electricity — northern Gaza is experiencing “full-blown” famine.

According to Ilze Brands Kehris, the UN assistant secretary-general for human rights, more than 90 percent of the civilian population of Gaza is suffering from food insecurity as a consequence of what can only be described as Israel’s employment of starvation as a method of war.

Together with the dramatic increase of violence against Palestinians by Israeli settlers and security personnel in the West Bank and East Jerusalem; the indiscriminate attacks that fail to distinguish between civilian and military objectives; the unacceptably high civilian casualty rate; the nearly complete destruction of essential civilian infrastructure; and the forced displacement of most of the population of Gaza provide conclusive evidence not of isolated incidents or mistakes but of a pattern of behaviour that disregards the dictates of morality and International law.

Yet, war hawks like Senator Lindsey Graham, a Republican from South Carolina, continue to argue that “Israel should do whatever they want to Palestinians like when the US nuked Japan” and that the United States must fulfil its “obligation” to unquestioningly provide military support to Israel in its war against Gaza.

According to a New York Times investigation, American-made one-ton bombs were responsible for among the most devastating attacks on Palestinian civilians since the beginning of the war.

America’s Response

Tragically, to date, the response by the United States to this humanitarian crisis in Gaza has been limited only to shallow threats “to review some near-term security assistance ... while remaining absolutely committed to continuing to support Israel in its right to defend itself”.

By failing to hold Israel accountable in any real and meaningful way for its violations of international law, and by continuing to provide money and weapons to support its criminal behaviour — something for which we are quick to condemn Iran regarding the Houthis, Hezbollah, and other criminal organisations — the United States violates domestic and international law and risks becoming complicit in Israel’s war crimes against the Palestinian people.

What Graham and others fail to understand or choose to ignore is that there is no obligation to unquestioningly support nations or subnational groups, allies or not, that commit war crimes.

US President Joe Biden in his Memorandum on United States Conventional Arms Transfer Policy, dated February 23, 2023, reaffirmed that his administration will comply with the Department of Defence Leahy Law that prohibits the US government from “using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights”.

Yet, despite his rhetoric, Biden has advanced a $1.2 billion transfer of ground-based weapons to Israel, mainly tank ammunition and tactical vehicles, in anticipation of its incursion into Rafah.

Conclusion

To affect an end to the war in Gaza, the US and other high contracting parties to the Geneva Conventions must:

Pressure Israel and Hamas into agreeing to an immediate and permanent ceasefire and the unconditional release of all hostages;
Support the International Criminal Court’s provisional measures to protect Palestinian rights, especially that they be protected from acts of genocide;
Abide by an embargo against supplying Israel and Hamas with arms and military materiel given the numerous credible accusations of serious violations of international law by both parties;
Pressure Israel into ending its longstanding blockade, which has cut Gazans off from food, water, electricity, and fuel that amounts to the collective punishment of its civilian population and is a key component of Israel’s system of apartheid;
Urgently allow humanitarian aid into Gaza;
Support, not threaten retaliation against, the Office of the Prosecutor of the International Criminal Court in fulfilling its mandate to conduct investigations into evidence of war crimes and other crimes under international law; and
Ensure that all guilty parties are held accountable under the law.

Finally, an enduring long-term peace in the region will be possible only when and if:

It is acknowledged that the current violence that is occurring in Gaza has its roots in decades of human rights violations;
These underlying causes of the conflict are identified and addressed;
Those responsible for the violations of international and moral law committed before, on, and since October 7 are held accountable for their crimes; and
Justice and the rights of all peoples — both Palestinians and Israelis — are acknowledged and respected.

It is the justifiable moral outrage against Israel’s wanton disregard for international and moral law and for the lives of Palestinian civilians and not antisemitism or support for Hamas, as misreported by Joe Scarborough and others in the mainstream media, that has motivated a resurgence of activism on college campuses all over this nation and the world.

Power to the people!

Camillo ‘Mac’ Bica, PhD, is an author, activist, and Professor of Philosophy at the School of Visual Arts in New York City. His focus is in Social and Political Philosophy and Ethics particularly as it applies to war.

This article was published at Common Dreams

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