Moral war, a contradiction of terms

Reading Time: 18 minutes

The Book of Judges, or Shoftim, is one of the most brutal sections of the Christian and the Jewish bibles. Its history of the early tribes of Israel is cyclical: a tribe with whom YHWH has made a covenant becomes disloyal, often by living among people of other faiths, and the punishment is that they cannot control other nations, or that they otherwise fall into hardship among them. A tribe cries out for aid, a champion is granted favor through trial or task, and YHWH vows the slaughter or subordination of their enemies through this mortal instrument. Successful in battle, the tribe enjoys a period of glory and stability until the cycle begins anew.

But in the closing sections, which include the story of a man who sends his concubine to be raped to death in his stead, then delivers her body parts to rally Israelites for war, and tribes that go to war with other tribes to murder men and women and kidnap the “untouched” girls for wives, we have a striking repetition:

In those days there was no king in Israel;

every man did that which was right in his own eyes.

Judges 21:25, KJV

Variations on the phrase come up often, hinting at the idea that all this brutality was caused by the lack of a just king, someone who could bring order to the land.

When I first read this book, as a secular child reading the Christian Bible from beginning to end, I was struck by the concession in this statement. These were all people who believed in a god, but somehow that wasn’t enough to make them act any better toward one another. They raped, pillaged, and murdered, often expressly by their god’s command, and the text itself conceded that only when a better human came along would the ethics of this world improve.

For Jewish readers, that human is Saul, the king famously known for his wisdom, who would organize these warring tribes ruled by judges into a more coherent state.

For Christian readers, that line is also sometimes read as invoking the need for Christ: a supposedly perfect being despite his own prejudice against the Canaanites, whom he refers to as dogs when he was sent for the children of Israel.

But the lesson for a secular reader was clear: belief in a god didn’t make a person “better”, and conviction in a god being on one’s side often made one worse.

As I grew, the key follow-up lesson was this:

Humans are very good at acting self-righteously whether or not we believe that an actual god is on our side. Unfortunately, we all have the ability to rationalize most any conduct on “our” side as legitimate and necessary, while the same from someone else is seen as barbarous and deserving of swift, sweeping reprisal.

And what a challenge that behavior poses, when trying to build a kinder world.

Retaliatory violence

The State of Israel recently launched a “complete siege” on the Gaza Strip, after a series of October 7 attacks by Hamas killed hundreds of Israeli citizens at a peace festival, in their homes, and at military outposts. The death count for Israeli civilians and military stands at around 1,300 as of Thursday, October 12, while around 1,500 Hamas attackers were reportedly killed on Israeli territory. Dozens of Israeli citizens (estimates vary up to 100) were kidnapped by Hamas that same day, and Hamas has said that at least four hostages were killed in Israeli’s retaliatory bombing of the Gaza Strip. Hamas representatives further threatened to kill more hostages in response to any Israeli aerial attacks yielding civilian deaths.

US, Thai, Nepalese, French, Russian, Argentinian, Ukrainian, British, Cambodian, Filipino, Canadian, Colombian, Peruvian, Chilean, Austrian, Brazilian, Italian, Paraguayan, Sri Lankan, Mexican, Tanzanian, and Irish citizens are also among the dead, kidnapped, and/or missing from events this past Saturday.

READ: War, again

In the Gaza Strip, where 2.3 million Palestinians live, the death count from Israeli aerial bombardment currently sits at over 1,500 Palestinians, around 450 of them children. UN officials note that 420,000 people have now been internally displaced, meaning that they are sheltering at UNRWA schools or among others’ homes in the region. Global powers have been calling for an end to the siege, or at least for the creation of a humanitarian corridor for civilians to escape.

The Gaza Strip has been under a 16-year blockade by sky, land, and sea. This situation dates back to when Hamas won control of the legislative council in 2006, after Fatah had won the presidential election the year prior. Hamas, an organization with an express mandate to kill Jews and eradicate Israel, used its legislative wins to refuse Fatah’s authority over Palestine, and to destroy the fragile path to stable society first shaped by the Oslo Accords. Hamas then seized the Gaza Strip, while the Palestinian Authority (PA) under Fatah retains governance in the West Bank.

