Nearly two months into the war in Gaza, the Biden administration finds itself in a bind. International support for Israel, once strong in the aftermath of Hamas’ brutal October 7 attacks, has given way to broad condemnation as Tel Aviv’s campaign has left at least 15,000 Palestinians dead in addition to 30,000 injured and 1.8 million displaced.
The White House’s answer to this anger has been twofold. In public, President Joe Biden and his allies have emphasized the need for Israel to follow international law in its campaign to destroy Hamas but avoided weighing in on whether Israel has already violated the laws of war. In private, officials have urged their Israeli counterparts to “fight more surgically and avoid further mass displacement of Palestinians” after the temporary truce ends, according to the New York Times.
But what does it mean for Israel to conduct a “surgical” war against an enemy embedded in an area roughly the size of Philadelphia with more than two million residents? And what does international law mean to a state whose leaders appear committed to destroying Hamas by any means necessary?
Few thinkers are better equipped to answer these questions than Samuel Moyn, a professor of law and history at Yale University and a non-resident fellow at the Quincy Institute, which publishes RS. Moyn has long grappled with the relationship between war and morality, most notably in his 2021 book “Humane: How the United States Abandoned Peace and Reinvented War.”
RS spoke with Moyn about how U.S. policymakers think about war and what the Gaza conflict means for the future of international law. The conversation has been edited for length and clarity.
RS: U.S. officials have reportedly admonished Israel to be more 'surgical' in its war against Hamas in Gaza. How do you interpret that call? What does it tell us about how officials view war more broadly?
Moyn: It seems as if American policymakers are pushing on Israel their own solution to a controversial war, which is to combine an unlimited right to self-defense with a humanization of the conduct of the hostilities. Now, the truth is, Israel probably got to that combination before September 11, 2001, and the United States learned it from Israel in the first place. But given that America is Israel's patron and protector, it's now in a position of teaching the lesson to Israel that it learned from it. Now, I'm all for saying that these wars — the War on Terror, the campaign in Gaza — are parodies of humanized war because they're so costly in civilian lives. But they're not as bad as they could be because of this new policy — it's still largely rhetorical, but it's policy too — of containing the collateral damage and saying that that makes the war more tolerable.
RS: Why is the U.S., and the Biden administration in particular, so focused on questions of international law in war? To the extent that they have placed checks on Israel, it's been to suggest that international law is the thing that they must be holding to, rather than a broader sense of morality.
Moyn: Well, it's really only a part of international law, which is itself very interesting. Claiming an unlimited right to self-defense isn't just a moral claim; it's also a legal claim, and it's wrong. It was wrong in the War on Terror, and I think it's wrong when Israel asserts it today.
We could get into the details on that side of the equation, but you're right that in our debates, international law has become something that for many listeners means constraint not of the right to wage war but of how it’s waged. I think that Joe Biden, in his so called 'bear hug' strategy, thought that once it became clear how controversial this war was going to be, he would push humanitarian concern as a way of not interfering with Israel's claimed right of self-defense, [just as] America didn't tolerate those who said its wars were illegal while sometimes accepting the criticism that the way it conducts them is illegal.
RS: How, both in its justification and in its conduct, does this war differ from the wars that the U.S. carried out following 9/11?
Moyn: It is more similar to the ground campaigns that America fought in Afghanistan and Iraq, which involved a pretty substantial commitment of troops and a lot of blood spilled just because ground warfare is bloody, especially when it involves cities like Fallujah or Gaza City.
It's not similar to the absolutely no-holds-barred phase of the War on Terror where the George W. Bush administration asserted that international law just didn't apply to what it did to detainees. The whole point of humanized warfare is that Israel is claiming that it's following the law. But it's also not similar to the later, so-called “sustainable” phase of America's War on Terror when America pulled out troops even while extending its drone campaign and special forces deployments and then claimed to sanitize that phase of the War on Terror without all the messiness of American troops on the ground in Afghanistan and Iraq.
Israel's currently in a phase that combines lots and lots of violence with claims to still be following international law. It has had phases of its struggle against Hamas that involved just bombing or its own use of special forces that were about conducting the struggle but making it as antiseptic as possible. It's just that Israel can't conduct that kind of campaign while promising to remove Hamas from power altogether.
RS: Do I understand correctly that, generally, law of war questions only concern conduct within the war and not whether the broader goals of a war are appropriate or inappropriate? Doesn't it leave those questions entirely to the discretion of states?
Moyn: It depends on how you define laws of war, but what we call international humanitarian law, or the laws of armed conflict, is really exclusively about how you fight. And there are other laws about when, whether, under what circumstances you can fight at all. You could call that body of law part of the laws of war, but it wouldn't be what most people mean when they use that phrase.
RS: I guess I'm thinking about the question of proportionality.
Moyn: The reason that's a tricky concept is that it applies in both stages of the analysis. In the so-called jus ad bellum analysis — when the resort to force in the first place or on a continuing basis is legal — there's the question of whether the exercise of a self-defense right is proportional. That is a totally different inquiry than what has generally been talked about in terms of proportionality because that's in the jus in bello — the laws of war about the conduct of hostilities. And there the question is, does the collateral damage in any particular attack outweigh the anticipated military advantage of that attack? We could argue that Israel is being disproportionate in the war in general, on the first part of the question, or we can argue with regard to any particular attack whether its attacks are disproportionately harmful to civilians.
RS: Guardian columnist Nesrine Malik recently wrote that the lesson of this war is “brutal and short: human rights are not universal and international law is arbitrarily applied.” Do you agree with that take?
Moyn: No, because it was a lesson that the whole history of human rights and international law already taught.
RS: Can you tell me more about that?
Moyn: Well, there was never a time when human rights weren't selectively applied, and there was never a time when international law wasn't the law of the powerful. This campaign seems like a rather late date to learn what has always been obvious.
RS: Is that a fundamental problem for international law? Or is there a possibility of a more effective international legal system in the future?
Moyn: Sure, it's not as if there isn't a struggle within politics, and therefore in law, to make the law different than it has been. I could say that American law works to the advantage of the powerful and against the weak, and that would be true, but that doesn't mean we can't change it for the better.
I think international law has been changed for the better at times, but it's never been freed from this syndrome that it's a body of law of, by, and for states, framed with their approval, and interpreted by them to suit their ends. We can struggle to make it more constraining in more ways, but never is it apart from the political context. Never will it transcend selectivity and inadequacy.
RS: You've already written a book-length answer to this, so I'll forgive you if it's not the easiest one to answer quickly, but do you think that international law can be a tool to fight for an actual end to war? Or is it simply a tool to manage war into the future?
Moyn: I do think there are a lot of resources in it. It is revolutionary that we can make claims not just that states are fighting brutally but that they're engaged in illegal war-making. The trouble is that, if we prioritize the first claim, the second claim gets lost in the shuffle. I think that's what's happened in our time through the War on Terror, with the emphasis on torture and later civilian death in drone campaigns. It seems to be repeating itself in this situation, with the emphasis on civilian death, which is not dishonorable, but in the end there's only a political solution, which means we should focus at some point on who's in the right, who has a just claim, and what would make political violence something of the past.
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