What Justice Requires in Gaza
Israel went to war for a just cause. It is fighting that war, in too large part, unjustly.
“It is the object only of war that makes it honorable… We fight not to enslave, but to set a country free, and to make room upon the earth for honest men to live in.”
“Justice requires the defeat of Hamas. No more, no less. Israel has no need for revenge against the people of Gaza.”
Gaza City, the largest ever Palestinian urban center, is essentially no more. Tens of thousands of homes have been completely destroyed. A minimum estimate of 10,000 civilians have been killed, and while Israel continues its operations in the north, it has now turned its attention to the south, above all to Khan Younis—home, it believes (with good reason) to the remaining Hamas leadership. There it meets an already overcrowded population swollen further by those displaced from the north. (Khan Younis’s pre-war population has reportedly doubled.)
According to the UN, 85 percent of Gazans have been displaced and the population is subsisting on three liters of water per person, per day—a fraction of the recommended 15 liters. Food, medicine, and other basic means of survival are scarce. There are reasonable fears that the spread of diseases associated with such privation will soon pose a greater threat to life than Israeli ordnance.
The return on this investment has thus far been an Israeli-estimated 7,000 terrorists killed, and the rooting out of Hamas and its rival-cum-partner terrorist organizations from the bulk of the northern Strip. These are operational gains which, although militarily impressive, are miles short of Israel’s stated war aims, which include the total defeat of Hamas, the return of the roughly 140 hostages still held captive, and the effective neutralization of the entire Strip as a terror threat. If Israel is to succeed then more, and worse, is to come.
The scale of Gazan suffering, together with much of the world’s visceral antipathy to the State of Israel, is such that the proximate cause of this war has largely receded from the collective memory. I speak, of course, of Hamas’s massacre of October 7th, the Black Shabbat, whose bestial savagery is visible to all in sufficiently gruesome detail thanks to those, blessed with more fortitude than I, who sat through the Israel Defense Force’s screening of the footage obtained from Hamas bodycams.
Scholars in the “Just War” tradition have a name for the question of when military force is justified: jus ad bellum. Michael Walzer, the preeminent modern Just War thinker, argues that states may go to war only for national defense, to defend other states, or in response to “crimes that shock the moral conscience of mankind.” Fathers found lifeless atop their dead children in a last thwarted act of paternal protection; women raped and dismembered alive next to the corpses of their friends; babies burnt; old women humiliated, dragged, broken; young women bleeding through their underwear, paraded as trophies; survivors hiding under their families’ dead bodies waiting for the all clear; young boys kidnapped, paraded as sport, shoved to and fro by a group of their peers, taunted and degraded... I think it’s fair to say that the moral conscience of mankind—or at least that part of it whose souls are not degraded by the moral-intellectual stupidity of our age—was shocked indeed.
That Israel was duty bound to respond militarily seems to me an unimpeachable proposition. Jus ad bellum is not up for debate. Israel had no choice but to go to war, not least since October 7th was so self-evidently a declaration of war against it. It is a war not merely of the kind of self-defense Walzer identifies as legitimate, but of existential self-defense. It is existential for two reasons: first, it is being waged against a self-declared eliminationist foe backed by Iran, an explicitly antisemitic patron; second, the 200,000 citizens displaced from Israel’s southern and northern peripheries need convincing that these sections of a very small country are safe enough to return to. The residents of the whole country, in fact, need to feel it is a secure enough place in which to raise one’s children.
Scholars also have a set of standards for conduct once war is underway: jus in bello. In the Walzerite Just War tradition, jus in bello requires, above all, a scrupulous distinction between combatants and civilians. And, notwithstanding my overall support for Israel’s cause, and my opposition to the reflexive hostility to Israel of the UN and other major international actors, I agree with much of their criticism of Israel in this regard. This is a just war being fought, in too large a part, unjustly.
The strength of the ordnance and the total tonnage of the payloads dropped on Gaza have increased dramatically compared with earlier operations (bombs as heavy as 2,000 pounds have been used in Jabaliya, for example). Tolerance for civilian casualties is higher. Entire high-rise buildings are considered fair game if terrorists operate from so much as one floor. The practice of “knocking on the roof,” by which residents are warned of an impending strike by way of a non-lethal hit to the building, has been suspended.
Israel has repeatedly warned residents in advance that an area is shortly to become a battleground—with leaflets, and with extraordinary personal phone messages. Still, the scale of the bombing belies any pretense of surgical precision, and Israel’s lack of transparency regarding how each leveled building constitutes a military target leaves a vacuum that will be filled, by most, with a judicious application of Occam’s Razor. It is clear: anything with even a tangential connection to Hamas has and will be struck.