As Israeli Defense Minister Yoav Gallant initially described Israel’s retaliatory action against the Hamas-controlled region, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we are acting accordingly.”

Israeli Energy Minister Israel Katz went one further on the social media platform X, by tying the presence of humanitarian aid to the full release of all hostages: “No electrical switch will be lifted, no water hydrant will be opened and no fuel truck will enter until the Israeli hostages are returned home. Humanitarian [aid] for humanitarian [aid]. And nobody should preach us morals.”

The Gaza Strip also borders Egypt, but Egypt refuses to create an evacuation corridor. This is nothing new; Egypt has always tightly restricted Palestinian access over the years. According to Egyptian media and government, the country sees the creation of a corridor as participating in the eradication of Palestinians from their territory. The argument is that Egypt is protecting “the right of Palestinians to hold on to their cause and their land”. The country is, however, in discussion with world leaders to deliver humanitarian aid into the region. Jordan has also sent in the first plane with supplies for Palestinians.

The fury and the fog of war

All of the above information has lately come to us through heavy rhetorical and emotional filters, many with the express aim of diminishing the full trauma facing this region. There have been claims that Palestinians deserve everything coming to them because “they voted for Hamas” in 2006, and “clearly no one else wants them either” if Egypt won’t facilitate an exodus. Also, if this population of nearly 50% people under the age of 19 can’t get water, food, or fuel, so what, some argue: maybe if they hadn’t “allowed” terrorists to run their region for years, they could have secured their own systems by now. Just as there are whole groups who want to see every last Zionist and Jew slaughtered, so too are there people keen to see Palestinians as an inferior “breed”, a form of humanity that does not deserve to exist.

This level of hate is by no means unique to the region, though, or to this conflict. It flourishes not only in war, but also amid any political action that drives disgust. In the US, whenever states like Texas or Florida advance dehumanizing laws, the charge comes swiftly even from so-called liberal progressives: maybe the whole region should be cut off, bombed, or sunk, to spare the rest. Never mind all the people suffering under those new state laws, the argument goes; if they didn’t want to be seen as lost causes, they should have done more to fight their leaders sooner.

Likewise, after Russia invaded Ukraine on February 24, 2022 (and to the pain of a great many blended families), stories came out of the woodwork of personal negative experiences with Russians, anecdotes meant to figure the whole country as a land of sociopaths. Feel nothing for them! If they allow Putin and the Kremlin to destroy Ukraine, if they buy into all the state propaganda, if they don’t throw themselves into protest, torture, and prison to fight the war, then they are all the worst scum and deserve whatever vengeance is wrought upon their land!

US citizens know this rhetoric well from after 9/11: The immediate hostility for people with brown skin and Middle Eastern features. The attack on all things Muslim. How hard it was for media outlets to call for anything less than retributive violence during the War on Terror. Bomb the Middle East back into the Stone Age! It’s already halfway there! We can’t let the terrorists win! Between 2001 and 2021, the US war in Afghanistan killed over 70,000 Afghan and Pakistani citizens, and over 243,000 people in total. Civilian casualties surged after rules of engagement were relaxed by US authorities in 2017. The end of the war then delivered the region into an ongoing humanitarian nightmare of Taliban rule, famine, and economic destitution.

In the last few days, the Israel-Gaza conflict has undergone propaganda cycles of its own: a normal occurrence in any confrontation where people are trying to fortify themselves so that they can participate in violent retaliation without guilt. An uncorroborated claim of 40 babies beheaded by Hamas spread so fast that even US President Joe Biden recently misspoke, claiming that he had seen evidence of it when he had not. But he was far from the only one to do so, because amid the trauma of an active threat, wild claims don’t need to be accurate to serve our outrage. We are waiting for the sensational to whip up our anger further.

