Thursday, May 27, 2021

Does Netanyahu Realize that Both Conquest and Deterrence are Unlawful?

 by Michael C. Dorf

Last week, before a ceasefire was reached between Israel and Hamas, Prime Minister Benjamin Netanyahu offered the following explanation for Israeli military policy with respect to Gaza:

"You can either conquer them — and that’s always an open possibility — or you can deter them. We are engaged right now in forceful deterrence, but I have to say, we are not ruling out anything." 

Much of the critical public reaction to that statement understandably focused on the conquest option. To "conquer" Hamas would presumably mean not simply that Israeli troops would cross the border into Gaza to engage in a ground war for the purpose of degrading the capacity of Hamas to strike Israel with rockets or launch incursions through tunnels, but that Israel would return to the status quo that prevailed prior to the August 2005 Israeli withdrawal and once again occupy Gaza with troops. Indeed, to conquer implies more than merely to occupy, which is, at least in principle, temporary. Conquest of Gaza might include its annexation and absorption into Israel proper, much in the way that Israel regards east Jerusalem as not merely occupied but annexed or that Russia claims to have annexed Crimea.

For most of human history, military conquest was an accepted means by which nation-states expanded their territory. However, since the early twentieth century, international law has rejected conquest. Is there some way to understand Netanyahu's reference to conquest as anything other than as a threat of unlawful force? Maybe just barely. Perhaps Netanyahu was speaking only loosely and using "conquer" as a rough albeit somewhat inaccurate synonym for "invade" and/or "occupy."

Yet if conquer doesn't really mean conquer, what are we to make of Netanyahu's alternative: "deter"? Here too, unpacking what he seems to have meant suggests that the most natural understanding of the proposed course of action--indeed, of the action that was actually undertaken--violates international law.

In the domestic context, we commonly say that the criminal law "deters" (at least some) crime. Holmes's bad man will not hesitate to commit crimes due to any pangs of conscience, but if the law is robustly enforced, he will restrain himself because he fears apprehension and punishment. You deter someone from doing something by threatening to harm him should he do it.

The word "deter" has much the same meaning in the international context. During the Cold War and still today, potentially hostile nations--especially the U.S. and its nuclear-armed adversaries--stockpiled nuclear weapons. Under what came to be known as the doctrine of mutually assured destruction, each side prevented the other from using its nukes by promising to retaliate if hit first. But retaliate how?

The actual use of nuclear weapons would almost surely violate international law. While the exact target lists were officially secret, everyone understood that, given the numbers of weapons, each side included population centers with millions of civilians among its list of retaliatory targets. I would be surprised to learn that population centers are no longer on such lists. If nukes were ever used for such retaliatory strikes, of course, that would be a clear violation of international law, which forbids targeting civilians.

Indeed, even the use of nukes against military targets would very likely violate international law, given that the military targets will be close enough (even hundreds of miles away counts as close enough for a modest to large nuclear explosion) to result in enormous numbers of civilian casualties--thus violating the principle of proportionality. To comply with international law, the otherwise-justified use of force must have legitimate military targets and unintended (but foreseeable) civilian casualties may not be disproportionate. Thus, whether targeted at civilian populations (per se unlawfully) or at military sites (with very likely disproportionate civilian casualties), the actual use of nukes once deterrence fails would violate international law.

That conclusion raises a puzzle with which ethicists, military strategists, and international lawyers struggled during the Cold War and presumably with which they continue to struggle: If the use of nukes is almost certainly unlawful, how can it be lawful even to threaten to use them? 

The conventional answer, somewhat oddly, is that nonetheless the mere having of and threatening to use nukes as retaliation does not violate international humanitarian law, although for many countries possession of nukes may violate other, more specific obligations, like the Non-Proliferation Treaty. Purely on logical grounds, I am dubious of the proposition that it should ever be deemed lawful to threaten an unlawful course of action--even for the purpose of deterring someone else from engaging in unlawful activity.

In any event, the Cold War deterrence analogy can only get Netanyahu so far, because in describing Israeli policy with respect to Hamas as deterrence, he did not mean to deter through the mere threat of force that, like the sword of Damocles, hangs but never drops. Netanyahu made the statement in question at a time when Israel was in fact using force. Was that force unlawful?

