Civilians, Reprisals, and Reciprocity: A Comment on the Gaza-Israel Conflict

If you are being attacked by a homicidal maniac trying to chop your head off, you are unlikely to be amused if the humanitarian watching from the sidelines, after having dutifully condemned the attack, immediately proceeds to demand that you “exercise restraint” in your defense. A reader suspecting this to be an analogy to the Gaza-Israel conflict might point out that, first, restrictions do apply to permissible self-defense, and second, that military counter-measures and siege-like methods will harm not only attackers but also innocent civilians. In other words, Israel might be excusably annoyed, but cannot rightfully complain about demands to exercise restraint.

Yet Israel could justifiably complain if certain proposed restrictions, as currently happens, are elevated to the status of definitely binding legal and moral rules even though they are not applicable to the conflict in question, or at least not nearly as clearly as claimed.

First, speaking from the perspective of international humanitarian law (IHL), that is, the laws of war, the civilian/combatant distinction does not apply here. The Hamas “fighters” are not members of a recognized armed force, nor did they in their killing spree abide by the requirements that Article 4A(2) of the Third Geneva Convention imposes on irregular armed groups, among them “having a fixed distinctive sign recognizable at a distance,” “carrying arms openly,” and “conducting their operations in accordance with the laws and customs of war.” Additional Protocol I (which extends certain protections of the laws of war to “liberation movements”) is more permissive, but still requires such armed forces to “be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” This is manifestly not the case with Hamas.

Thus, Israel is not faced with a distinction between combatants and civilians, but between civilians that are liable to attack and those who are not. Civilians “directly participating in the hostilities,” as the legal formulation goes, are liable to attack, that is, they can be intentionally targeted without violating their rights. “Direct participation” includes civilians producing weapons for “the war effort” or delivering it to any frontlines or launch sites.

Moreover, arguably even civilians who do not directly participate in hostilities could, in this conflict, in principle be legally subjected to intentional attacks. The reason for this is that Israel is not a party to Additional Protocol I, which, among other things, rules out so-called “belligerent reprisals” against civilians (not directly taking part in hostilities) in non-occupied territory (they were already ruled out for occupied territory). Belligerent reprisals are intentional “infringements” of a rule of the laws of armed conflict committed with the aim of inducing the enemy party to discontinue its violations of the same or another rule of the laws of war. They are not real violations if they have said aim and are a last resort and proportionate.

Israel is not the only country that has reservations about doing away with belligerent reprisals. Such reservations have also been expressed, among others, by the USA, the United Kingdom, and Germany. Given these reservations by major powers, the often-heard claim that an absolute prohibition of belligerent reprisals against civilians is now jus cogens is not credible. Equally dubious is the claim that Gaza is occupied territory. After all, Israel has withdrawn a long time ago and Gaza is now subjected to the rule of the Hamas. All this, of course, does not mean that Israel is ipso facto permitted to engage in targeted attacks on civilians not directly participating in hostilities, but it does mean that such attacks are legally not absolutely prohibited.

Neither is a blockade of Gaza without allowing “humanitarian aid” to get in. While a prohibition on starving the civilian population is arguably part of jus cogens now, majority opinion appears to be that this prohibition refers to starvation that targets the population, while “collateral starvation” in the course of starving enemy forces would remain legitimate. One can, incidentally, not prove intent by pointing to vengeful declarations of selected officials (and ignoring the opposing declarations of other officials); rather, intent needs to be derived from tactic and strategy, and telling people to leave an area under siege hardly squares with a supposed intention of starving them. Moreover, it goes without saying that cutting off electricity is not the same as starving.

Of course, neither blockades or reprisals, nor, in fact, any other military measure may be disproportionate. Yet proportionality is the most elusive principle in the laws of war. Since the law itself gives little concrete guidance on what is and what is not proportionate, it is indispensable to draw on ethical considerations to make an informed assessment.

One fundamental element of morality is a principle of reciprocity. It is sometimes expressed in the Golden Rule “Do unto others as you would have them do unto you,” but is in fact even more plausible and stringent in its negative form, meaning that your moral rights are conditional on your respecting the same rights of others. A murderer has no standing to complain if others do unto him what he is so very willing to do unto others. Likewise, civilians applauding the slaughter of women and children, as many recently did in the Gaza strip, forfeit or at the very least diminish their standing to complain if the opponent refuses to give their lives more weight than they themselves accorded the lives of innocent others. This shifts proportionality restrictions in a way that give more moral latitude to the Israel Defense Forces.

None of this implies that the IDF should make use of this latitude. They probably won’t. This, however, would confirm that civilized nations and armed forces, in contradistinction to murderous thugs, sometimes go beyond the call of duty.

© Uwe Steinhoff 2023

The German version of this article is available here. (Die deutsche Version dieses Artikels ist hier erhältlich.)