In a statelet like the Gaza Strip, whose every facet the murderers have subjugated to its vile rule over the last 16 years, this amounts to pretty much everything. But even in cases where a civilian target has been rendered a military target by the enemy, the principles of distinction and proportionality still apply. And in too many cases, these principles have not been adhered to. In October, the IDF itself said that “the emphasis is on damage and not on accuracy,” while Haaretz’s latest estimate (admittedly preliminary and unscientific) is that in the early stages of the bombing of the north, the ratio of civilian to combatant deaths in Gaza was 61:39—a dramatic increase on Israel’s previous four Gazan campaigns, and high, says Haaretz, in comparison to the global post-WW2 norm.
On the question of aid, the situation is even clearer. The initial “total siege” of Gaza conducted by Israel amounted to a collective punishment inadmissible under either international law or the tenets of Just War, as I have argued elsewhere. Since the lifting of the total siege, Israel has refused to bow to international pressure to open the Israel-to-Gaza Kerem Shalom crossing to permit the flow of aid. Instead, aid goes to Egypt, then to Israel for security inspection, and then back to Egypt for transfer through the Rafah Crossing.
There is no operational necessity for this. It appears to be based on Israel’s wish to signal that, having long been a conduit and provider of power and supplies to Gaza, those days are over, and Gaza must now look to its own devices or rely on the Arab world. A secondary consideration is that Prime Minister Benjamin Netanyahu fears the wrath of the far-right members of his coalition government were he to permit aid to flow more directly.
Both calculations are, in my view, morally unacceptable, especially Netanyahu’s ever-cynical attempt to rescue his necrotic political career. Regarding the first calculation, it’s certainly true that Israel should not be required to provide or finance aid to enemy territory during wartime—but once externally supplied aid has been checked in its own territory, I see no operational justification for it then being rerouted. Rafah is ill-equipped to process aid of the quantity required, and this time-consuming arrangement is partly responsible for the fact that last month’s pause in fighting did not lead to an increase in aid on the scale required by its beleaguered people. Creative solutions have been sought, but by far the best solution is for Israel to take the humane and politically expedient decision to allow aid through Kerem Shalom. Some friends will, I know, balk at my demand that Israel aid the enemy in this way. Let them balk. To allow it would be humane and to refuse is pettily cruel. (It should be noted that I’m speaking mainly about food and medicine here. Fuel is a more complicated dilemma, given its essential utility to Hamas military infrastructure and Hamas’s propensity to steal it from civilian sources.)
Much of the Israeli discourse suggests that something beyond military necessity is behind the obstacles placed on sufficient aid reaching the Gazan people. Witness Giora Eiland, part of a defense ministry team charged with drawing up options for a post-Hamas Gaza, writing in Yediot Ahronot, the most widely read Israeli daily. Eiland chides the Israelis for what he regards as their excessive deference to American squeamishness in the prosecution of the war. “According to the American narrative,” he writes, “there are two groups of people in Gaza. The first group is Hamas guerrillas, who are brutal terrorists who, as such, are marked for death. The second group is the majority of the people in Gaza, innocent civilians who are suffering through no misdeed of their own.”
This seems to me an accurate summation of the view of Biden and Blinken, and I am with the Americans on this. But according to Eiland, we are wrong and naïve. He would have the Israeli government tell the Americans to go to hell:
“[The] more correct narrative is the following: Israel isn’t fighting against a terror organization but against the State of Gaza. The State of Gaza is led by Hamas, and that organization has successfully marshalled all the state’s resources, enlisting the support of a majority of its residents and securing the absolute fealty of the civilian administration to serve [Hamas leader Yahya] Sinwar’s leadership, amid full ideological support for that ideology. In that sense, Gaza is very similar to Nazi Germany, in which a similar process unfolded.”
There are no, or few, innocent Gazans, then, and all are fair game—a point Eiland renders explicit by stating: “who are the ‘poor’ women of Gaza? They are all the mothers, sisters and wives of Hamas murderers.”
Were Eiland a lone hawk, then my focus on his odious words would be disingenuous. But Eiland speaks to a wider feeling about the culpability of Gazans. Israel’s generally dovish president, Isaac Herzog, told reporters that “it is an entire nation out there that is responsible” for October 7th. Former Defense Minister and current opposition figure Avigdor Lieberman asks: “where are those innocent people in the Gaza Strip hiding?”
This diagnosis of the rot in Gaza cannot be wholly dismissed. Even those of us who would place far greater emphasis on the separation of Hamas from Gazans en masse should concede that the poison of antisemitic violence runs very deep indeed. It is the product of several factors: the spread of Islamist fanaticism by Hamas’s repellent “education” system; outside influence, especially from Iran and Qatar; and, yes, Israel’s economic blockade, which can only partially be excused by Hamas’s violence. As the grotesque celebration that took place on Gazan streets after October 7th attests, the poison has spread far and wide.
