Israel's Rewriting of the Law of War
Friday, December 22, 2023
With the Israeli government recently stating that, according to its own calculations, over 65% of deaths from Israeli military operations in Gaza were civilians, time and investigations will tell whether any of that military conduct violated the Geneva Conventions. Another question, however, demands critical attention as well: Whether Israel is promoting an interpretation of international humanitarian law that undermines the Conventions’ values and subverts their rules. That might explain some of the outcomes we are seeing on the ground.
Despite couching its explanations in humanitarian law’s language of proportionality and minimization of harm, Israel has asserted a theory of justifiable conduct in war that, contrary to this body of law, elevates claims of military necessity in achieving the war’s aims over protection of civilians, particularly in a just war. The theory harks back to the influential nineteenth-century intellectual and military theorist Francis Lieber, who advanced it around the very time the first Geneva Convention was being developed. It is important to look back at that long-rejected concept of legitimate warfare and to closely trace what Israeli officials have propounded in the current conflict.