Thoughts from “Gaza Under Siege”: Trying to Govern Warfare
January 15, 2009
My attempts not to talk about Gaza have now failed utterly: I spent two and a half hours listening to what was billed as a Gaza “teach-in” last night — it helped that I was already at the building it was being held in and it is COLD outside and I seem to have lost my earmuffs. The following is not much in response to anything that was actually said, but things that were provoked while sitting there with a notebook. The italicized my initial thoughts, the rest my commentary on those thoughts:
Have we made it so that the act of war inevitably violates the laws of war?
Some actual violation of the laws of war (ignoring for the moment any requisite intent) seems inevitable when one pauses to think about it. The matter of intentional violation is another question — I’m tempted to say that as a conflict extends through time, the likelihood of this being true approaches one. Asymmetrical warfare of the sort which seemingly must happen in the response of a powerful state to a (stateless or intrastate) terror group seems only to intensify the matter, as do modern weaponry and high population density (the latter will, by all projections have to continue growing until near the end of the century with our global population). Gaza, mixing all three with an especially large dose of the last, enables the situation to be magnified under a microscope lens.
In which case, would it be better to abide by a “code” of war?
I’m thinking here of a customary, rather than legal, system — how the Greeks once assumed that war is to be fought in pitched hoplite battles on a single day. In essence, to abandon international law governing war and let prescription and extra-legal moral considerations rule.
But that almost certainly relies too much on a shame/honor system.
Which is to say, it suffers from similar arguments as those against unilateral nuclear disarmament, though I feel they’re stronger, pragmatically, against this thought-experiment of mine. (Take that as you will.) Or, to put it yet a third way, when shame and honor are insufficient to enforce said “code,” God alone is left as enforcer of justice — and the objections, practical and theoretical, seem fairly easy to anticipate (at least initially) and harder to dismiss.
I was going to make the case that Israel, and to a lesser but still real extent, the United States, operate to a large extent within this system rather than the legal one: International reputation and moral righteousness are more likely to influence Israeli decision-making than fear that any of its leaders (political or military) will actually be arrested and tried for war crimes. (Indictments, since the only punishment they involve is restriction of international movement, fall under “international reputation.”) Similarly, there is no real risk of American leaders being prosecuted for violations of international law; however, the national legal framework makes it possible for prosecutions of violating American legal standards of war (which may be synonymous with the international). Then I saw this, and it seemed like they were undermining my examples before I could state them. (I should point out that Israeli officials deny Israeli-fired shells hit the building; it is plausible that Hamas would shell a U.N. building and say it was Israel; truth will likely have to wait until the dust clears.) The lack of Western reporters in Gaza also demonstrates the extent to which Israel is not acting within a shame/honor framework of warfare; though I still hold they’re working with some contingent, amorphous blend of legal and shame/honor.
Of course, if international law governing war has been made irrelevant by the inevitability of its violations (This is war as every astute observer since Thucydides has noticed it, I found myself thinking tonight, except compounded by modern weaponry and the density of the Gaza Strip) — if we have made war itself an illegal act, even if only indirectly; ignoring entirely that it may well be unavoidable in the course of human events — it has to be replaced with something. The question (if the previous one is answered in the affirmative) is whether the flaw lies in the nature of those laws or in the concept of governing war via an international legal framework itself — whether a legal, rights-based manner of governing war is itself insufficient to the task.
So the procedure would then be:
- Establish whether current framework governing laws of war is impractical/irrelevant/insufficient to the task.
- If it is such, determine whether the underlying problem lie in the framework itself or implementation of said framework.
- This answered, begin looking for a solution to the situation, never failing to consider the answer(s) to (2).
Now I suppose I ought to answer: what do I believe the answer to that first question of mine really is? I’m going to cop out and go with, “Maybe.” I can’t eliminate the possibility — its newness to my mind makes it tempting for excitement’s sake — but I’m no expert on international law regarding war. However, I think we’re going to be faced with this question with an increasing frequency in future years, and it is one we’d do well to think about sooner rather than later. If for no other reason than ease of solution, I’d rather the problem be with the type of law rather than the legal framework itself: while the Iliad offers important commentary on war we’d be remiss to ignore, Thucydidean warfare strikes me as closer to real human experience than Homeric — shame/honor barely works in an idealized setting where the gods are active participants in the war, let alone in something we would call more “realistic.” (But, as before, excitement entices me otherwise.)