This particular claim, which seems to have originated with David Ben Zion, an Israeli settler who in February called for wiping out the Palestinian village of Huwara, held the West’s attention because it first came to us through a clearly haunted young reporter moving through a plainly heartbreaking site of civilian atrocity. The uncorroborated but highly emotional claim then spread across Western media, unquestioned by many editors, while hundreds of Palestinian children were suffering and dying via aerial bombardment. IDF has since acknowledged that it can neither corroborate that claim of beheaded babies, nor many elaborate claims of rape that circulated in initial days after the attacks. Mainstream media that first rushed to share rumors on both accounts have since had to place corrections in related content, including over the speeches of relevant political leaders.

But the underlying disgust that these claims first fortified had already done its work. In online forums, a common refrain was that, while people had supported Palestine before, hearing about beheaded babies and mass rapes was a bridge too far. No more. The whole region was clearly depraved, if it could support a leadership that beheaded children. Bomb them all to Hell, if that’s what it took to weed Hamas out.

READ: ‘Beheaded babies’: Horrific atrocity or propaganda?

As Biden said in a speech on October 10, “pure, unadulterated evil [has been] unleashed on this world.” But the nature of that “evil” is complex: connected not only to initial perpetrators of atrocity, but also how atrocity changes those who survive it, and how it works upon a normal human behavior: fundamental attribution error.

This term speaks to our proclivity to rationalize our own mistakes as situational, while assuming that other people’s negative actions come from intrinsically negative characteristics. In short, we are quicker to assume that people associated with terrible events are themselves negative or “bad” people.

This cognitive bias manifests everywhere: in workplace dealings, with how everyone’s last relationship failed because the ex was “crazy”, and in how we respond to seeing people in pain. This bias shows up, that is, in tandem with the just-world hypothesis, first proposed by Melvin Lerner in the 1960s. This form of fallacy takes as a given that the world is generally “just”, and therefore that the likeliest explanation for someone being in a difficult situation is that they must have done something to bring suffering upon themself.

And because humans feel discomfort when we see others in distress, witnessing distress can make us blame the suffering, for failing to fix their circumstances so that we don’t have to be uncomfortable while looking at them anymore.

In a famous test in this psychological wheelhouse, Lerner noted that observers were more hostile to a person they saw suffering if the story they’d been told about her suffering didn’t have much of a reward attached. As Lerner wrote, “The sight of an innocent person suffering without possibility of reward or compensation motivated people to devalue the attractiveness of the victim in order to bring about a more appropriate fit between her fate and her character.” This has been the foundation of a whole subfield of research on victim-blaming and social distance: ways in which we rationalize our way out of caring for someone undergoing harm.

And it’s a normal part of human behavior, even in times of peace.

So what about times in times of communal distress?

In his first address after the attacks on Israeli citizens, Biden stated that

Like every nation in the world, Israel has the right to respond — indeed has a duty to respond — to these vicious attacks. I just got off the phone with — the third call with Prime Minister Netanyahu. And I told him if the United States experienced what Israel is experiencing, our response would be swift, decisive, and overwhelming. 
 
We also discussed how democracies like Israel and the United States are stronger and more secure when we act according to the rule of law. Terrorists purposefully target civilians, kill them. We uphold the laws of war — the law of war.  It matters.  There’s a difference.

“Remarks by President Biden on the Terrorist Attacks on Israel”, October 11, 2023

Although Biden likely didn’t mean to, his stutter around one of those last lines drives home the crux of the issue: there are indeed “laws of war”. And there is “the law of war”. But they are not the same thing. One is human attempts to create something resembling consensus-based order out of war’s chaos. The other is the law, the furious self-righteous logic, that guides those who have been pitched into war itself.

It’s all too easy to believe in “just world” solutions to questions of sovereignty and individual rights, ethnic and geopolitical destiny, that are right now being answered in the blood of civilians.

Our global mess around rules of war

International humanitarian law includes documents like the Hague Convention (1899), the Geneva Conventions (1949), and its additional 1977 protocols.

There are two key concepts in related legal discourse: Jus ad bellum (the conditions that permit a state to resort to the use of armed force) and Jus in bellum (how parties engaged in armed conflict are supposed to comport themselves).

