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Opinion: Still moral obligations for a wounded state

by
27 October 2023

The attack on 7 October was inhuman, but it does not absolve Israel from observing the law, argues Nicholas Reed Langen

SELF-DEFENCE is violent. It is an instinctive reaction against an aggressor, a desperate bid by a would-be victim to remain safe. The criminal law recognises this, absolving a victim who strikes out against their attacker, even if they inflict terrible, perhaps fatal, injuries. Legal absolution comes from recognising that they were reacting, not acting, to protect themselves.

The State of Israel is acting in self-defence. Hamas’s assault on the Jewish people on 7 October was a crime against humanity and against the Jewish state. No occupation, no matter how reprehensible, how prolonged, or how illegitimate justifies the massacre of men, women, children, and infants.

Anyone who tries to rationalise that night’s atrocity on the basis of Israel’s occupation of the West Bank is an apologist for a genocidal cult, a terrorist group that openly acknowledges a jihad against the Jewish race. Israel’s attempts to eliminate Hamas and the threat that it poses are legitimate.

 

BUT this does not mean that Israel’s response can be in kind. Hamas may have committed the greatest single atrocity against the Jews since the Holocaust, but Israel’s government is still bound by the law of war. Lord Pannick KC and Lord Macdonald KC ignore this in their letter defending Israel’s military conduct in The Times last week.

Rather than recognise that Israel’s soldiers are on the cusp of committing war crimes against the Palestinian people (if they have not already done so), Lord Pannick and Lord Macdonald argue that, when “a state faces a threat, it may lawfully take all reasonable steps to protect itself”, and that what is reasonable depends on “the severity of the threatened outcome”.

This letter first mistakes how self-defence operates in domestic law, before wrongly trying to equate self-defence in the domestic sphere with self-defence in the international sphere. In domestic law, if you discover that your neighbour is plotting an attempt on your life, you are not allowed to claim that the gunning down of your neighbour and his family was an act of self-defence.

Israel’s mobilisation of its army and its invasion of Gaza is not the instinctive act of someone in “unexpected anguish”, but a co-ordinated, premeditated operation. The soldiers ordered to descend on Gaza may be reacting with anguish. But, in return for its soldiers’ loyalty and obedience, the state needs to have regard for their moral welfare, too. Troops should not be forced to choose between their morality and their country.

 

EVEN if Israel had reacted instinctively, and President Netanyahu had hypothetically launched a missile strike on Gaza City the moment that he learnt of Hamas’s attack, it would still have violated international law; for Lord Pannick and Lord Macdonald are wrong to conclude that “what stands for people also stands for nations.” They ignore the rules and norms of international armed conflict which have existed for millennia, and the way in which they are distinct from laws governing individuals.

Writing in the fourth century, St Augustine set out how war could be fought in accordance with the will of God, a philosophy refined by St Thomas Aquinas 900 years later. For these founding fathers of just-war theory, a righteous war must be motivated by a righteous cause and fought as a last resort.

A just cause is not enough. Any war must also be conducted justly, according to principles of discrimination and proportionality, known formally in international law by the Latin phrase ius in bello. Only combatants can be targeted; civilians and innocent parties should be left untouched; military actions must be tempered by mercy, going no further than necessary to achieve their goals.

 

ISRAEL’s cause may be just, but its conduct teeters on the edge. The killing of some non-combatants is inevitable, given how Hamas is embedded in Palestinian society, hiding behind civilians and so daring the Israeli military to take innocent lives. Israel is conscious of this, ordering Palestinians to evacuate Gaza City before the military roll in.

But, if it is going to expect Palestinians to abandon their homes and their lives, it must give them safe routes and safe destinations. So far, it has failed to do so, instead putting Gaza under siege, denying its citizens energy, food, and water, while permitting few humanitarian actors — even the Red Cross — to enter safely. At the same time, it bombards the region from the sky.

Wars of religion track a bloody trail through history. But they have always been bound by the law of war, even when waged by absolute monarchs who believed that they ruled by divine will.

Israel’s government is not exempt from such fundamental norms, no matter how existential the threat that it faces. Aided by the world’s most advanced military, and supported by almost every Western government, it should do more to protect the lives and livelihoods of Palestinian civilians caught in the crossfire.

Hamas may revel in barbarity and brutality. But this does not justify Israel’s coming down to grapple in the filth with them, consequences and the law of war be damned.

 

Nicholas Reed Langen is a writer on legal and constitutional affairs, a former Re:Constitution Fellow (2021-22), and editor of the LSE Public Policy Review.

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