Gaza, Ukraine, and the Limits of International Law (Paul W. Kahn)

Note: This essay originally appeared in AlJazeera America’s “Opinion” section.

Since World War II, the primary ambition of international humanitarian law — the law of armed conflict — has been to insulate military violence from the civilian population. Military forces are required to identify themselves as such, by wearing clearly marked uniforms, and to discriminate in their selection of targets: They cannot deliberately attack noncombatants or infrastructure that has no military use. Even with respect to legitimate targets, the attacker must exercise proportionality: Any collateral damage to noncombatants must be proportional to the military value of the target. Because this is “the law,” it is easy for observers — not to speak of partisans — to express their shock when noncombatants, including children, die. We find quick recourse to the discourse of “war crimes.” We hear demands for tribunals, as if the legality of these situations can be separated from their politics.

Recent events in Gaza and the Ukraine remind us of what actually happens when politics turns violent: Noncombatants are injured and killed. The laws of warfare have never worked very well. Violence is never exact and tends to get out of hand; mistakes are made and vengeance is sought. Collateral damage can be horrendous, even within the boundaries of law. Even when care is exercised, a mistaken identification can mean hospitals, homes, vehicles or even airplanes are hit. Ironically, the more exact violence becomes, the less effective it may prove to be. Causing a lot of property damage is not going to resolve any deep conflict.

For humanitarian law even to begin to take hold, forces must be organized and disciplined. Some state forces have such organizational capacities. Some even send lawyers along to combat. But we make a mistake if we think the reach of humanitarian law is limited only by access to the means of organization.  Recent events show us much more fundamental limits: There are problems concerning who can be regulated by law and how much regulation we can expect.

One thing that the Palestinians in Gaza share with the secessionists in eastern Ukraine is rockets. Neither group, however, seems to have much of a capacity to control them: In the Palestinian case, the rockets are too primitive to discriminate in their targets; in Ukraine, the secessionists lack technical skills commensurate with the sophistication of their rockets. Lack of sophisticated weapons and lack of technical sophistication are both characteristic of non-state actors. The law of discrimination and of proportionality makes demands that they cannot meet.

Measured against the laws of war, virtually the entire military arm of Hamas would be illegal. Hamas has a vast inventory of rockets incapable of discriminating between combatants and noncombatants. Its military operatives do not bear their arms openly and they do not identify themselves in order clearly to distinguish themselves from noncombatants. If they were to comply with the law, they would have no means of effectively deploying violence against the vastly superior Israeli forces. The rules of warfare were obviously not written with an eye to violent conflict between state and nonstate forces. They were, for that reason, never effective in controlling the violence of decolonization.

The asymmetry in forces, both in size and sophistication, makes it impossible to impose symmetrical legal obligations. Israel can claim that it is complying with the laws of combat, but few outside of Israel accept that as an excuse when the death and injury rates are so out of proportion on the two sides. In situations of extreme asymmetry, a new measure of proportionality enters the ethical calculus: a proportionality of overall injury. The indiscriminate character of the Palestinian rockets is, on this view, not a measure of their illegality, but a measure of their potential effectiveness in inflicting a proportionate injury. The Palestinians hope that the rockets may even the score.

Asymmetry leads to one sort of failure of law; symmetry in ultimate concerns leads to another. Humanitarian law has never been capable of dealing with conflicts over national survival. One visible demonstration of this is the maintenance of nuclear weapons. These weapons cannot discriminate and are completely disproportionate to any ordinary political end. They are for that reason “illegal,” but that judgment completely misses their political point of announcing the ultimate value of national existence — a value so great as to threaten the very continuation of life on earth.

Nuclear weapons are not the only measure of a politics of ultimate values. Whenever a community is willing to sacrifice rather than surrender, matters of ultimate value are at stake. When only one side has such an ultimate investment in a conflict, it will inevitably win. Thus, anticolonial forces always won their wars of liberation. Whenever violence is read as sacrifice, deploying more violence cannot force a political solution. Sacrifice is not measured as a cost, but as a vindication of the underlying values. Martyrs create more martyrs.

This is why there is no possible solution to the Israeli-Palestinian conflict through violence — short of apocalyptic violence on one side or the other. Both sides see an ultimate value at stake. Situations of reciprocal, violent sacrifice cannot be managed by recourse to law, but only by a balance of terror. Thus, the Israelis purport to fight within the law but know that their most effective weapon is “collateral damage.” The Palestinians, on the other hand, try to bring a reciprocal threat of violence directly to the Israeli population. Neither side, however, can allow that balance to get completely out of control, without risking everything.

This week’s violence teaches us again that law does not create the conditions for political order but follows upon a political settlement. Before we can have law, we must have a community of common concern. Oddly, this is true even of the law of war: It was designed to regulate conflicts between nations already committed to living together in the long run. Without that common commitment, the balance of threat is the only ground of moderation. The Israelis and the Palestinians have been living this reality of politics beyond law for several generations. They have become adept at managing the violence, for neither side has any reasonable plan for settling the dispute politically.

Just as law cannot create a community among people who view each other as enemies, it cannot hold together a community once the bonds of political friendship fail. When communities pursue a violent course of secession, their disputes are not settled by law or even within the law. Indeed, secession marks the failure of law. The law cannot tell us which people should be states or where to draw the boundaries between states. The coming together and the coming apart of states demand more than law can offer. When such a conflict turns violent, as it has in the Ukraine, we must hope that we can trust the judgment of politicians, for the law has nothing useful to say.