In the public discussion of the most recent and prior conflicts between Israel and Hamas, commentators often use language that means something different from the same language in matters of international humanitarian law. Thus, people will point to the lopsided casualty numbers and say that Israel's use of force is "disproportionate." That's not wrong in the colloquial sense, but it's misleading if meant to suggest a violation of international law. There is no international legal obligation that a nation use force in such a way as to render its own civilian casualties equal or comparable in number to the civilian casualties on the other side. Rather, the jus in bello obligation is to refrain from using any force that aims at civilian casualties and, even when aiming at legitimate military targets to refrain from doing so if the unintended but foreseeable civilian casualties would be disproportionate to the military advantage thereby gained.

Israel has defended its targeting practices in the most recent and prior wars with Hamas by arguing: (a) Israel does not target civilians and in fact tries to minimize civilian casualties by providing warnings; (b) the civilian casualty numbers in Gaza, while high, are proportionate to the military value of targeting Hamas's ability to launch attacks on Israeli civilians; and (c) to the extent that civilian casualties in Gaza are as high as they are, that is because Hamas deliberately locates its military infrastructure among the civilian population, effectively converting that population into human shields.

Debate over (c) focuses on a factual question and a normative question. The factual question is whether Hamas in fact is deliberately using the civilian population as human shields. Some commentators argue that given the population density of Gaza, anywhere Hamas based its operations would be in close proximity to civilians. The normative question is whether, even assuming that Hamas is using civilians as human shields--which would be unlawful--that justifies adjusting the proportionality calculus for Israel's targeting.

The answer cannot be that because Hamas is a bad actor, Israel is completely excused from the proportionality requirement. After all, as a general matter, the unlawful conduct of the enemy doesn't necessarily provide a justification or excuse for engaging in otherwise unlawful conduct in response. For example, Hamas clearly and repeatedly violates international law by aiming its rockets at Israel's civilian population. But no one claims that this fact would justify Israel targeting Palestinian civilians in response. The human shield question is a bit different, of course. Israel's defenders do not say that because Hamas uses human shields Israel has license to do whatever it wants; they say that what counts as proportional should be more forgiving of higher numbers of Palestinian civilian casualties based on Hamas's responsibility for putting its own civilian population at risk.

Who's right about that? I don't have a fully worked out view. I think Israel's defenders have a point that the responsibility Hamas bears for locating its fighters and weapons among the civilian population should count for something in figuring out whether Israel's strikes are proportionate. How much they count for and whether that's enough to render the Israeli use of force legal are the real questions. I shall disappoint readers by not attempting to answer them.

Instead, I want to focus again on the second half of Netanyahu's statement. By characterizing Israel's policy as one of deterrence, he appears to be saying that the civilian casualties in Gaza are in fact a strategic goal of Israeli strikes. If so, that would plainly violate international humanitarian law. And crucially, that would be true even if each individual bombing raid aims at a military target and seeks to minimize civilian casualties. To call the overall policy one of deterrence is to say, effectively, Hamas needs to know that launching rockets and other attacks at Israel will have the "unintended" effect of large numbers of civilian casualties and disruption in Gaza as a result of the accumulation of casualties from the individually justified--because militarily targeted and civilian-casualty-minimizing--Israeli airstrikes.

That, to my mind, is oxymoronic. A policy that aims to deter by strategically leveraging expected but not individually intended civilian casualties should be deemed to target civilians.

Is there a way out for Netanyahu? Maybe. Perhaps, just as Netanyahu may have meant "conquer" imprecisely, so he might have meant "deterrence" to refer solely to the impacts on Hamas military leadership, who were in fact targeted in the latest strikes. If so--if the idea is that Israel will forcefully attack military targets in response to Hamas rocket or other attacks--then there would be no violation of the international law against targeting civilians. (There would remain the proportionality question I punted above.) But if that's what Netanyahu meant, he certainly could have expressed the idea more clearly. Taken at face value, he said that for now Israel is engaged in one kind of violation of international law but it might change approach and try another kind of violation.