ISRAEL’S RIGHT TO DEFEND ITSELF: The 3 laws of a just war
“Doesn’t Israel have the right to defend itself!” (Note the exclamation mark at the end and not a question mark)
This statement – very seldom a question – seems the be the agreed response whenever the plight of Palestinians is mentioned in public. I have personally been confronted with this statement at every single meeting where I spoke on the current situation in Gaza and the perceived excessive force used by the Israeli Defence Force. But, even though the question is a legitimate statement/ question coming from well-meaning believers, as with most things in life it is sometimes more important to ask the right question than it is to obtain the right answer.
Many Christians with firm convictions on this question, who believe in truth as a clear-cut answer to all life-events, are good people acting in good faith. However, most of our thinking is often, for various reasons, warped by motivated reasoning and confirmation bias, and this leads us to replace complexity with simplicity. This is just human nature. The answer is not that simple though.
The first response to the question, as deceptively simple as it seems and as deeply divisive as the answers are, is an obvious YES! Yes, every nation has the right, and more importantly, the duty, to protect and defend itself and its citizens – especially against the brutality of terrorism! Or so it seems. Simply providing a confirming YES, however, to a complicated subject of this nature, will not only detract from the significance of the issue but will result in significant consequences.
There are several possible answers to this loaded question, each of which rests on different (and highly contested) assumptions. Many who think there is a single, clearly correct answer to the question of whether Israel has a right to self-defence do so simply because the answer fits their prior narratives and worldviews. They find that particular answer (yes it does; no it does not) comfortable and obviously correct, indeed so obviously correct that any opposing argument can, for them, only be made in bad faith.
But a more comprehensive approach is required. Consider for a moment the various narratives that will require a more calculated and informed response than the simple emotional reply from well-meaning people. There are three laws and guidelines that should enable us to ask the right questions instead of demanding a preferred answer. Consider the JUS AD BELLUM (International Law Regulating the Resort to Force) and JUS IN BELLO (International Law regulating Behaviour in war) that provide the political and judicial guidelines to self-defence. Then there is the IHL (the International Humanitarian Law) that provides the ethical and moral guidelines to self-defence. Finaly, and most importantly for Christians, we use the Bible for spiritual guidelines to self-defence.
1. FROM A POLITICAL AND JUDICIAL PERSPECTIVE.
(If, as a Christian, you are not interested in the legal aspects of this questions, then at least skip to the Christian Perspective at the end – but first examine your heart why this is not important to you)
To say the least, this is a minefield open to as many interpretations as confirmation biases exist. It is nevertheless important to consider the global political and judicial restrictions of a nation acting in self-defence
According to JURIST[1], the right to self-defence, in both international and criminal law contexts, refers to the justified use of force to repel an attack or imminent threat against oneself, others, or a legally protected interest. Under international law, the notion of self-defence can be traced in two different institutions i.e., JUS AD BELLUM (international law regulating the resort to force) and JUS IN BELLO (international law regulating behaviour in war). Article 2(4) of the UN Charter strictly prohibits states from using force that threatens the territorial integrity or political independence of any nation, except in cases of individual or collective self-defence as stated in Article 51.
This in itself leaves the situation open for interpretation:
Firstly, as Marko Milanovic, Professor of Public International Law, explains[2]:
So, what if Israel uses force against Hamas in the territory of Gaza? Do Articles 2(4) and 51 even apply? The answer to this question would clearly be YES – but only in one scenario – if Palestine already existed a state, and Gaza was its sovereign territory. The prohibition on the use of force would then apply between Israel and Palestine. Israel would need to rely on Article 51 not to justify using force against Hamas, but to justify using force on Palestine’s territory without Palestine’s consent. In other words, if Palestine was a state, the situation would be exactly the same as with, say, the 2006 war between Israel and Hezbollah in Lebanon, or with frequent Israeli strikes against Hezbollah now on the territory of Lebanon, or against other Iran-affiliated groups in the territory of Syria. In all of these cases Israel has been using force on the territory of other states without their permission, and could only potentially justify doing this on the basis of Article 51.
But, obviously, this raises the question of whether Palestine has achieved statehood. For most of the other states in the world, the answer is yes. For Israel and quite a few other states supporting it, the answer is no, which means the attacks are illegal according to international law and its own admission of not recognising Palestine as a state.
On 23 February 2024 Israeli Prime Minister Benjamin Netanyahu presented a “day after” plan for Gaza, his first official proposal for when the war in the Hamas-run Palestinian territory ends. According to the document, presented to members of Israel’s security cabinet, Israel would maintain security control over all land west of Jordan, including the occupied West Bank and Gaza. There is therefore no legal reason for self-defence and in this regard, legally, Israel does not have the right to self-defence. Hamas as a terrorist group can be hunted down and eliminated but not at the expense of their own people.
