Both sides stand accused of violating international humanitarian laws, committing war crimes against civilians. Hamas’ use of human shields and attacks on non-combatants raise ethical concerns. Meanwhile, Israel’s failure to follow rules on combatant liability, proportionality, and military necessity reflects immorality

The eruption of war between Hamas and Israel, which has claimed thousands of lives and caused massive destruction, raises several insoluble questions to ponder. Following what has been called a terror attack by Hamas in Israel on October 7, the retaliation by the group has resulted in more than 10,000 casualties and unprecedented destruction in the Gaza Strip. The two extremes, with Israel declaring itself “at war” and Hamas cheering the motionless hostages paraded in Gaza, make the chances of a possible ceasefire weak. At a time when international communities are divided on taking sides, the (un)ethical questions surrounding the ongoing war between Hamas and Israel merit discussion.

Should Hamas’ attack on Israel be justified? Should Hamas’ attack be ignored since Israel’s counterattack exceeds the death and destruction? Should Israel be blamed absolutely for its ruthless retaliation?

These questions can possibly be addressed by appealing to standard ethical principles of regular and irregular warfare. Accordingly, the (un)ethical dimensions of the ongoing Israel-Hamas war can be interrogated through both “traditional just war theory” and “contemporary irregular warfare tenet”. The rationale for engaging through the above-mentioned theoretical positions can be predicated upon the status of the warring parties: Israel as a nation-state (as seen through the dominant perspective) and Hamas as a non-state actor (although Hamas participates in legislative processes in Palestine).

Despite their contrarian fundamentals, the striking similarity between the above-mentioned theoretical positions is that they come to a consensus on the necessity of a “just cause” (Jus ad Bellum) to initiate a war; nonetheless, they vary in characterising the “just cause.”

According to traditional war theory, the “just cause” includes a cluster of aspects such as: a reason that inhibits unjust injury; the right intention that should be delimited to attain the goal of inhibiting unjust injury; likelihood of success, where the possibility of success must be greater than the failure; proportionality, which refers to morally expected advantages overshadowing the morally estimated evil from the war; and the war as the last resort left to achieve the end.

On the contrary, the contemporary asymmetric warfare notion defines “just because” as “that it may permissibly be pursued by means of war, and that the reason why this is so is at least in part that those against whom the war is fought have made themselves morally liable to military attack”.

The moral liability to be harmed is acquired through satisfying the purpose, i.e., if that harm is in use to prevent further misconduct or compensation for the victims of previous wrongdoing. The liability to be harmed is not present in the lack of such a goal. Thus, it can be fortified that the liability of people to be harmed in a war is based on thwarting the attainment of an unfair cause and protecting people from injuries by unjust combatants in their endeavour to attain an unfair cause. Accordingly, the liability of a person to harm is qualified by the same objective, and thus, the attribution of liability to harm is regulated by the prerequisite of “necessity”. The internal relation between necessity and liability confirms that “if harming a person is unnecessary for the achievement of a relevant type of goal, that person cannot be liable to be harmed.”

Thus, the moral liability to harm relies on the moral liability to be harmed if it prevents the person from achieving an unjust goal.

It is also plausible to invoke the moral principles that are to be followed during the war (Jus in Bello). It includes a set of principles such as differentiation, which demands segregation between combatants and non-combatants; proportionality, which must be upheld between unintentional military harm and military benefits attained; and military necessity, which expects the lowest amount of death and destruction to be aimed for using the least detrimental military means. 

Given these moral prescriptions, the attack by Hamas on Israel demands moral accountability. A fundamental question that can be raised is whether Hamas’ attack precedes a just cause. The liability of Hamas to kill thousands and take hostages of hundreds can be verified by the objective that involves preventing the attainment of unjust goals, such as deterring future misconduct or compensating the victims for former delinquency.

However, Hamas outrightly fails to qualify this condition since those civilians are neither aimed at future misconduct nor are they culprits of some other victims for whom the former is supposed to pay compensation. They are innocent civilians and noncombatants and thus seek immunity to be protected from any attack. Hence, Hamas lacks the moral liability to harm Israelis and thus is unethical.

However, according to UN Article 51 (grounded in Just War theory), a war can be initiated on the account of immediate self-defence. Accordingly, the counterattack by Israel may qualify the necessary condition to have a just cause to retaliate against Hamas. Because it is also compensation for the victims who have been harmed by Hamas and can be a deterrent to prevent future delinquency. Thus, Israel might secure its moral stance to this extent. Nonetheless, there are certain prescribed humanitarian rules (Jus in Bello) that should have been followed by Israel in waging a war on Hamas. It is evident that Israel ignores following those rules in terms of undiscriminating combatant liability and noncombatant immunity; disproportionality between aimed military benefits and unintentional military harm; and military non-necessity that causes intensive death and destruction, including displacements, by using the most harmful military means. The war is unethically of Israel as is reflected in blocking the supply of food, water, and other essentials for the civilians in Gaza.

Accordingly, it can be safely argued that both sides violate International Humanitarian laws in terms of not protecting civilians through humane treatment and thus commit war crimes. Killing civilians and non-combatants through unanticipated attacks, taking them hostages, and using them as human shields are the war crimes committed by Hamas, which is unethical. However, although Israel satisfies the necessary condition (Jus ad Bellum) to initiate the war, it fails to qualify Jus in Bello and thus lapses into immorality. Apart from anthropomorphic issues, there is a necessity to ponder upon environmental pollution caused by war because nature is already alarmed to reflect upon it and its dire consequences. Thus, any war, whether regular or asymmetric, precedes a meditative rumination about the awful consequences of it. 

(The writer is a former Ethical Consultant at the National Institute of Advanced Studies, Bengaluru.)