Current international law on war is largely derived from the fallout of WWII. It’s seen a little bit of trimming around the edges, but for the most part it is the child of WWII. That it has lasted over 70 years with only minimal change is in some respects creditable. Israel’s actions in Gaza should result in massive changes to it.
Let me explain. Gaza presents unique challenges to the conduct of war. We have a region that is half the size of a major North American city - Calgary, AB - with a population that is at least double that of Calgary. To say it is densely built is an understatement. That necessarily means that just about any major action in Gaza is going to result in massive civilian casualties and damage to civilian infrastructure.
Where this represents a serious challenge for current laws is that current international law doesn’t really deal with the kind of messy, asymmetric situation we have in Gaza, where the belligerents in Gaza are embedded deeply with the civilian population, and actual military assets are commingled with civilian infrastructure.
This necessarily means that heavy-handed strategies like “carpet bombing” are simply invalid - the odds of massive damage that unreasonably harms civilians is far too high. To this point, Israel has simply bombed the hell out of locations and then turned around and claimed “but Hamas was there”. That seems to be something of a truism - in the 15 years since Hamas took control of the Gaza, they no doubt have built an enormous infrastructure for their military ambitions and have embedded it in the densely built up urban areas for both military and political reasons.
Here is where Israel’s ‘right to defend itself’ runs up against the rights of the civilian population of Gaza. Israel cannot justifiably claim “Hamas” and exempt itself from the impact on Gaza’s civilians. Regardless of where the conflict is taking place, we have to recognize that the belligerents are fundamental military and governmental constructs, not civilian. Recognizing the nature of political and governmental power, we cannot claim that the civilians are directly responsible for the actions of their governments.
This raises the first point of rights in tension - in asymmetric warfare like we see in Gaza, where do the rights of the civilian population take precedence? Intuitively, it seems a little too simplistic to have one side simply claim “bad guys here”, and bomb it into oblivion from the air. Yet, at the same time, we also know that “street by street” fighting is just as messy and even more brutal.
Is Israel’s “evacuate this region” approach adequate? Or is it simply another military tactic that puts a veneer of respectability on an otherwise heavy-handed approach to the conflict? Demanding people evacuate makes the assumption that people are in fact able to do so. Factors ranging from poverty to illness, age, and disability can make such orders utterly impractical for some.
Allegedly, Hamas has built a huge network of tunnels underneath Gaza. I don’t doubt that is the case, in fact the attacks on October 7 made it quite clear that is the case. Does that give Israel the blanket right to start dropping “bunker buster” bombs on Gaza? Or would the level of destruction that would wreak on densely populated regions render that unacceptable? Israel’s argument is that Hamas is using the civilian population of Gaza as “human shields”. I’m not sure that the complication that presents for military action erases the rights of those civilians.
WWII era doctrines tend to focus on destroying an enemy’s ability to arm, supply, and defend itself. For the most part industrial and military infrastructure was separate from civilian. In Gaza, all three are commingled, and that changes the dynamics of warfare. My personal feeling is that if Israel wants to destroy all of the underground infrastructure, they need to resurrect the pre-aerial era roles of sappers who specialize in underground warfare. Hamas has a tunnel network that needs to be rendered unusable? Cool - get in there and do that. You can make tunnel systems unusable with minimal damage to civilian infrastructure - but if you think street by street combat is ugly business, a network of tunnels is going to make that look like a walk in the park for the troops.
Lastly, when we examine the actions of the belligerents, we cannot simply examine a singular event. There are often years, if not decades, of grievances on both sides. Proponents of Israel’s approach in this conflict point to decades of actions on the part of Hamas - and Hamas has a very ugly history that it is very valid to criticize. One can also understand that the Palestinian governments are also operating in an environment that has to respond to the pressures that Israeli policy creates.
Unfortunately, Israel’s history here is arguably no better. Increasingly heavy-handed approaches to events have effectively walled Gaza off, and severely limited the ability of Gaza to develop itself economically. Other aspects of Israeli policy have isolated Palestinian peoples from each other, as well as promoted division. It’s no secret that Netanyahu has been quite happy to “feed Hamas” because it keeps the Palestinian peoples divided, and enables him to argue that there is nobody to “talk peace” with.
This is not a simple conflict, but in its wake, the assessment of the actions of the belligerents needs to be assessed through a new lens, one that sees the right to self defence not merely as a “right in the moment”, but as a right that exists in tension with other rights, and exists in the full context of events leading up to open conflict. We cannot simply look at October 7 and make a declaration, we must examine the full picture.
Unfortunately, such an examination will invalidate a lot of people’s presuppositions about the actions taken, regardless of their sympathies.
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