The second question, perhaps more important, is the question of proportionality. To what extent is self-defence permissible with what proportions being acceptable? How many Palestinians should die before Israel feels they have effectively defended their borders? Where does Israel draw the line?
The laws of war are intended to protect those who are not participating in hostilities during times of armed conflict. Targeting civilians in a conflict is a war crime. But what if there are civilians in or near a legitimate military target? What if schools and hospitals are used as military compounds and civilians as human shields?
This is where something in the laws of war called “proportionality” comes into play. This law legally allows the targeting of civilians to obtain a military advantage subject to the rule of proportionality.
Rule 14 of the International Humanitarian Law Databases States the following[3]
Launching an attack 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, is prohibited.
Last month, the Israel Defence Forces (IDF) said it believed that it had killed two Palestinian civilians for every Hamas militant, a proportionate ratio an IDF spokesperson described to CNN at that time as “tremendously positive.” The IDF declared that this is unique in terrorist warfare and that they pride themselves in their efforts to limit civilian casualties. The rule of retribution was applied proportionally they argued.
What was not mentioned in the interview however was the homeless, the injured, the traumatised, the fatherless and the families. If “one to two deaths” (i.e. 1 out of every three people killed) is the criteria for “positive warfare” then humanity has stooped to a new level of depravity. If we only value life once it is gone, we don’t value life at all. Let’s consider the following (as on 1 March 2024):
- For every 1 Israeli killed in Israel on 7 October (1,139 in total), 27 Palestinians were killed in Gaza (30,645 in total)
- For every 1 Israeli child killed in Israel on 7 October (30 children), 417 Palestinian children were killed in Gaza (12,500 in total).
- For every 1 Hamas militant killed (8,000 according to the IDF), 240 people were left homeless, literally nowhere to go and nowhere to shelter in a freezing winter without food, electricity and fuel (1,9 million in total)
- For every militant killed, 45 homes were destroyed – together with hopes, dreams and a livelihood (360,000 in total)
- With 45,000 bombs and missiles dropped on Gaza (65,000 tons of explosives which outweigh and is more powerful than three nuclear bombs that the US dropped on the Japanese city of Hiroshima), it took an average of 6 bombs and the destruction of 13 homes to kill one militant
- Every soul that perished, regardless of what side of the wall it happened, is a tragedy beyond words.
But the proportionality is a consideration that needs to be addressed in a way that Christ would have done.
2. FROM A MORAL AND ETHICAL PERSPECTIVE
There is no doubt that morally and ethically Hamas overstepped all boundaries of humanity on 7 October 2023. Hamas had their obvious reasons for the attack, but no excuse can justify the brutality of what happened. The basic laws of humanity, according to the IHL, (as explained in JUST SECURITY[4]) was transgressed by Hamas. Laws like the taking of hostages, torture and rape, using people as human shield and directly targeting civilians. These are all considered and condemned as war crimes.
But, at the same time, it is also deemed war crimes when attacks are disproportionate, when civilians are indiscriminately harmed, when civilian infrastructure is targeted, and civilians are disproportionality injured. One of the key guidelines stipulated by the IHL refers to the collective punishment of a people group. These are equally humanely unacceptable and deemed as war crimes, i.e. not self-defence.
Marko Milanovic, Professor of Public International Law, writes as follows[5]:
So, with respect to the international humanitarian law, Israel was obligated to refrain from using starvation as a tactic against Gaza’s civilians, minimize harm to civilians and civilian infrastructure, and allow the return of displaced individuals post-conflict. However, in contrast, Israel closed all borders and severed essential services like electricity, water, and food supplies, as well as conducting airstrikes on densely populated areas and vital infrastructure. Israel’s armed forces launched air strikes on residential buildings, including apartments in the Rimal neighbourhood in Gaza City; mosques; refugee camps, such as Jabalia Refugee Camp and Nuseirat Refugee Camp); and the UNRWA School in Central Gaza’s al-Maghazi refugee camp.
Milanovic concludes as follows:
Morally, the only way in which Israel can justify its continuing military action in Gaza, with such horrible consequences for its civilian population, is by some kind of ‘lesser evil’ utilitarian calculus: if the lives of innocents it takes now serve the cause of saving more innocent lives in the future. With each passing day, with each dead baby in a Gazan hospital, that justification becomes more difficult to make. I, at least, fail to understand how the Israeli government can today reasonably claim that – speculatively, in the future – it will have saved more innocent lives than it has already taken.
3. FROM A CHRISTIAN PERSPECTIVE
In an article on Church and Culture, James Emery White[6] wrote the following on “When Is War “Just”? (adapted to the war in Gaza)
Thinking, biblical Christians can certainly disagree about Gaza. And do. All lament the loss of tens of thousands of lives, coupled with the millions of displaced refugees, the conflict has produced.
