By Paul M
Not long ago, I finished reading Michael Walzer’s “Just and Unjust Wars.” It’s a remarkable book. Entirely about an abstract, academic and for most people, unfamiliar, subject, he lays it out so simply that the rest of us will have little trouble following his argument. And an argument (as its subtitle says) is what it is; not a rulebook but his dissection of the morality that the laws are trying to codify.
Walzer, a professor (emeritus) at Princeton, wrote the book in 1977 and has revised it repeatedly as modern war has continued to evolve. I think my 5th edition, published in 2015, is still the most recent. That puts it between the Second Gulf War and the US-led assault against ISIS in Syria and Iraq, with updates having mainly to do with asymmetric warfare—still pretty current but, I think, missing the latest developments.
Reading the book, one of the things that impressed me was its completeness. It seemed to cover the application of morality to warfare from every angle and to offer at least theoretically appropriate answers to every problem. But in the time since, I’ve come to think that it has at least one void: It says nothing about what we’re supposed to do now that the laws of war themselves have become one of its asymmetric weapons. It doesn’t even consider the problem and I’ve seen nothing by either Walzer or any of the other just-war theorists about that anywhere else. Perhaps they kick it around in private, over a pint; I hope they do.
A long time ago, I was struck by the not very original idea that the mere fact of formalizing the rules of a game, all by itself, changes the game. Instead of just trying to put the ball in the net as many times as possible, teams can opt to run the clock out, try to trip their opponents into a foul, commit tactical fouls themselves, disrupt the game by calling foul disingenuously—the creative misuses are endless. There’s a name for this: We talk about gaming the system. Walzer traces the concept of morality in war back at least as far as Ancient Greece, but the laws of war are new, really only about 150 years old, and the existence of laws has changed the game.
As anybody paying attention knows, this isn’t just a minor issue and certainly not a theoretical one. Weaponizing law has become part of warfare; Iran, Hamas and their western groupies have shown that it can even be the crucial part.
Israeli military, like the rest of the West’s, operates by an official code of conduct, written down, taught to its fighters, overseen by a corps of lawyers and (sometimes) enforced with consequences. Like the USA and other western countries, but probably more than most, the IDF’s code doesn’t just meet the demands of international humanitarian law, it goes well beyond it—so that even though after October 7 Israel took the gloves off compared to past rounds, it’s still fighting within the bounds of the law.
It makes no difference; it’s the accusation that matters, not the crime (or lack of it). From Hamas’s imaginary casualty counts, to Al-Jazeera’s, BBC-Arabic’s and so many others’ activist “reporters,” to Columbia & Harvard’s morally-stunted inmates chanting “Genocide!” until the word comes, golem-like, to life, Israel is painted as the criminal, not the abused. The same game is played at the level of statecraft, with demonization at organs like the UN, the ICJ and the ICC. Many of the people hearing the shrieks of “Genocide!”, “Ethnic cleansing!” and “Disproportionality!” these past 20 months have forgotten that exactly the same accusations were made during every previous flare-up, when Israel was patently reining itself in much more tightly. Many of them couldn’t care less that all these words have definitions that matter, or would if justice was really the concern.
What do you do when you fight an enemy whose rules are rape and slaughter, who thinks laws are for chumps, but is happy to use them against you if you’re stupid enough to let him? An enemy against whom legal sanctions are meaningless? It’s one thing to let humanitarian law be weaponized against a small, scapegoat country but we should all be afraid of this other form of asymmetric warfare. All the tactics of lawfare and propaganda that are being tested against Israel work on any liberal democracy—and only on them—and they will one day be flung at America and Europe. It would be better if we faced reality and preempted the attacks.
It seems to me there’s only one thing you can do: Take the weapon away. States that care about rules-based warfare must, oddly, abandon the laws—or rather the international court system. They must state, preferably en bloc, that they will neither subject themselves to The Hague’s jurisdiction nor arrest anyone else on its behalf. They must do more: First, they must make the case that in refusing the courts’ authority they’re not abandoning just-war theory or its practice, but rescuing it. That they will continue to base their military doctrines on its requirements and make their standards public. Second, they must show that, while refusing to let enemies hold a legal knife to their throats, they can hold themselves to the standards they themselves have set. Then they will be in a position, thirdly, to hold their enemies to those standards too, where opportunity arises (which usually means after the war is won). One more thing: They must speak out when serial human-rights abusers bleat cynically about war crimes.
There is no doubt that Israel can fight within humane rules. There’s no doubt that the US and the other western nations can too. No doubt, either, that our enemies will go on screaming “genocide” and “disproportionate” and all the other grubby clichés, but losing the threat of detention, show trial and punishment by politically-motivated courts—or well-meaning but myopic ones—will spike that gun, or at least dampen its powder.
Of course, when someone says “must” in an opinion piece, the word doesn’t really mean anything. It’s quite possible for things to just go on as they are. More-powerful countries and countries with more friends will ignore the courts and refuse to hand each other’s people over to them, just as the tyrannies do. Only the Jews among the nations—not just Israel but all small and easily-sacrificed states—will have anything to fear. That works too, for a while, but it breeds cynicism, one of the more corrosive sentiments a democracy can harbor. It will ultimately gut international humanitarian law anyway and speed the loss of belief in our own values to boot. We can do better, and it would be better to do it before the crosshairs are on us.
