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Why Geneva Must Apply in Gaza

We are again witnessing what a world without pity looks like. The invasion of Ukraine; Russia’s murder of civilians in Bucha; Hamas killers filming themselves murdering women, children, and retirees in kibbutz gardens; the pulverization of Gaza and mass civilian casualties. We’ve been catapulted backwards into the lawless universe Bruegel painted centuries ago in his Massacre of the Innocents.

When the internationally sanctioned system of rules collapses, the legal and ethical norms that regulate individual conduct begin to founder. Justifications of violence are hurled around, with all the righteousness that goes with identity claims and group loyalty. Mere bystanders rush to judgment in service of their prior political certainties.

Amid this moral storm, we have one piece of wreckage to cling to. The Geneva Conventions still figure prominently on both sides of the propaganda battle over the current conflict in Gaza, suggesting that they still have some vestigial authority. Hamas’s supporters cite these laws of war to justify its actions, and to claim that Israel violates the rules. For its part, Israel insists that it abides by them, because its military lawyers and commanders adhere to principles of proportionality and discretion, and take measures to avoid civilian casualties.

If this is the shred of law that is left in a lawless world, the question is: Why should Israel obey it when its enemies do not?

The four Geneva Conventions, ratified in 1949 after the world’s last excursion into wholesale violence, established a de minimis code that accepted violent combat as a normal instrument in human affairs but sought at least to limit its horror.

The Geneva Conventions are law made for hell, the work of Swiss and European lawyers who’d watched the worst that human beings had done in World War II. Their conventions—especially the fourth, on the protection of civilians—command combatants to observe the principle of distinction, which confines fighting to soldiers and keeps civilians out of it. That means keeping violence proportional to a military objective. And it prohibits starving civilians or depriving them of water; attacking hospitals or civilian medical workers; taking hostages; raping women; expelling populations from conquered territory; destroying homes, churches, synagogues, mosques, and schools without an overriding military purpose. To do any of these things is to commit a war crime.

The conventions evoke an idea as old as the chivalric values of the European Middle Ages, the Bushido code of the Japanese samurai, and the rules of lawful holy war in Islam. Warriors are not supposed to be butchers or brigands. Soldiers are unworthy of their uniform if they violate women, steal from civilians, brutalize prisoners, or use gratuitous violence in the exercise of arms. From the creation of the Red Cross after the Battle of Solferino in 1859 to the Lieber Code governing the conduct of the Union Army in the American Civil War to the Hague Convention of 1907, lawyers working for states on all sides have codified the ideals of a warrior’s honor. That legacy has turned the Geneva Conventions into the most universally ratified body of international law we have.

The conventions give no one an alibi. The Geneva laws clearly distinguish between jus ad bellum (a country’s right to fight in self-defense, for example) and jus in bello (how a country conducts that fighting). The crux of this is that however legitimate self-defense may be, it can never justify barbarism.

A Palestinian may argue that Israel’s unjust blockade of Gaza and previous military actions, which give grounds for armed resistance, also justify the massacre of civilians at a music festival and in their homes and the taking of hostages. An Israeli may argue that Hamas’s atrocities in the October 7 attack justify the flattening of Gaza, despite the inevitable civilian deaths this entails. The Geneva Conventions say both positions are wrong. Nothing justifies the infliction of violence on noncombatants, neither a gruesome massacre in the desert nor the cruel confinement of civilians in Gaza.

When states ratify the conventions, it means, in principle, that superior officers face a charge of command responsibility for war crimes committed pursuant to their orders. The drafters of the law recognized that there are terrorists, insurgents, and irregular forces who don’t wear uniforms and don’t answer to a state or its laws. They were aware that terrorists will place weapons and forces close to civilian facilities such as hospitals in an attempt to exploit the reluctance of law-abiding forces to strike such targets. But the fact that one side games the rules does not relieve the other of the obligation to obey them. The Geneva Conventions are not voided in the absence of reciprocity between combatants.

Which brings us to the nightmare of Gaza. Both Israel and Palestine (an entity with nonmember status in the United Nations that includes the West Bank, Gaza, and East Jerusalem) are ratified parties to the four conventions; as the governing authority in Gaza, Hamas is bound to observe them. For its part, Israel has a legion of lawyers well versed in these rules, and it has always distinguished itself from adversaries by its status as a democracy. Because of that democracy, Israel’s army is politically accountable to its citizens, its military lawyers are accountable to a civilian Supreme Court, and its soldiers are accountable for war crimes in a court of law. Israel’s image as a bastion of democracy in a region of autocracies is intimately linked to its claim that its armed forces obey the conventions.

Under both the UN charter and the Geneva Conventions, Israel has a legitimate ad bellum goal: It was attacked by Hamas, and it has the right to defend itself, including by going into Gaza to prevent the enemy from attacking again. Israel’s difficulties begin with the in bello stipulations of the conventions. Besides discrimination in targeting, the conventions demand proportionality, which requires Israelis to minimize collateral damage to hospitals, schools, and civilian infrastructure. But because Hamas is likely to co-locate its men and matériel near what the conventions call “protected” objects, the conventions do allow Israel to strike civilian targets—but only when there is no other way to achieve a necessary military objective.

Israel has allowed aid convoys into Gaza; it has warned civilians of impending air strikes and urged mass evacuation from combat zones. Despite these gestures of compliance, the watching world can see on their screens, every hour of the day, the flattened streets and houses, the rescue workers and ambulances, the bloodied civilians borne into overcrowded hospitals. What we do not know is the extent and degree to which Israel is successfully targeting Hamas military personnel and assets.

Respecting Geneva goes beyond good intentions and the mere gestures of legal compliance; it means ensuring that the actual results of military action comply with the conventions. Judging those results will depend on how many of the dead will turn out to have been Hamas fighters and how many were noncombatant civilians.

Some Israeli citizens, shocked and wounded to their very core by the October 7 attack, dismiss the law of Geneva as absurd in the face of an enemy whose stated aim is to destroy their state and murder Jews. Responding to its people’s rage, the Israeli government has demanded the resignation of the UN secretary-general after he said that Hamas’s attack “did not happen in a vacuum” and called on Israel to stick to Geneva’s rules despite “the appalling attacks by Hamas.” But that higher standard is what the Israeli government has signed up for, and what its military says it lives by.

For Israel, the war is a battle against a deadly and unprincipled enemy. But it is also a test of its values as a nation. Israel’s physical survival as a state is at stake, but so is its moral identity and its political reputation in the world. It can throw Geneva out the window in its attempt to destroy Hamas, but if it abandons the law, it may do lasting damage to its national ethos and international standing.

Adhering to Geneva is essential if Israel is to achieve its strategic objectives—which are to eliminate Hamas, not the Palestinian people, and to establish security on its borders. Israel’s leaders cannot achieve these objectives through military means alone. At some point, war must be followed by politics. If Israel adheres to the Geneva rules, that will help it attain its long-term political goals. If at least some Palestinians can see restraint in action, that will show them that Israel makes a crucial distinction between Hamas and the population it rules in Gaza.

Israel needs to send this signal, because it will need partners to help it rebuild Gaza after the shooting stops: It will need the Saudis and the Gulf States if it is to have any chance of securing peace on its borders. Not just the crushing of Hamas but the conduct of the war itself will determine what kind of peace is possible.

The law of Geneva is the sole remaining framework of moral universalism in which two peoples can acknowledge that they are both human beings. Holding on to Geneva, despite all the temptations to do otherwise, is a vital element of the politics that could lead, eventually, to peace.

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