A fake law of war will hurt Israel now and America in the future

According to the first sentence of the U.S. Army’s 2019 People Strategy, “winning matters.” 

Indeed, winning matters most. A nation that wages war with little or no regard for satisfying its casus belli — or reason for going to war — is a country cruelly engaged in the pointless destruction of human life.

But to win, nations — including the United States — must be free to avail themselves of all lawful means of waging and winning war. This makes it all the more bewildering that, when considering Israel’s fight against Hamas, some in the international law community seem determined to distort the law of armed conflict in a way that needlessly binds combatants’ hands and jeopardizes Israel’s chance at decisive victory.

Such distortions may be grounded in noble intentions. But if left unchallenged, this fake body of international law will not only condemn Israel to living under constant threat, it will seriously impair the ability of the U.S. to not just fight, but win future wars. 

Consider, for example, the notion of “collective punishment” — a refrain employed to describe Israel’s siege of Gaza by the likes of Human Rights Watch, Amnesty International and more recently, the United Nations. Collective punishment is a war crime. 

Yet Israel’s actions come nowhere near “punishment” as it is ordinarily understood. Israel is not engaging in retribution for its own sake; it’s not seeking to inflict human suffering merely to satiate a sense of justice or revenge. It is capitalizing on the real military advantages of a siege, a method of warfare that has long been recognized as legitimate under international law. The United States’s own law of war manual allows it — even if the siege results in the incidental starvation of civilians. Siege warfare was instrumental in the American Civil War, leading directly to Confederate surrender along the Mississippi River, including at Vicksburg and Port Hudson.

Then there is the so-called “forcible transfer of civilians.” According to UN spokesperson Ravina Shamdasani, Israel’s order to civilians in northern Gaza to evacuate, coupled with its siege, may amount to “a forcible transfer of civilians in breach of international law.” She continued, “Those who managed to comply with the Israeli authorities’ order to evacuate are now trapped in the south of the Gaza Strip, with scant shelter, fast-depleting food supplies, little or no access to clean water, sanitation, medicine and other basic needs.” 

This argument stretches the law to its breaking point. Forcible transfers are generally prohibited, but integral to all “forcible” transfers is — well, force. Unlike Hamas, the Israeli military has not gone door-to-door and removed civilians from their homes using or threatening to use force. Moreover, Israel’s “orders” are literally unenforceable in Gaza. Instead, they are tantamount to a warning of an impending attack, a practice which the International Committee of the Red Cross says reflects “a long-standing rule of customary international law” and which is enshrined in both the Hague Regulations and Article 57(2)(c) of Additional Protocol I.

Quite the opposite of a “forcible transfer,” Israel’s warnings are an effort to remove civilians from the vicinity of military objectives — something U.S. policy not only permits, but actually describes as “appropriate” and “advisable” in some cases. Similar warnings were given by the U.S. and its allies to civilians in the Korean War, in the conflict in the former Yugoslavia, in Afghanistan and in Iraq — much to the international community’s acclaim.

But where are residents of northern Gaza to go? Where will they stay? How will their basic human needs be met? These questions are important, but they are ultimately an exercise in goalpost-shifting. Israel is not legally bound to provide for the human needs of those fleeing the battlefield. This is particularly true if, as mounting evidence shows, such humanitarian assistance is at risk of ending up in the hands of Hamas militants.

Other examples abound. The Israeli military has been lambasted, for example, for using white phosphorus — an incendiary weapon that, according to Human Rights Watch, “violates the international humanitarian law prohibition on putting civilians at unnecessary risk.” But white phosphorus is not prohibited under the law of armed conflict. U.S. policy explicitly states white phosphorus “may be used as an antipersonnel weapon” as long as such use complies with “the general rules for the conduct of hostilities, including the principles of discrimination and proportionality,” and “feasible precautions” are taken “to reduce the risk of harm to civilians.” In fact, white phosphorus was credited as “an effective and versatile munition” in the Second Battle of Fallujah, and has been used by the U.S. in Iraq as recently as 2017.

Indeed, Israel’s critics have put forth an extreme position — one as much at odds with common sense as the law. Israel suffered an armed attack by the de facto governing body of the Gaza Strip. It is entitled to exercise its inherent right to self-defense under Article 51 of the UN Charter and use every lawful means at its disposal to effectuate that right. Most importantly, however, it is allowed to succeed in exercising that right.

For its own interests, the United States must preserve today the legal means necessary to secure victory on whatever battlefield it may be forced to fight tomorrow. At this hour in history, that means protecting Israel’s power to do the same.  

Thomas Wheatley is an assistant professor in the Department of Law at the U.S. Military Academy at West Point. The views expressed herein belong solely to the author and do not necessarily reflect the views of the United States Military Academy, the United States Army or the Department of Defense.