Does Israeli action in Gaza comply with Just War Theory or International Humanitarian Law?

                                                                  Destruction in Gaza

This is a difficult and emotional topic and I hope you follow this small essay to its end before forming any judgments.  The main question I am attempting to answer:  Is Israel following Just War Theory?  What does this previous question mean?  What I am attempting to determine is whether or not Israel's behavior against Gaza is actually permissible and in agreement with Just War Theory and international law.  Let me see if I can formulate a moderately clear answer to this question.

There are several philosophies addressing what makes a war just and defensible dating back to Ancient Egypt. I will focus on the one with which I am familiar--Just War Theory within a Christian ethical context.  St. Augustine established principles for waging Just War around the year 400.  This philosophy would be expanded by Thomas Aquinas seven centuries later.  

For purposes of this discussion, I will focus on the second part of the Just War Theory which governs behavior of combatants once a war has been started, also known as Jus in Bello.  The two major principles of Jus in Bello are discrimination and proportionality. For the past 16 centuries Christianity has referenced these principles, although they've been barely acknowledged or utilized during our lifetimes.

If a nation or group's behavior in conducting a war is to be considered just and acceptable it must discriminate.  This means that the combatant force must discriminate between military and civilian targets, as much as humanly possible. Everything must be done to avoid any harm to innocents, whether accidentally or purposefully.  Failure to take sufficient means to avoid harm to innocents is inexcusable and a violation of Just War Theory. When one witnesses the extraordinarily indiscriminate destruction of Gaza resulting in the harm of thousands of innocents, one can easily conclude that Israel's actions are unjust and in violation of Just War Theory.  

Some might argue that Israel's behavior is justified because Hamas was also indiscriminate in its attack against Israel.  I would agree that Hamas also conducted an unjust and indiscriminate attack.  However, according to Christian Just War Theory, and almost every other manifestation of this philosophy, that fact is irrelevant to Israel's unjust behavior.  Nations do not receive an exception to complying with Just War Theory because their opponent has engaged in indiscriminate behavior. Every nation, including Israel, must take special care to discriminate between civilian and military targets regardless of the behavior of its opponents.  Germany often violated the principles of Just War Theory in World War II, but that did not justify equally repugnant behavior by the Allies, who were also required to follow the principles of discrimination regardless of German behavior and, indeed, the Allies sometimes failed miserably (For example, Americans dropping atomic bombs on Nagasaki and Hiroshima violated any conceivable notion of discrimination and was, therefore, in violation of established Christian Just War ethics.).  

Additionally, for a war to be just it must also be proportional.  This means that the good achieved in any act of war must outweigh the harm done.  In other words, the actions taken by a warring party must also be in proportion to any damages they have incurred.  Again, when viewing Israeli actions in Gaza, it has been documented that the damage inflicted upon the residents in Gaza definitely outweighs any good that is achieved by these acts of war. Yesterday, the Israeli government demanded that the one million residents who live in Northern Gaza must move out of their houses, so that they can launch military action that will probably annihilate the entire region.  Where are these million displaced people supposed to go?  Added to the destruction and death already suffered, one cannot conceive of any possible good that outweighs this destruction, carnage, and unfathomable displacement of people that will soon follow. Therefore we may easily conclude that Israel has violated the Just War principle of proportionality by quite a large margin.

In another variant of the principle of proportionality, one only needs to compare the level of destruction inflicted in Gaza versus that in Israel to determine that the overall destruction created by Israeli military action is in no way proportional to the destruction that their nation has suffered, especially when one calculates the additional perpetual harm that has been inflicted by the Israeli military in Gaza over the decades.  Israel has inflicted a disproportionate level of harm to Gaza over the years and it is extremely difficult to argue that the acts of oppression and harm against the residents of Gaza over time have been outweighed by the good accomplished.  In fact, one could easily argue that it is almost impossible to identify ANY good that has been achieved for anyone on either side of the conflict through the use of this disproportionate Israeli military force.

Again, one might suggest that Hamas's behavior was indefensible and justifies a disproportionate attack. Just as the case with discrimination, the behavior of one's opponent does not allow a group or nation to violate principles of proportionality.  And remember that once a nation abandons strict adherence to principles of proportionality, then it becomes impossible to delineate when an attack becomes excessive.  Because Israel does not comply with any concept of proportionality, they then resort to completely unacceptable behavior such as demanding that a million people leave their homes so that an entire portion of Gaza can be completely destroyed. No nation, including Israel, can claim to follow notions of discrimination or proportionality by demanding residents leave their homes in combat zones to avoid being slaughtered.  It is neither just nor acceptable, and is a result of believing that one is excused from following principles of just war because you demonize your enemy. Because Israel does not adhere to principles of proportionality it creates the horrific ethical environment that results in the atrocities and the incalculable bloodshed of innocents we are witnessing now.

You might also argue that you don't follow Christian authority and that your side possesses no reason to follow the principles of ancient philosophers. Fine. Please be aware, however, that Just War Theory is embedded in the United Nations Charter and the 1949 Geneva Conventions which codify the conduct of war. Jus in Bello, the concept which defines acceptable conduct during armed conflicts, is also defined in these two secular documents. Proportionality and discrimination are ideas that are central to these legal instruments as well. So, not only is Israel violating ancient religious codes defining acceptable behavior in conducting warfare, one could assert that it is also violating International Humanitarian Law.  And as is the case with Just War Theory, the behavior of one's opponent does not excuse violation of international law as Israel has done, not just during this current conflict, but for the past few decades of its relations with the residents of Gaza, which have been littered with International Humanitarian Law violations that have never been prosecuted or pursued. One might contend that the failure of the international community to hold Israel accountable for these violations has been a contributing factor to the terrible situation that exists today.

One final note about the Christian version of Just War Theory.  There are communities of Christians such as Quakers and Mennonites that follow a more radical version of this concept.  They believe that Christ taught an ethos of total non-violence, therefore war is never acceptable or just.  This pacifist philosophy has not been accepted by the majority of Christians nor by most societies on the planet.  I would argue that wars and violence have continued unabated through human history because pacifist theories are disregarded as unrealistic and are therefore ignored.  However, the history of a lenient Just War Theory that excuses some instances of warfare, and its subsequent failure to have had a meaningful impact on the level of warfare, violence, and atrocity through world history is proof that this theory can easily be ignored and twisted to justify one's own warring acts regardless of how vicious they might be. If they were followed rigorously, Just War Theory and International Humanitarian Law could be a useful tool for moderating the barbaric nature of war.  Unfortunately, the evidence history provides us is almost unanimous: theories of just war have not been followed and have not had a moderating impact on how military campaigns are conducted, though in the case of Israel they can provide us with a tool of analysis that can lend us the moral clarity needed to conclude that Israeli actions in Gaza are unjust and inexcusable if we follow these longstanding moral frameworks, irrespective of anything Hamas has done.