The Hamas-Israel war has entered its fifth week and deaths of innocent civilians remain the hub of its politico-strategic landscape. The cycle of violence initiated by Hamas on 7 October resulted in nearly 1,200 deaths and the kidnapping of over 200 hostages including children. This invited the Israeli invasion of northern Gaza, which continues to progressively enlarge the boundaries of humanitarian tragedy in Palestine.
This article aims to explore the action-reaction cycle in the framework of ‘just war’ tradition, which categorises the moral criteria guiding two types of judgements under the captions of jus ad bellum (right to war) and jus in bello (right in war). It also touches upon the relevance of the issue in the context of India’s approach to Pakistan’s use of terrorism as a foreign policy tool.
For jus ad bellum, the most widely accepted normative criteria in academia for adopting a warpath are: just cause, legitimate authority, proportionality and last resort. Jus in bello relates to whether the means used to apply violence are justified; it is the proportionality of means and discrimination.
Just war
The impact of judgements, even of the International Court of Justice regarding violations of the just war tradition, could be expected to ensnare only the losers and the weak.
Thucydides’ description of the anarchic inter-state system in the 3rd century BC still holds—“Right as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”
What is perhaps changing somewhat is that conflicting parties now have to perform simultaneously at many amphitheatres hosted on several media platforms. The means employed are being projected mostly in real-time, creating a parallel narrative battle aiming to influence the belief systems of the audience through an appeal to ethical considerations.
State and non-state actors are not moral persons. Ultimately, the practice of statecraft and strategy is not an exercise in applied morality. Of course, leaders acting on behalf of their polities project themselves as legitimate and just for domestic and foreign audiences. But the facade is often far too easily discernible and twisting the truth is par for the course.
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Jus ad bellum
In terms of the ‘just cause’ criterion, perhaps both Hamas and the Israeli government have a strong case. For Hamas, which sees itself as leading a resistance movement, the withering of the Arab support and the movement toward an Arab-Israel rapprochement were viewed as perpetual condemnation, imprisoning them in Gaza that has fitted the description of being an open-air prison for nearly two decades. For Israel, the 7 October Hamas assault on innocent civilians and kidnapping of hostages was intolerable. It has unleashed demons of hate and revenge that Prime Minister Benjamin Netanyahu and his supporters argue can only be assuaged by exterminating Hamas as an organisation.
In terms of legitimate authority, Hamas has ruled Gaza since 2007 as a de facto autocratic and one-party quasi-state. The internationally recognised Palestinian authority is the government located in the West Bank and headed by Mahmoud Abbas. Most Western blocs and its supporting states like the United States of America, the European Union, the United Kingdom, Israel, Japan, and Australia have designated Hamas as a terrorist entity. Hamas draws its main support from Iran and Hezbollah in Lebanon while Qatar provides financial support and also acts as a conduit for international assistance by the agencies of the United Nations. Israel, on the other hand, enjoys legitimate recognition in the international system.
The proportionality criterion declares that although a state may be endowed with a just cause, the war will not be just unless it is proportional to the wrong it seeks to remedy. Hamas, which has been subjected to Israel’s occupation without any relief in sight, has a strong case on this score, but so does Israel after Hamas’ 7 October attack.
Similarly, the ‘last resort’ criterion also makes a strong case for both sides. Hamas has been abandoned by the international community and thus it has no other option against Israeli occupation. Israel perceives that unless Hamas as an organisation is physically exterminated, the security of its people cannot be ensured. The ongoing invasion of Gaza is, therefore, its last option.
Jus in bello
When it comes to jus in bello, the focus is on two interconnected criteria—proportionality and discrimination—which cannot be analysed in isolation.
Understanding the principles of jus in bello is crucial for evaluating military actions and their implications on justice and law. This framework helps in assessing the ethical dimensions of warfare and the treatment of individuals involved.
According to the proportionality of means, one should employ only the required amount of force to achieve one’s strategic objectives. This criterion has two elements—using only necessary force and assessing whether the end is important enough to justify the level of force used. Moreover, the amount of force applied is integrally connected to the discrimination criteria that seek to differentiate between combatants and non-combatants.