A fundamental rule under Jus in bellum is that civilians should not be targeted. This does not mean that civilians are never going to be harmed, but that an attack “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof” needs to be weighed carefully against expected military gains. If the military benefit is not proportionate, the action should not be carried out. Moreover, attacks on hospitals? Unacceptable. Hostage-taking among civilians? Inexcusable. And civilians have a right to access humanitarian aid.

Furthermore, retribution for the acts of combatants is strictly prohibited from being imposed on non-combatants. As the Geneva Conventions read,

No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.

Article 33 of The Geneva Conventions, 1949

And lest this be viewed as too modern an approach to punishment, even Deuteronomy advises, for all its brutal episodes, that

The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin.

Deuteronomy 24:16, KJV

(Which raises its own hard truth: collective punishment has been around for a long time, if we needed decrees against it in 7th century BCE.)

Under Jus ad bellum, Israel is fully entitled to self defence.

Where the international community struggles is in how to enforce Jus in bellum.

Israel is indeed preparing for a ground assault on Gaza, which would significantly cut down on civilian casualties. However, that decision will come at the cost of more IDF fighters, since Israelis are at far more of a military advantage when attacking from the air. Although a ground invasion will be necessary to achieve IDF goals involving the complete eradication of Hamas operatives in the region, there is a strong self-preservation instinct behind the desire to ensure that Israeli soldiers will be as secure on the ground as possible, when they get there.

Even if that means a great toll for Palestinian civilians in the interim.

As of late October 12, for example, the UN has told Reuters that Israel wants 1.1 million Palestinians in Gaza to migrate south in the next 24 hours: a massive ask, with potentially devastating human consequences.

International judicial failures

In theory, this is where a robust international community should come into play, as arbiter of local events especially in times of humanitarian transgression. However, we do not have a robust community when it comes to the adjudication of such affairs. What we have is a longstanding and complex acculturation to the use of collective punishment across world regions, and a widespread failure to hold all relevant political groups to the same international standards.

Ours is a world, after all, in which a member of the UN Security Council is actively engaged in the invasion of a UN member state, and there is an international warrant out for that Security Council member’s leader, for war crimes. We are hardly playing with a full deck of international upholders of civilian rights.

So, yes, Israel may well be breaking international law through its denial of humanitarian aid and a corridor for civilians amid complete siege on local structures. But from whence comes any credible global authority to hold it to account?

Israel has long disagreed that the Fourth Geneva Convention is of relevance to its relationship with the West Bank and the Gaza Strip. This is also a major reason for contention around the term “Occupied Territories”, as it is used by many internationally for the West Bank and Gaza Strip. In the Geneva Conventions, the term “occupied territory” compels a significant amount of responsibility and restraint on the part of the occupying power, whereas Israel views itself as having a sovereign claim on these territories. To Israel and its allies, it is not an occupier.

This is important to the Geneva clause involving settlement, which reads: “The Occupying Power shall not deport or transfer parts of its own population into the territory it occupies.” If Israel is an occupying power, then its expansion of Jewish settlements into West Bank territories, and displacement through demolition of Palestinian homes in the vicinity, is in clear violation of the Geneva Conventions, as many world bodies contend that it is. But if Israel is a sovereign power over those lands, as Israeli representatives have argued, then it is simply enacting its sovereign rights over Judea and Samaria (Israeli terms for the West Bank).

International scholars disagree that the point of the Geneva Conventions is to defend sovereign rights, so much as to protect civilian rights for humans in all geopolitical arrangements. But Israel initially refused to sign the Rome Statute for the International Criminal Court on similar grounds: because Arab nations had asked for language that resembles the aforementioned line about deportation or transfer of populations. Calling settlement a “crime of transfer” made clear to Israel that participating in the ICC would be to its disadvantage. Israel also disagreed with the exclusion of certain crimes from the ICC mandate (airplane hijacking, biochemical warfare), and generally viewed the organization as developing too many notions of international law based on “trade-offs” between negotiating member states.

Israel only signed at the last minute on December 31, 2000, due to an escape clause in a 7-4 vote against joining that would commit the country only if the US did as well. Former President Bill Clinton signed earlier that day, so Israel followed suit.

