Many years ago, international law professor Kenneth Anderson wrote on what he called “functional pacifism” – the formal support for the right of states to defend themselves and strike its enemies, while interpreting international legal rules and protections for civilians so broadly and expansively so as to make this impossible. This is especially true when states must defend themselves against “criminal combatants” like Hamas, ISIS, or other terrorist groups who have no problem mixing with the civilian population or using them as shields.
Today, it would seem the entire west, including many friends of Israel, is functionally pacifist. Why?
The idea of doing whatever reasonably possible to avoid harming innocent civilians in war is a laudable goal, a necessary civilizing effort after the horrors of human warfare that spared no-one and protected no-one. When human collective violence is unleashed, even for the most righteous cause in the world, taking care to make sure that this violence does not spill over unrestrained against innocent people – something which happened during many a “just war” – is entirely understandable, and it is why international law exists in the first place.
At least in its original form, however, international war law recognized that while armies should avoid harming civilians, sometimes it is unavoidable or at least not entirely preventable. Whole debates and discussions are held on moral concepts like the “double effect” of hurting civilians while aiming for combatants and enemies, or whether a hospital used as a military base is a legitimate target, debates which continue today. Israel would be foolish not to take these debates seriously, even when making its own decisions as to what counts as a legitimate target or how to decide what mix of combatants and civilians justifies a bomb or an artillery shell.
Not “International Law” but “International Gut Feeling”
But that is not what most critics and even critical friends mean when they say Israel should heed “international law.” What they mean is not the legal definition or this or that action or how much care the IDF takes to avoid collateral victims. They mean the only thing that matters is results, not intentions, and any result that kills more than zero civilians is wrong and unacceptable. Even worse, as far as they are concerned, is the simple and banal fact that because the IDF has many more and more powerful weapons, the number of those killed on the other side will always be greater, sometimes much more so.
Such an attitude ignores the simple realities of war and its purpose. The aim of war is to force the enemy to agree to terms decided by the belligerent – a truce, a peace, surrender, disarmament, or territorial concessions. The means of fighting war include the use of lethal force, sometimes on a massive scale, by both sides when possible.
War is not a police action by definition; the tens of thousands of Hamas members still in Gaza, firing rockets and planning more massacres are not criminals but “criminal combatants” who are legitimately targeted for death until they surrender. In war, those combatants are considered a clear and present danger to be neutralized or killed, and that requires the use of lots of weapons and strikes against them. Unavoidably, that means lots of civilians unintentionally killed, despite all efforts to the contrary.
You cannot have it both ways – the “right to defend” oneself includes the right to do everything possible to kill the enemy until surrender or terms. Demanding that only strikes which guarantee zero civilian deaths are allowed is to mean no strikes at all or so few that they do not meaningfully harm the enemy, who is still a threat and still plans our deaths. It’s a guarantee for more and bigger massacres and more death, not less. It’s a package deal.
Israelis are often deaf to entreaties to demands to heed “international law” because it is almost always cover for a demand for the “international gut feeling” of people who do not like the realities of war and wish they weren’t realities.
No More Victimhood
A large part of this international “gut feeling” comes from the idea that we should decide who is morally right based on who is the bigger victim or who is the weaker side. This is how all the fighting in Gaza since the Hamas coup in 2007 has gone. First, Israel is seen as the victim because of the Hamas attacks, then Gazans are seen as the victim because Israel strikes back. It’s a simplistic understanding for all the reasons I noted above, and it badly distorts understanding of the conflict and indeed conflict in general.
Furthermore, it is also deeply insulting for Jews. The State of Israel was established because Jews were sick and tired of playing the victim and reject the idea that only victims and martyrs can be morally in the right. The world’s response to the Holocaust was to decide that a people’s moral righteousness rises and falls on how much a people acts like a collective Christ – suffering and not striking back, becoming martyred rather than engage in the morally messy business of survival and strength, always showing how oppressed and beaten down you are rather than becoming stronger.
Zionism said: to hell with that. We are uninterested in being the Christ of nations. Yes, we show how barbaric and dangerous our enemies are, because they often are, but we did not build up a world-class army just to never use it effectively to defend ourselves, so people with no understanding of war, who have never heard a shot fired in anger, can give us more likes in the reality TV show that is media (especially social media) driven international relations.
Many of you claim to be friends of Israel worried about adherence to international law. Before criticizing us, ask yourself honestly: is it law that worries you, or war itself? If it’s the former, we might listen. If it’s the latter, don’t bother. We’re still too busy burying our dead.