One of the clearest passages related to a Christian’s commitment to peace and peace-making comes from the teaching of Jesus as recorded in the fifth chapter of Matthew. Jesus taught that we should love our neighbours as ourselves. We should not seek personal revenge on someone, or be filled with hatred toward another person. We should even allow ourselves to be disadvantaged rather than retaliate.
From this, many early Christians were pacifists, believing that a Christian should not engage in war of any kind. Some simply took Jesus’ words at face value – you should love your neighbour, but issues related to politics and war were a different matter. They contended that Jesus’ teaching was about personal relationships, but that when it came to corporate or national issues, other verses and factors came into play.
By the second century, many Christians were serving in the Roman army, some as high-ranking officers. When the Roman Emperor Constantine became a Christian, making Christianity an acceptable, even favoured, religion in the Roman Empire, even more Christians entered into public service.
Suddenly, Christians found themselves in positions where they were responsible for the welfare of everyone in the Roman Empire. When Barbarian tribes began to attack Roman citizens, Christians had to decide how best to respond – not only as Christians, but as Christians responsible for the welfare of non-Christians, too.
The church father Augustine (354-430) was the first to provide clear, biblical guidance for Christians in this matter. His ideas were refined over the centuries through such leading thinkers and figures as Thomas Aquinas and John Calvin, but Augustine’s central ideas have stood the test of time, and continue to inform Christian thinking to this day.
Those ideas have become known as the just war theory.
Can War Be Just?
The just war theory has to do with how Christians interact with government (the reality of the need for governance and being governed) and international relations. In essence it takes the great commandment of Jesus in relation to peace, which is to love your neighbour as yourself, and applies it to the responsibilities of government.
While owning the fact that Jesus taught that it would be wrong for an individual Christian to defend himself or herself against attack, based on such passages as Matthew 5 (in other words, there is no private right to kill), they said that it was the duty – and responsibility – of Christians who had public responsibility (a magistrate, a soldier, a police officer, a king or president) to use discriminate and proportionate force to defend and protect their fellow human beings.
In essence, the passage in Matthew was seen as addressed to the scribes and Pharisees who had taken the legitimate rule of retribution that was given to governing authorities, and made it active and legitimate on a personal level. They had taken it from the law courts, where it belonged, into the personal realm, where it did not.
From this, Christians developed the just war theory to allow for the personal peace that Jesus admonished us to live by, as well as the civic responsibilities we’ve been charged to keep. We are not to take the law into our own hands, but that does not mean that the law cannot be taken up. Indeed, law must be established. To love our neighbour personally, and to love our neighbour corporately, sometimes can involve the use of force, police action, courts, punishments, prisons, and even war.
From this, the conditions for a just war were spelt out.
Now that is a very quick journey into the rationale of a just war. There’s much more that could be stated, such as the Bible’s mandate to live at peace with others as much as it depends on you, intimating that someone could make it impossible for you to live at peace with them by their actions.
There are also the great heroes of the Bible who were warriors, who had been commanded to go to war by God; people such as Joshua, David, Samson, Deborah and Gideon.
Going further, when you study the life of Jesus, you notice that He never called a soldier who came to Him in faith out of his military duties. Never once did Jesus say to a Roman Centurion, “Leave the Army!” And in His own life, He was known to use force such as when clearing the temple.
As a result, the idea of a just war has been with Christian thinking from the beginning. But it has been very carefully spelled out. So here are those historic conditions:
- There must be an urgent and imminent threat.
- It must be an act of defence against aggression – never simply for conquest or as an act of aggression – only a defensive war is defensible.
- It must be ordered by one who is in authority to do so.
- It must be for redemptive justice and not retributive justice.
- It must have the right intention – it should not be based on revenge, but as an act of neighbour love and protection, with peace as its goal.
- It should be the last resort; peace and resolution should have been attempted.
- The force used must be proportionate to the desired ends – meaning that the evils caused by the war are less than the evils to be righted.
- It must seek to minimize non-combatant (civilian) casualties.
- It must have a reasonable chance of success.
When this is carried out by those in civic authority, it could be considered just and should be supported.
So the question is not whether Israel has the right to self-defence– they have. The question is whether we can reconcile the current excess of force with Biblical guidelines, international laws and basic morality – we can’t.
Again, thinking Christians might disagree. But we should do so within the parameters of what constitutes a just war, as opposed to emotion, nationalism, or the attempt to save face.
Because doing what is just is all that matters.
[1] https://www.jurist.org/commentary/2023/12/7-10-the-question-of-israels-right-to-self-defense-under-international-law/
[2] https://www.ejiltalk.org/does-israel-have-the-right-to-defend-itself/
[3] https://ihl-databases.icrc.org/en/customary-ihl/v1/rule14
[4] https://www.justsecurity.org/89489/expert-guidance-law-of-armed-conflict-in-the-israel-hamas-war/
[5] https://www.ejiltalk.org/does-israel-have-the-right-to-defend-itself/
[6] https://www.churchandculture.org/blog/2013/9/9/when-is-war-just