However, Israel did not ratify that act, so in 2021, when the ICC announced that it would open a war crimes investigation in Gaza and the West Bank after a five-year preliminary investigation, Netanyahu told the ICC that Israel did not recognize its authority, and would not be party to its actions. The US spoke out against the ICC for pursuing this investigation into Israel as well.

The ICC was going forward with this case because the PA had signed its Statute in 2015, and recognized the Court’s jurisdiction for all events from June 13, 2014 forward. A month after that date, conflict in the Gaza Strip saw 67 Israeli soldiers and six civilians killed, along with 2,251 Palestinians, including 1,462 civilians. Actions committed by IDF soldiers then, along with subsequent clashes and Israeli settlements, would all be under the purview of intended ICC proceedings.

When the PA first signed the Rome Statute, Israel warned the West Bank Palestinian authority that any attempt to bring claims against Israel to the ICC would be considered a hostile act, and met with the withholding of tax revenue and similar financial support administered by Israel. According to Israel, the PA would also be in violation of the Oslo Accords, which has its own dispute mechanism.

This is a complicated claim for two reasons: 1) the Oslo processes were a temporary affair, with an implied endpoint even though the fragility of transitional government had protracted its termination; and 2) peace and conflict scholars have noted that Israeli actions could already be seen as in violation of the Oslo Accords, rendering its power for dispute resolution practically null.

Either way, the whole situation outlines a serious challenge:

Israel has consistently distrusted any international laws or enforcement bodies that view Israel as an occupying territory in the West Bank and Gaza, and seek to investigate its actions toward Palestinians in that light.

Conversely, much of the international community does see Israel as an occupying territory in West Bank and Gaza, and wants its actions investigated as such.

How can we ever hope to develop and apply international law justly among sovereign states that disagree over such fundamental premises?

Regional histories of collective punishment

This legal question also turns on the issue of sovereign rights versus human rights across geopolitical contexts. Whom should international documents first serve?

Here too, though, Israel is far from the only country to put sovereignty first.

Collective punishment began in the region, for instance, long before Israel was a modern state. The British rulers of Mandatory Palestine literally had laws on the books, across colonial holdings, like “The Collective Responsibility for Crime Ordinance of 1921”, the “Prevention of Crime (Tribal and Village Areas) Ordinance of 1924”, and the “Collective Punishments Ordinance” of 1926. These and similar British documents attest to a culture of colonial pacification that routinely ignored individual rights in service to collective order.

The second of these documents also highlights a mentality that persists in the world today, and which has most certainly come out in discussions about Israelis and Palestinians. In that 1924 ordinance, British authorities describe a class of people called a “criminal tribe”:

If the Local Government has reason to believe that any tribe, gang or class of persons, or any part of a tribe, gang or class, is addicted to the systematic commission of nonbailable offences, it may, by notification in the local official Gazette, declare that such tribe, gang or class or, as the case may be, that such part of the tribe, gang or class is a criminal tribe for the purposes of this Act.

Article 3, “Prevention of Crime (Tribal and Village Areas) Ordinance of 1924”

This goes far beyond the notion of collective punishment, to reflect a culture of collective and intrinsic culpability, simply by virtue of your demographic identity.

In Mandatory Palestine, acts of collective punishment included the destruction of civilian homes in retaliation for unrest. In its “Defence (Emergency) Regulations” of 1945, the British established Regulation 119, which reads,

(1) A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land. Where any house, structure or land has been forfeited by order of a Military Commander as above, the High Commissioner may at any time by order remit the forfeiture in whole or in part and thereupon, to the extent of such remission, the ownership of the house, structure or land and all interests or easements in or over the house, structure or land, shall revest in the persons who would have been entitled to the same if the order of forfeiture had not been made and all charges on the house, structure or land shall revive for the benefit of the persons who would have been entitled thereto if the order or forfeiture had not been made.

(2) Members of His Majesty’s forces or the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (1), after eviction without compensation of the previous occupiers if any.

