The Gaza conflict could forever change how we apply the laws of war

A desensitisation to civilian death could be the most lasting impact of the horror in the Middle East

December 20, 2023
Palestinians praying for those killed by Israeli attacks on Gaza. Image: Adel Al Hwajre/IMAGESLIVE via ZUMA Press Wire
Palestinians praying for those killed by Israeli attacks on Gaza. Image: Adel Al Hwajre/IMAGESLIVE via ZUMA Press Wire

Beyond the untold number of human tragedies caused by Hamas’s murderous attacks and Israel’s vengeful response, wider concerns have been voiced about the effect of the Israel-Hamas war on the destiny of peoples throughout the region. Strategic analysts have mused too on how it will influence the constellation of American—and by extension British—power in the world. But the most deadly impact of the conflict may yet prove to be on the practice of war itself. 

In a private meeting last week, President Biden described Israel’s bombing of Gaza as “indiscriminate”. The word matters because it refers to a specific violation of the laws of war, the body of international rules governing the conduct of hostilities and protecting non-combatants that was anchored after the Second World War in the Geneva Conventions. Now most often referred to as international humanitarian law (IHL), these rules are independent from the “jus ad bellum”, the law governing the right of recourse to force (and associated debates about Israel’s right to defend itself or a Palestinian right to resist). IHL sets basic minimum humanitarian standards and applies universally and equally to all parties to a conflict—irrespective of the justness of their cause. 

From an early stage of the Israel Defense Forces’ operation in Gaza there have been grave concerns about disproportionate civilian “collateral damage” from Israeli airstrikes on military targets. But many experts were nonetheless cautious about calling out Israel for violating IHL, even as they (correctly) denounced Hamas’s war crimes. At some stage in their careers many lawyers in the US and UK armed forces will have trained alongside Israeli lawyers. Some of the leading authorities on IHL are Israeli (quite a few of whom have been critical of the IDF in the past). When Israel goes to war, it takes its lawyers with it. But the reasons for muting criticism go beyond collegial respect. It is often not understood that the civilian death toll—even one now in the region of 20,000—is a poor indicator of unlawfulness. IHL operates by regulating conduct at the level of each specific attack. Establishing whether a violation occurred requires information about each intended target, any expected civilian presence and other knowledge available to the commander at the time of the attack—information which militaries do not tend to divulge. The command centre is the black box at the core of determining IHL violations. 

It has become increasingly clear as the conflict goes on, however, that Israel’s tolerance for civilian harm is multiples greater than that shown by the US and UK even in attacks on high-value targets in the wars against Islamic State and al-Qaeda. An attack on the Jabalia refugee camp on 31st October was illustrative. In order to kill a local Hamas commander and destroy the tunnels from which he was operating, the Israeli Air Force fired multiple joint direct attack munitions, including at least two 2,000lb bombs, bringing down several residential apartment buildings (killing over a hundred civilians and wounding hundreds more, as must have been expected). 

The most deadly impact of the conflict may yet prove to be on the practice of war itself

Which brings us to indiscriminate bombing. An indiscriminate attack is one which is of a nature to strike military objectives and civilians or civilian objects without distinction. It is therefore a violation of the most fundamental IHL principle of all: the duty to distinguish between military and civilian objects and to direct attacks only against military objectives. Changing the focus of analysis from an allegedly disproportionate attack to an indiscriminate one doesn’t spring open the black box, but it does make it easier in certain circumstances to determine a violation based on a pattern of conduct. 

Last week we learnt that US intelligence believes that, unlike the precision weapons used in the 31st October Jabalia strike, nearly half of the 29,000 air-to-ground munitions the IDF has used on Gaza to date have been unguided, so-called “dumb bombs”. This is in addition to the over 100,000 heavy artillery shells that the IDF has fired since 7th October, nearly all of which are unguided. Unlike precision weapons, which can achieve accuracy of a few metres, unguided munitions will typically have a target area the size of a football stadium, with up to 50 per cent expected to fall further afield. In densely populated urban areas, the effect is catastrophic. 

Satellite imagery and photographs from Gaza show whole neighbourhoods razed to the ground. Like other forms of indiscriminate attack, IHL prohibits carpet or area bombardment, defined as an attack “which treats as a single military objective a number of clearly separated and distinct military objectives located in a city… or other area containing a similar concentration of civilians or civilian objects”. 

To find a US or UK parallel to the intensity of urban destruction currently underway in Gaza requires going back many decades before the wars in Iraq, Syria and Afghanistan. The Israeli prime minister himself made the point when Biden challenged him: “You carpet-bombed Germany,” Benjamin Netanyahu said.

The historian Robert Pape, author of Bombing to Win, ranks Gaza beside Dresden, Hamburg and Cologne as one of the heaviest conventional bombing campaigns in history. Indeed, the comparison with Allied bombing of German cities has become a common trope and not just among Israeli politicians. “We’ve sort of forgotten that in war, very sadly, people lose their lives,” UK Defence Secretary Grant Shapps told the BBC on 12th November. “When Britain bombed Dresden, 35,000 people apparently lost their lives.” 

Seeking to justify Israel’s conduct by comparing it to Allied bombing in the Second World War—before the Geneva Conventions were agreed and before area bombing was specifically outlawed—is not just applying a measure from a different age. It is also a challenge to the current understanding of IHL rules on civilian protection. It might be tempting to dismiss Shapps’s statement as a gaffe, were it not for the fact that it echoes an emerging theme in military circles on both sides of the Atlantic: one that calls for a relaxation of the constraints on military operations as Nato moves from an age of counter-terrorism campaigns to potentially facing “near-peer” adversaries in the form of hostile states. Despite denouncing Russian tactics in the war in Ukraine, senior military officers in the US have called for greater “legal manoeuvre space”. 

At the same time, the briefings the US president is receiving about Israeli indiscriminate bombing evidence a growing disquiet among officials. They are not just uncomfortable with the failure to condemn the violations committed by an ally. The US continues to expedite heavy munitions to Israel, enabling the very attacks that Biden has now indicated are unlawful. 

If administration officials believe Israeli operations violate the laws of war, then continuing to provide military support and diplomatic cover both makes them complicit and has a wider corrosive effect. It weakens the role of operational lawyers within defence institutions, it inflates the tolerance for civilian harm in military calculations and it undermines any credibility when seeking to uphold IHL standards internationally. These factors will help shape how the US, the UK and other Nato militaries fight the wars of the future.  

The very notion that behaviour in war can be governed by law often triggers cynicism and, indeed, every conflict sees instances of violations of the laws of war. But the universal ratification of the Geneva Conventions and the strength of the prohibition on attacking civilians act as a powerful restraint on the conduct of military operations. Increasingly, these laws have provided the language by which we describe the effects of conflict and set definite limits between what is acceptable and what is not. Those limits are now under serious threat.