Jus ad bellum — Jus in bello: Words have meaning

Words have meaning and should be used with care. Many Israeli news outlets are calling the wave of incendiary devices coming from Gaza “terror balloons.” These attacks on our green and fruitful land are described as acts of terror. They are not – they are acts of war. Going to work in the morning and wondering if your bus is going to be blown up – that’s terrorism. Setting light to agricultural land is an act of war. In fact, it is a war crime.

For those of you who, like me, do not read Latin and have not studied the various conventions that govern how we are allowed to kill each other, a quick explanation is in order.

The United Nations Charter of 1945 introduces Jus ad bellum which specifies the conditions under which States may resort to war or use armed force. Once an armed conflict has started, Jus in bello regulates the conduct of parties involved.

International Humanitarian Law (IHL) is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible.

The International Committee of the Red Cross (ICRC) has published a survey of International Humanitarian Law on a country by country basis.

Israel’s Manual on the Laws of War (1998) clearly states that conducting a scorched earth policy “with a view to inflicting starvation or suffering on the civilian population … is forbidden”.

Unsurprisingly, there is no entry for ‘Palestine’. It is not clear if the ICRC does not believe there is such a country, or if Palestinians are not subject to the laws of the civilised world.

OK, we can agree that burning kites are not terrorism but acts of war, but what difference does this make? For a start, terrorists’ backers are hard to pin down. If a Palestinian gets on a bus, here in Israel, with a bomb hidden in his bag, we all know who is responsible but there is no legal proof. It’s difficult to start a war against an amorphous enemy. Fire kites are a different matter entirely; they are launched from territory under the sole control and responsibility of Hamas. Whether Hamas approves, encourages or even takes part in launching these weapons is irrelevant. They are the responsible body and must bear the consequences of these acts of war. They have the power to stop these attacks but have refused to do so.

Let us look at the main principles Jus ad bellum lays down for starting a just war. Firstly, war must be declared publicly, and it must be declared by the proper authority. No problem here – Israel is most definitely a proper authority and the war would be declared loud and clear.

Secondly, violence used in the war must be proportional. This requirement is a little hazy. In general, the level of destruction caused by military action must be proportional to the level of the military gains that follow. As an example, if there is just one enemy combatant in a shopping mall full of 500 civilians, blowing up the mall would not be proportional. However, if there are just a few civilians, in a car or a house, next to a high-value military target, they would be considered justified collateral damage under the rule of proportionality. As Hamas deliberately places its high-value military targets, including long-range missiles, in the midst of civilian properties, Israel would seem to be justified in dealing with these targets at the cost of a few unfortunate civilians.

The third principle is that of right intention. War should be intended to establish a just peace. This state of peace should be preferable to the conditions that would have prevailed had the war not occurred. War cannot be fought to gain territory or cause a regime change, however desirable that might be. Israel would probably get a passing grade on this, we have no interest in getting back into Gaza, although a regime change might well be an unintended result of war with Hamas.

And lastly there is the appropriately named principle of Last Resort. This requires that all non-violent options must be exhausted before the use of force can be justified. These include talks, diplomatic options, sanctions, and other non-military methods. A just, legal war can commence only when all these options have been tried and have failed.

Israel has spent a lot of effort trying to get an agreed ceasefire with Hamas. Several agreements, made with the help of third parties, have been followed by a rain of yet more fire kites.

It is time to accept that fire kites are most definitely casus belli – an act or event that provokes or is used to justify war. As the Romans used to say – Si vis pacem, para bellum,  “If you want peace, prepare for war.”