Even if I do not disagree with Eiland’s low estimation of the state of Gazan society, the conclusions he comes to are contemptible. We should not be concerned, he says, about the prospect of rampant disease in Gaza, since “severe epidemics… will bring victory closer and will reduce the number of IDF casualties.” But Gazans, whatever the perversions to which many of them have been bent, are not mere ephemera, inconvenient chaff to be blasted en route to Hamas leaders Yahya Sinwar and Mohammed Deif. Civilians are not a means to an end, but an end in themselves in Kant’s sense. Israeli military tradition, codified in the IDF’s Code of Ethics, demands that individual soldiers and the army as a whole act accordingly. “IDF soldiers will not use their weapons and force,” it states, “to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.”
Fine words. And let it be said that of the two parties to this conflict, only one acts with any care for the welfare of the Gazan civilian population—Israel. It has tried, in the teeth of Hamas counter-orders, to encourage Gazans to move away from the fighting. Hamas not only does nothing to mitigate their deplorable situation but actively worsens it at every available opportunity. Having knowingly exposed them to their current trauma through their actions on October 7th, it now hinders their passage to less dangerous areas of the Strip (there are no truly safe ones) and plunders the little aid that has been able to get through.
Despite all of this, the hawkish attitude within Israel is dangerous—a view shared by the Biden administration. Biden, Anthony Blinken, Lloyd Austin, John Kirby and Kamala Harris (like myself, all friends of Israel) have repeatedly implored the Israelis to take far greater care in their operations. Per The New York Times, U.S. advisers have recommended to Israeli counterparts that more intelligence on Hamas command centers be gathered before strikes on them are launched; that Hamas leaders be targeted more surgically; and that smaller bombs be deployed against the vast network of Hamas tunnels, many of which lie underneath civilian buildings.
And so fighting the war with far greater regard for civilian casualties is in the Israeli pragmatic as well as moral interest. Israel needs American support, both material and diplomatic, to continue the fight against Hamas. And while the United States has shown the patience of Job when it comes to Israel, its forbearance is not limitless.
To be clear, the lazy drawing of moral equivalence between Israel and Hamas (there are even those who claim that Israel is worse) is a grave error. Israel seeks to defend itself; Hamas seeks to kill as many Jews as possible in pursuit of the destruction of the Jewish State. Israel makes at least some effort, though not enough, to distinguish between civilians and combatants and to avoid the former; Hamas makes no such distinction and considers a dead civilian Jew as valuable as a dead Jewish soldier. Hamas employs rape as a weapon of war; Israel does not. The list of distinctions could go on and on.
Seeking to limit civilian casualties while fighting an enemy that has deliberately embedded itself amongst as many civilians as possible is, to use a phrase from the late Warren Christopher, a problem from hell. To prevent Israel from waging war against such an enemy would be to give Hamas an immunity it does not deserve, and neither international law nor the Just War tradition deny that a war in which civilians die, even in large numbers, can be just when waged for the right reasons. But neither does Hamas’s cynicism free Israel of its duty to protect civilians. United States Ambassador to the UN Linda Thomas-Greenfield affirmed as much when she noted that “Hamas continues to use people as human shields, but this does not lessen Israel’s responsibility to protect civilians under international humanitarian law.” These laws exist to mitigate the horrors of war whilst respecting that recourse to arms is sometimes unavoidable; c’est la guerre is no proper retort to their infringement.
How much injustice can a war contain before it is no longer a just war? History is certainly replete with wars we consider just on the whole, but which were littered with gross violations of human rights and decency. What was true on October 7th is true today: Hamas is a mass-raping, civilian-slaughtering, baby-kidnapping evil, whose defeat should be supported by all friends of Israel and all friends of Palestine. But I cannot be silent when my own reason and my own heart conclude that Gazan civilians are not being sufficiently protected. In the failure of Israeli strikes to distinguish between civilian and terrorist, and in the hampering of humanitarian aid efforts, too much of this war is being fought unjustly.
My own brand of Zionism is often accused of “shooting and crying”—of advocating Israeli self-defense and then shedding crocodile tears at the subsequent loss of Palestinian life. I have never quite understood the insult here. In Israel’s tough neighborhood shooting is, and will likely always be, required to some extent. To cry over it seems to me to be to recognize the tragedy in this reality, to advocate Israeli responses that cause the least unintended Palestinian suffering possible, and to continue to work towards a day when gunfire might ring a little less often.
Those who would always see the worst in Israel deny both its legitimate reasons for waging war and that it has ever acted with compassion on the battlefield. Those who would always see the best in Israel, meanwhile, would deny that it ever errs. Both are wrong, and so I say to Israel: fight, but fight better. Too much of this war’s inherent justice has been sacrificed already, and only by doing so now can it remain just.
Jack Omer-Jackaman is Senior Research Associate at the Britain Israel Communications and Research Centre and Deputy Editor of Fathom.
And, to receive pieces like this in your inbox and support our work, subscribe below: