On Nov. 14, Human Rights Watch released a report accusing Israel of crimes against humanity and war crimes. On Oct. 18, a United Nations Commission of Inquiry found that “Israel’s prolonged occupation, settlement policy, annexation of Palestinian territory, and discriminatory legislation” violated international law. On June 12, an independent commission found evidence that Israel has committed war crimes in its conflict with Hamas. And on May 20, the International Criminal Court issued applications for arrest warrants for Prime Minister Netanyahu and former Israeli Minister of Defense Yoav Gallant on charges of war crimes and crimes against humanity. In his statement announcing these applications, Prosecutor A. A. Khan stated that “no one can act with impunity,” sending the message that international law does not take sides in war.
These statements have not stopped the violence. Far from showing restraint, Israel invaded Lebanon on Oct. 1 and is continuing its devastating attacks on Gaza and occupation of the West Bank. In Lebanon, where the death toll has now exceeded 3,200, Israel is using many of the same tactics as in Gaza, resulting in further accusations of war crimes.
Why has international law and ongoing condemnation from human rights groups failed to restrain Israel’s actions? The problem is not only that, as Neil Renic and Elke Schwarz argue, “The unmooring of law from ethics has incentivized and provided cover for the expansion of violence across the Middle East.” Debates over the legality of Israel’s tactics have indeed diverted attention from the underlying ethical principles that are relevant to the conflict in Gaza and Lebanon, focusing instead on questions such as the legal meaning of “human shields.” But Israel’s defense of its tactics and impunity for war crimes is also just the most recent example of a long history of liberal democracies using distorted ethical justifications for war crimes. These ethical justifications appeal to moral values rather than legal rules to sidestep concerns about the legality of, and accountability for, war crimes. Until such distorted ethical narratives are challenged, powerful states, including the United States and Israel, will continue to commit war crimes with impunity while claiming to be the most “moral military in the world.”
A short history of war crimes impunity
Despite their outward commitment to human rights and international law, it is no secret that liberal democracies have committed large-scale war crimes. For example, the United Kingdom engaged in a campaign of torture and detention in Kenya, France carried out “systematic torture” during its war in Algeria in the 1950s, and the United States conducted carpet bombing in Cambodia during the Vietnam War, and implemented a torture program after the 9/11 terrorist attacks.
Despite differences between these cases, the ethical narrative used by liberal states to justify war crimes remains remarkably consistent, and dates back centuries. From the early days of European colonization of the New World, colonizing powers justified the genocide and torture of indigenous people by claiming that native peoples’ barbaric nature forced civilized states to resort to such tactics. For example, scholar Daniel Brunstetter explains how, after the American Revolutionary War, defenders of the wars of extermination against Native Americans justified their actions by claiming that Native Americans “did not abide by (European) rules of war but rather waged merciless warfare that ignored all civilized constraints … different standards were justified when dealing with such peoples.”
A similar narrative was used to justify the turn-of-the-20th century U.S. invasion of the Philippines and the use of torture against Filipino soldiers and civilians. When a 1904 Senate Report found evidence of the widespread use of torture by U.S. troops, members of the Roosevelt Administration suggested that torture “might at times be justified by the frequent violations of the rules of ‘civilized warfare’ committed by a ‘barbaric and treacherous’ enemy.” In contrast, U.S. forces were depicted as honorable. As the islands’ colonial governor and later president, William Howard Taft, claimed: “[N]ever had a war been conducted in which more compassion, more restraint, and more generosity had been exhibited than in connection with the American officers in the Philippines.” By blaming the resort to war crimes on the “barbaric” enemy and simultaneously depicting U.S. forces as noble and restrained, this narrative was highly effective in creating impunity for these crimes: No officer or soldier accused of torture in the Philippines served any prison time, and the events in the Philippines have been largely forgotten.
More recently, the same narrative appeared in the Bush Administration’s defense of the invasion of Afghanistan and the torture of terrorism suspects after 9/11. First, the conflict with Al Qaeda was framed as a conflict between “the civil and the savage,” in the words of then Attorney General John Ashcroft. Then, the infamous torture memos, produced by the Office of Legal Counsel, described torture as “abhorrent to American values,” on the one hand, but argued that torture might be necessary “to avoid the greater harm,” on the other. As with the case of U.S. torture in the Philippines, by simultaneously offering a legal defense for the use of torture and portraying the resort to torture as honorably motivated (regardless of its legality), this narrative helped create almost total impunity for the architects and perpetrators of the post-9/11 torture program. In the aftermath of the 2014 Senate Report on the torture program, President Barack Obama, who criticized the use of torture, nonetheless described those involved as nobly motivated: “A lot of those folks were working hard under enormous pressure and are real patriots.” The Obama administration then blocked all proposals for civil and legal accountability for those involved in the torture program, even rejecting “a South African-style ‘truth and reconciliation’ commission.”
Dirty hands and barbaric enemies: How Israel justifies war crimes
The narrative of “dirty hands and barbaric enemies” is currently being used by Israel and its supporters, framing the resort to war crimes as the tragic but necessary choice forced upon a morally honorable state by the abhorrent actions of an “inhumane enemy.”
