Perils and Pitfalls of Israel´s New ´War on Terror´

Over the last weeks, we were forced to realize that the way our – i.e. German – public opinion (and politicians) react to the ruthless assault of Hamas on 7 October differs markedly from the intuitions of the broad public in the Islamic world (and large parts of the ´Global South´ in general). Whereas our media (and speeches of politicians) are full of references to Israel´s right to self-defence, the sentiments voiced on the streets in the Middle East (and publicly stated by politicians such as Turkish President Erdogan) go in the opposite direction, stress the legitimate cause of the Palestinians and term the Hamas as a movement of national liberation. Such a narrative of liberation fighters leaves most of us with a strong dose of unease.

Clearly there is a legitimate cause in the fight of Palestinians against endless occupation. But do ends really justify means, at all price, as the praise for Hamas seems to suggest? A closer look to the normative underpinnings of current international law confirms the intuition that this is more than doubtful, as a thorough analysis of the (intensely debated) provisions on the status of movements of national liberation in IHL tells us. The issue of wars of national liberation led, in the context of the diplomatic conference of 1973-1977, to long and protracted debates. At the end, the contracting parties of the Additional Protocol I to the Geneva Conventions (AP I) agreed in Article 1 para. 4 AP I on including wars of national liberation in the scope of application of the Geneva Convention system. As a corrective, however, Article 96 para. 3 AP I foresees a specific declaration of a movement of national liberation if it wants to activate the legal rights and duties set out in the Geneva Conventions system – a declaration conditioned by the declared intent to apply all the legal disciplines of the Geneva Conventions and the Protocol. With other words: A ´liberation movement´ can only attain a respectable legal status as a party under the treaty system if it accepts to be bound by all the duties under the Geneva Conventions and AP I. But such a step entails the basic commitment to spare civilians and to operate according to the basic principles of distinction and proportionality.

Hamas is far away from such a commitment – just to the contrary, its ideological program defines the Jewish people in its totality as an enemy which must be eliminated. The massacre of 7 October where armed fighters were raiding the southern part of Israel, going from house to house in order to murder all the local inhabitants found present, irrespective whether they be elderly people, children, men or women, soldiers or civilians, ran counter to all fundamental principles of humanitarian law.  Such a deliberate attack on the civilian population is a blatant violation of the letter and spirit of the Geneva Convention system (see also Asseburg and Wiese, Verfassungsblog 20.10.2023). It constitutes, in the context of non-international armed conflict, a war crime in the sense of Art. 8 (2) lit. c (i) and Art. 8 (2) lit. e (i) Rome Statute. Not enough, Art. 7 (1) lit. a Rome Statute qualifies the same type of deliberate killings of civilians, if committed in the context of an extended and systematic attack on the civilian population, as a crime against humanity.

The legal assessment under the perspective of international law, thus, is crystal-clear: Hamas is far away from being a legitimate movement of national liberation – it constitutes a ´Joint Criminal Enterprise´ formed to commit crimes under international criminal law. The deeply criminal character of the assault means that we are not talking of a typical case of self-defence against an armed attack by another public actor but should understand the logic of the interaction in a law-enforcement perspective. This does not necessarily limit itself to police operations and criminal prosecution. There might exist an element of self-defence even in the fight against terror organizations, at least if the armed (criminal) organization is so strong in its potential of violence and so organized in military terms that traditional law-enforcement would inevitably fail (definitely the case with Hamas).

The need for a military counter-reaction, however, results in a deep dilemma. The criminal assault of 7 October has deeply traumatized Israeli society and has shattered the basic sense of security underlying daily life in Israel. In light of this, it would be completely unacceptable for Israeli society to appease Hamas again, trying to find an arrangement with the organization. In political terms, any Israeli government, irrespective of its political color, is doomed to go decidedly against the military structures of Hamas. International law (at the level of ´jus ad bellum´) is robust enough to allow for such a military campaign. But this finding does not resolve the question of the legality of military reactions in its entirety. The military campaign must also conform to the provisions of international humanitarian law. In this aspect, however, the Israeli campaign raises evident problems (see also Ambos, Verfassungsblog 17.10.2023). The intuitions of the current right-wing government of Israel to demonstrate utmost resolve have resulted in excessive measures blatantly incompatible with the laws of armed conflict. The most striking issue insofar is the complete cutting-off of Gaza from all types of supplies – electricity, fuel, foodstuff, medical goods – for a prolonged period, resulting in a complete ´siege´ of Gaza. Such a strategy of condemning the civilian population to starvation is explicitly prohibited under IHL, as can be seen from Art. 54 (1) AP I and Art. 14 AP II – both seen as expressing a rule of customary law (see Lauterbach).

Not that easy to answer is the core issue of collateral damages. Hamas, as a violent Jihadist organization de facto ruling the Gaza strip since more than 15 years, has in a very cynical way carefully prepared the ground for the battle raging now. “Prepared the ground” can be understood here in a very literal sense. The design of the military underground system of tunnels, caves and bunkers has deliberately placed the most important components of the subterranean military infrastructure directly under essential facilities of the critical civilian infrastructure, such as hospitals and schools, and in general beneath the most densely populated areas of civilian housing (see Cohen) The cynical calculus of such a spatial design is obvious – Israel shall be confronted with a deep ethical dilemma when going militarily against Hamas. The strategy, in essence, is oriented towards maximizing potential collateral damages among the Palestinian population. It means deliberately sacrificing significant parts of the civilian population for the political ends of Hamas.