The Defence (Emergency) Regulations, 1945

This British regulation served as the legal basis for the state of Israel, from 1948 on, to continue using home demolition as punishment and supposed deterrent. In recent decades, Israel has received international criticism and outright condemnation for its use of home demolition, which often happens in lockstep with settlement expansions. As per a report in 2020 by the UN’s Special Rapporteur Michael Lynk,

This year alone, Israel has approved or advanced more than 12,150 settlement homes, making it the single highest rates on record and since 2012, when such figures started to be recorded by Peace Now. More than 5000 of these housing units were approved in mid-October alone. Settlements and settlement construction are illegal under international law and they are one of the major obstacles to peace. Concurrently, demolitions of Palestinian-owned structures has increased significantly over the past year. In 2020 alone, more than 560 structures were destroyed leading to the displacement of 747 Palestinians. The Special Rapporteur stresses that, while it was important to counter the Israeli formal annexation plans, it was also imperative counter all measures on the ground that amount to de facto annexation, which Israel advances in the plain sight of the international community, and which lead to serious breaches of the human rights of Palestinians on a daily basis.

“Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967” (Advance Unedited Edition), Michael Lynk, October 2020

But therein lies a complicating factor. Israel is not monolith, and although Israelis have been acculturated to the use of home demolitions as a normative criminal penalty at a rate not seen in many other modern states, they are not all in agreement with the practice. Neither are their courts, which caused part of this year’s major stand-off between PM Netanyahu and a judicial branch he has long considered to be encroaching on his legislative agenda.

Back in 2020, the Israeli Supreme Court ruled against a home demolition that had been planned as retaliation for Nazmi Abu Bakr dropping a block from his third-floor apartment during a predawn clash in the West Bank, killing an IDF soldier. The military wanted to demolish the household for his action. The court deemed this a disproportionate response unfair to the sleeping wife and eight children. Netanyahu did not like this verdict and called for the court to reopen the case immediately.

This is part of what war diminishes, for both sides of any given encounter. Israel, especially through democratic protest earlier this year, has been in an internal battle for the character of its country. Now all those efforts at democratic reform, all those struggles between a right-wing expansionist party and dissenters in other government branches and parties, as on the civic streets, have been collapsed by brutal attack into a more or less united front against external assault.

Israel cannot be the full democracy that many of its citizens sorely want, while also addressing the latest atrocities visited upon it, with all the world watching. And all the world’s surrounding democracies, for all their elaborate international mechanisms, are still deeply ill-equipped to fill the inevitable humanitarian gap in Gaza that this crisis of compounding traumas has created.

Fundamental attribution error, writ large

As in the immediate aftermath of other major political traumas, we are in no mood as a species to entertain nuance after October 7, and very quick to take our usual cognitive biases to the next level. Horrific rumors will arise as a matter of course, and they will intensify our hostility toward whole groups of people, for the crimes committed by some among them. We will rationalize some civilian deaths as less important than others, and be quicker to decry atrocity when it happens in certain directions. To some extent, it will always be our “tribe”, over theirs.

In the process, we will forget that people who live in states that sanction the death penalty, or a stand-your-ground defense, or collective punishment are more likely to be in favor of violent countermeasures: not because they are intrinsically violent people, but because our sense of right and wrong is shaped by context. If you live in an oppressive state with no clear alternatives to the terrorists in charge, with your only exposure to outsiders coming from raids and bombs, what other option is there but to support the people firing back?

And we will forget, in the middle of all our grand ideas about a universal body of humanitarian law that no decent state could possibly question, that right now a state responding to heinous attack on its citizens does dissent from international law. Does disagree with international bodies attempting to adjudicate past trespass.

It’s all too easy to believe in “just world” solutions to questions of sovereignty and individual rights, ethnic and geopolitical destiny, that are right now being answered in the blood of civilians. Whoever prevails here will prevail because they were more deserving, right? And whoever falls will have had it coming, no?

But the real answer was written well over 2,500 years ago, by someone who saw such cycles of violence among differently righteous men in their own ancient past:

In these days there is no king.

Everyone will do that which is right in their own eyes.