For example, as soon as the Prosecutor Khan announced that he was seeking arrest warrants for Prime Minister Netanyahu and Minister Gallant, accusations of “false equivalency” appeared. A spokesman for the German foreign ministry said that the “simultaneous application for arrest warrants against the Hamas leaders on the one hand and the two Israeli officials on the other has given the false impression of equivalence.” President Biden called the ICC’s actions “outrageous,” asserting that “there is no equivalence— none—between Israel and Hamas.” And the American Jewish Committee released a statement claiming that the Prosecutor’s actions created “a false equivalence between leaders of a democratic country and leaders of a genocidal terror organization” that is “abhorrent.”
One assumption underlying the charge of “false equivalency” is that Israel’s actions in Gaza (and now in Lebanon) shouldn’t be called war crimes because Israel’s intention is only to defend itself. According to this characterization of the conflict, it’s Hamas’s and Hezbollah’s tactics and the existential danger that they represent to Israel that forces Israel to continue fighting.
This logic was used in the IDF’s public defenses of its conduct. For example, IDF spokesman Lt. Col. Jonathan Conricus defended Minister Gallant’s “starvation” order, which prevented the distribution of food and water to Gaza’s civilians, by stating that: “We have civilians … that have been taken by these beasts from Gaza… We are at war, we have been assaulted, attacked by a ruthless inhumane enemy that has butchered our civilians.” Gallant himself defended imposing a “complete siege” on Gaza using the following justification: “we are fighting against human animals and we are acting accordingly.” It follows, then, that the deaths of thousands of civilians in Gaza caused by Israel’s actions “is a deeply regrettable consequence of Hamas’ lawless tactics, not evidence of Israel’s criminal intent,” in the words of the American Jewish Committee.
A state’s right to defend itself against unlawful aggression is a core ethical principle in just war theory that is codified in international law. Israel has frequently referred to this right in defending its actions in Gaza and Lebanon. But a state’s right to defend itself is not unconditional—the principle of proportionality places strict limits on the degree, kind, and duration of force that can be used in a defensive war. For example, in both just war theory and international law, a state’s right to self-defense does not license direct attacks on civilians or the use of “means and methods” that are likely to cause disproportionate collateral harm to civilians.
So, defenses of Israel’s tactics that claim that these tactics meet the legal standard of proportionality, despite devastating the civilian population, are legally questionable. But the problem with the “false equivalency” argument and the characterization of Hamas and Hezbollah as existential threats goes beyond the issue of legal plausibility: it rests on, and promotes, a toxic ethical narrative that aims to excuse Israel’s actions even if those tactics are found to be illegal. As with the other cases described above, this characterization of the conflict offers a beguiling and deceptive depiction of Israel’s actions that, paradoxically, construes the violation of the laws of war as evidence of moral courage, even moral goodness.
Like earlier uses of this narrative, the argument that Israel is “forced” to use extreme tactics against Hamas and Hezbollah trades on the idea of “dirty hands”⎯the idea that, when facing a “lawless” enemy, good people might (“regretfully”) need to do bad things to save lives. But this is not simply a consequentialist “the means justify the ends” argument. Instead, the “dirty hands” in this scenario arises because the good people who are forced to do bad things thereby violate their own moral values. It’s because they have these values that they are good people. So, their willingness to take on the moral burden of “dirty hands” to save lives is evidence of their moral courage, not immorality. And, if it were not for the enemy’s savage nature, they would never have had to make such a moral sacrifice.
This framing of Israel’s actions conveniently shifts responsibility for Israel’s intentional choices (in tactics, weapons, and strategies) onto Hamas and Hezbollah. Because, according to this narrative, Israel is resorting to extreme tactics only out of the motive of defending itself and only in response to the tactics of a “lawless” enemy, it is the “inhumane enemy” who is responsible for all the crimes that occur throughout the entirety of the war, including those committed by Israel.
It is no wonder, then, that by depicting war crimes as both necessary and honorably motivated, this “dirty hands and barbaric enemy” narrative is appealing to states, including Israel, seeking to justify or excuse war crimes. As the past reveals, it has been very effective in enabling states to create almost complete impunity for atrocities.
Challenging war crimes impunity
Given this history of war crimes impunity, it is not surprising that Israel is replaying the same distorted ethical narrative that other states have used to create impunity for war crimes. Nor is it the first time Israel has used this narrative to justify and excuse war crimes, including torture. How can these narratives be challenged? Unfortunately, while asserting the primacy of ethical reflection and ethical questions above “dry legalism” as Renic and Schwarz argue, is important, it is not sufficient. Firstly, liberal states must acknowledge how deceptive appeals to noble motives and “dirty hands” have created and sustained their own commission of war crimes: They must reckon with their own histories of atrocity. Secondly, scholars, commentators, and policy makers must identify and critique this pernicious narrative wherever it appears. Otherwise, as we are witnessing today, this narrative will contribute to the failure of international law to restrain states and to the ongoing and proliferating commission of war crimes.