The resulting dilemma for the Israeli military campaign is obvious. If Israel really wants to go against Hamas and to crush its organizational structures and its military infrastructure, this inevitably means that the attacker must calculate with enormous amounts of collateral damages among the civilian population. Even if you try to minimize such collateral damage as far as possible, this can only partly resolve the problem – the situation systematically created by Hamas condemns Israel to accept thousands over thousands of killed civilians if the campaign shall succeed (see also Medina and Enoch, Verfassungsblog 17.10.2023). This does not mean in itself that the horrible dimension of collateral damage per se leads to making such a campaign illegal.

The rules on collateral damage in IHL are quite robust and cover in extreme cases (such as that of the current Gaza campaign) even significant amounts of collateral damage; sheer numbers, even if they amount to thousands, do not tell us that much about the ´excessiveness´ of collateral damages in a legal sense. The law requires only, as is formulated in Art. 51 (5) (b) AP I, that any attack is prohibited “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. Two of the three analytical steps that must be undertaken in assessing the proportionality of incidental losses have a strongly prognostic character. The difference between military objectives and civilian objects is of a situative nature, depends very much on the concrete context – and the same is true for an assessment of the ‘expected’ incidental losses. In essence that makes the findings at the basis of the proportionality evaluation quite subjective – an evaluation which ends up in a balancing of two rather diverse aspects. If the “concrete and direct military advantage anticipated“ is of extremely high value, this may justify on the other side also very significant amounts of incidental losses.

As a result, one may well argue that Israel´s campaign insofar still stays inside the bounds set up under humanitarian law – but does this really help in the information battle raging since weeks in the global public? One should have doubts about this. The extreme robustness of the existing rules on collateral damage is already difficult to explain in the peace-minded publics of the West. As far as large parts of the global public opinion are concerned, Israel has definitely lost the propaganda war. The emotions of sympathy with the Palestinian cause, nourished by the blatant injustice going along with the prolonged occupation of Palestinian territories, now combines with a strong resentment of a presumed hypocrisy of the West. Why do you feel so shocked by less than 1500 Israelis dead, while more than 10.000 dead Palestinians do not concern that much? It is not easy to counter that argument – the reference to the legal differences between a deliberate (criminal) assault against a civilian population and the assumed legality of a military campaign with enormous numbers of tolerated collateral damages under innocent civilians seems not the right argument to convince publics in the Global South (and in particular the Islamic world). The depressing conclusion: The cynical calculus of Hamas seems to work and is on the way to achieve its intended results.

Bearing in mind the experiences of the US-led ´war on terror´ in the aftermath of 9/11, President Biden warned Israel not to fall victim to the intuitions of vengeance and not to repeat the mistakes made by the United State previously in its ´war on terror´ after 9/11. Although the purpose of effectively fighting terrorism in such a case needs the recourse to military means, the use of military force alone will never achieve the intended results. It must be accompanied by a sensible political strategy of tackling the underlying grievances. But what does that mean in the context of the Gaza campaign? Does the Israeli government have a clear idea how to deal in political terms with the situation in Gaza after the campaign will have achieved its intended goal? The answer probably is negative. The first ideas becoming visible in the fog of war point to a renewed tightening of Israeli control over the territory. After what has happened on 7 October, it is understandable that Israel wants to retain a strong degree of security control over Gaza. But re-establishing territorial control means going back to some form of direct occupation, even if moderated by (yet unknown) structures of local self-administration. Such an arrangement might only work with the iron fist of an Israeli security apparatus keeping down all kinds of dissidence. And the harsh campaign of bombing and widespread destruction even adds to the problem. Who is going to rebuild the infrastructure and housing for the more than 2 million people living in Gaza? The Arab states that would have the resources needed for such a concerted effort have already made clear that they are not going to step in, at least as long as there is no prospect for a sensible progress towards resolving the Palestinian issue. As an occupying power, Israel would bear alone the responsibility to reconstruct a functioning infrastructure of public services and adequate housing – but is Israel willing to do that?

Israeli society is ill-prepared to face the core dilemma lurking in the background. Ami Ayalon, former director of the Israeli Security Agency (Shin Bet), has written in an opinion piece recently published (together with two other authors) in Foreign Affairs that the horrific events of 7 October do only demonstrate “how unsustainable, and volatile, this abnormal reality” (of prolonged occupation) is. “It only helps”, he added, “to create fertile soil for the flourishing of the most inhumane forms of terrorism.”

With other words: As long as Israel does not try to find an equitable and just solution for the Palestinian question, there will be no way to achieve stability and sustainable security for Israel. Israel will end up again in a precarious and threatened security situation, will become isolated as a (hated) outsider in its region. The policy of ´normalization´ with the Arab states while sidelining the Palestinian question has blatantly failed. Relying on sheer military power might help for some time, but as a friend of Israel one should be concerned that such a path will end up in a political dead end. I am not sure that Israeli society is ready to handle productively the elementary choice that it is confronted with. If Israel does not take courageous steps out of the ´abnormal reality´ into which prolonged occupation has brought it, the security situation of Israel might become ever more dramatic.