The Geneva Conventions of 1949 and the Additional Protocols of 1977 and 2005, lay down the major humanitarian laws that have been adopted by all nations of the world. These conventions provide specific rules to safeguard combatants, or members of the armed forces, who are wounded, sick or shipwrecked, prisoners of war, and civilians, as well as medical personnel, military chaplains and civilian support workers of the military.
It is evident that Israel is in blatant violation of jus in bello and the Geneva Conventions due to the fact that it has not discriminated between combatants and non-combatants. The mounting toll of civilians, especially children, targeting of medical infrastructure and refugee camps and schools sheltering civilians, and denial of water, food and energy are sought to be justified by the logic that Hamas is using civilians as human shields to protect themselves. But the moot question is whether it gives Israel the right to ignore the impact of its actions on civilians. It has officially continued to warn the civilians to vacate northern Gaza and move to southern Gaza while continuing to destroy the infrastructure required for survival. Israel has also continued to block the movement of any meaningful quantum of medical aid, fuel, water and food into affected areas.
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Terrorism and political solution
Israel is able to carry out these violations mainly because of the support it enjoys from the US and most of its allies. The track record of the US on violations of the discrimination criteria—in most of its wars—is terrible. To expect the US to pressurise Israel to adhere to humanitarian law is an absolute charade. The civilians of Gaza are on their own and even the agencies of the UN have not only been rendered ineffective but also have had to put up with the deaths of many of its personnel, apart from suffering serious damage to their facilities.
It is obvious that Israel calculates proportionality while ignoring discrimination. Worse, most of the world is only able to pay lip service despite the grave violations of the just war principles and Geneva Conventions of which Israel is a signatory.
It is time that Israel and the US realise that terrorism cannot be wiped out only by the use of force alone. Terrorism is a means that the weak use to make up for their lack of military wherewithal. From the point of view of the weak, it cannot be tolerable to intentionally kill innocent civilians from a distance using missiles and bombs and justify it as collateral damage. Dealing with terrorism also requires resolving the political issues that provide a perceived just cause to use terror attacks as a shield for survival.
Even if Israel depopulates southern Gaza, it could at best buy some time for an uneasy peace. But in the mid and long term, Israel would become more insecure because it could not only face retaliation from whatever elements of Hamas survive but also put up with the condemnation and opposition of the larger Islamic world. Enough young minds all over the world have witnessed Israel perpetuating what they perceive as ethnic cleansing and genocide. Their targets would not only be in Israel but could endanger Jews all over the world and even encompass Christians.
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India and Pakistan
Those in power need to realise that the potential of terrorism making a global comeback will grow. When blended with the ongoing global geopolitical churn, the dangers are obvious.
Even India could get caught up in the surge as Pakistan’s economic weakness is coupled more deeply with global religious strife. If one could imagine an India steeped in Hindu majoritarianism and Pakistan caught in the vice of terrorist impulse, a situation could develop where an attack on a religious congregation by terrorists could inflame sentiments of revenge and leave the government to decide what reaction will be sufficient to assuage the popular demand. There can be no definite answer in the abstract, but lessons can be learned from the Hamas-Israel war, even though there are major differences in context and there is the nuclear weapons overhang.
It is now up to the US to rein in Israel’s rampage in Gaza. Recognising the growing calls for a ceasefire is the first imperative. The announcement by Arab and Muslim foreign ministers led by Saudi Arabia to – “formulate an international action to stop the war on Gaza….and their first stop will be China” is significant in terms of the negative impact on America’s image as the major keeper of stability in the world order.
It is also up to the Arab states such as Iran and Lebanon to rein in Hamas and get a ceasefire going. Post the ceasefire, humanitarian considerations must be paramount. The ball is now in the court of the US and the Arab States. They are not the only actors but their combined weight offers more than a glimmer of hope to stem the tide of human savagery. At least they must not lack in their efforts to restore peace in the highly sensitive region.
Lt Gen (Dr) Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution; former military adviser, National Security Council Secretariat. He tweets @prakashmenon51. Views are personal.
(Edited by Ratan Priya)