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On Strategy, Law, and Morality in Israel’s Gaza Operation

Benjamin Wittes
Tuesday, October 17, 2023, 12:00 AM
While law restrains Israel in some ways, it does not prevent an Israeli response to Hamas that will morally discomfit not only those who hate it but many of its friends as well.
Smoke rising above the Gaza skyline, January 2009. (Al Jazeera English,; CC BY-SA 2.0 DEED,

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With the possible exception of the Demilitarized Zone in the Korean peninsula, there is no geographic line in the world across which life changes more dramatically over a shorter distance than the border of Israel and the Gaza Strip.

On one side of the line, the per-capita gross domestic product is $55,000 per year, according to the International Monetary Fund—just over two-thirds that of the United States. The population density is low. While Israel itself packs a lot of people into a small area, in general, the region surrounding the Gaza border lies outside of the sprawl that runs up and down the coastal plain and between Tel Aviv and Jerusalem. It is dotted with small agricultural villages. The only major city in the region, Ashkelon, is 13 kilometers away and has fewer than 150,000 people—with closer-by Sderot having only about a fifth that many people.

On this side of the line, governance is the province of a modern, highly functional state, overseen by an elected government. Infrastructure is modern. Social services are highly developed. The sovereignty of that state, while controversial in academic circles worldwide and still unrecognized by a number of regional actors, is firmly established and increasingly recognized by the other states in the region. The lingua franca on this side of the line is Hebrew, but depending on precisely where along the border and how far from it you are, the street language for many people may also be Arabic, Russian, or English. 

Cross over into Gaza—and, the proximity being what it is, Israeli villages extend right up to the line—and everything changes. The per-capita income plummets by more than 97 percent to around $1,250 per year, according to the World Bank. Worldwide, only wealthy city-states like Monaco and Singapore and jurisdictions like Hong Kong and Macau exceed Gaza’s population density; more than 2 million people are crammed into an area roughly twice the size of Washington, D.C. Gaza’s infrastructure is a disaster, with drinkable water and electricity alike both scarce, and food insecurity widespread. Government social services are virtually nonexistent. The deprivation is fueled, in part, by a long, partial blockade of the territory maintained by both Israel and Egypt.

The territory is ruled by Hamas, a fundamentalist militia that both the United States and the European Union consider a terrorist organization, which won a legislative election in 2006 and seized executive power in a kind of coup the following year. Hamas’s military infrastructure is deeply embedded within the civilian population with both command centers located in civilian buildings and weapons caches and launch sites based in or near civilian institutions or residences. Sovereignty, however, is undetermined. Israel, which was the occupying power until 2005, makes no sovereign claims over Gaza. Neither does Egypt, which occupied the strip from the time of Israel’s founding until 1967. The Palestinian Authority has never declared a Palestinian state and doesn’t control the territory in any event. And Hamas has not declared itself a sovereign entity either. The spoken language on this side of the line is almost uniformly Arabic. Roughly half of the population is under 18.

I draw this picture of contrast neither to assign blame for the shocking disparity in living conditions evident in the descriptions (there’s enough blame to go around), nor to complain on behalf of Palestinians about their comparative misfortune (though complaint is certainly justified), nor to triumph on behalf of Israelis at their comparative windfall (though the accomplishments of the Israeli state are nothing to sneeze at).  

Rather, I start with this portrait to emphasize the extreme asymmetry of the conflict now unfolding in Gaza: the truly deranged nature of Hamas’s decision to initiate a war against the region’s preeminent military power—and to do so in a fashion of almost unimaginable brutality that necessarily brings the full weight of Israeli military power against a territory, teeming with civilians, which the militia cannot possibly hope to defend; the impossibility of an effective Israeli military operation in Gaza without horrifying civilian death and destruction; and the concurrent impossibility of refraining from conducting such an operation given the extreme proximity of these two populations across this line and the need to prevent similar atrocities in the future.

These are the conditions against which we have to consider the strategy, law, and morality of Israeli military operations in Gaza—about which I make eight related points in this article. 

It is important both to separate strategy, law, and morality, for they are not co-extensive with one another, but also to consider them in interaction, for they do not exist in isolation from one another in a situation like this one. There are steps, for example, that are lawful but not moral. Conversely, there may be steps that are morally defensible but are prohibited by international humanitarian law. And there are, in my judgment anyway, a great many steps that are moral in the context of a viable strategic framework but not outside of it. 

A preliminary point: I am talking here about these questions from the point of view of Israeli policymakers and military decision-making on the Israeli side. There is nothing to be said for the legality or the morality of Hamas’s way of warfare, which consists of war crimes layered on top of other war crimes. To describe it accurately—the intentional effort to murder civilians, to take hostages, and to do these things from within a base nested within a civilian population—is to condemn it utterly.

As to Hamas’s strategy, it appears to be to provoke Israel into an apocalyptic battle and to go down in a blaze of glory. The reader will pardon me if I don’t take this strategy any more seriously than I do the strategy of the mass shooter—whose logic is eerily similar. If these are not your moral starting points, the rest of this article may be of limited value.

Let’s start, then, first, with the highest-altitude moral point: that when a state is attacked militarily, it will respond militarily to the extent that it can. This is legitimate both morally and legally, and it makes intuitive sense strategically as well. The state’s most fundamental purpose is the protection of its citizens. A state that fails militarily to defend its people forsakes its reason to exist.

Note that this point in no way depends on whether you like the state in question, whether you support its policies, or whether the state was—as a great many states were—born in some original sin it has not fully expiated. The right of self-defense is not a reward for good behavior. It’s simply a fundamental attribute of statehood or, more generally, peoplehood.

It thus will not do to condemn the Israeli response because you hold Israel responsible for conditions in Gaza as an antecedent matter. That is as illogical as blaming the United States for responding militarily to the attack on Pearl Harbor because it never should have annexed Hawaii decades earlier. Nobody objected to the Soviet Union’s response to Operation Barbarossa on grounds that the Baltic and Polish and Ukrainian territories invaded were illegally occupied by the Soviets anyway—and that the Soviet regime was deeply objectionable and murderous.

Relatedly, it also will not do to insist that a state has no right of self-defense because it shouldn’t, in your judgment, exist. Most states don’t exist as a result of some pristine moral logic. Their existence is just a reality, often to the irritation of their critics. And they defend themselves because peoples who don’t choose governments capable of defending them tend not to last very long. 

It also will not do to insist that the fact that one party is stronger than the other means that it shouldn’t respond at all or that it must somehow constrain its response to even the playing field. Sometimes, weaker parties attack stronger parties, and thus trigger the need for stronger parties to defend themselves. It seems to me quite naive to expect that they will do so only with a discounted fraction of their capabilities and powers. War and conflict are not golf, and they are not waged with handicaps. 

Second, this high-altitude moral point has an important, and very tragic, corollary, and I’m going to state it bluntly: As an inherent part of Israel’s legitimate response, a lot of civilians have died and been injured, and many more will be hurt and killed. There are major military operations that armies can pull off with minimal civilian casualties; for example, you haven’t heard a lot about Russian civilian casualties during the full-scale invasion of Ukraine, because the battle is being fought in Ukraine—not in Russia—and thus Ukrainian forces, in targeting the enemy, mostly need not fear collateral consequences to civilians.

Gaza is a wholly different story. The space is extremely constrained. Hamas is deeply embedded within the civilian population and infrastructure. There is no antiseptic operation possible that will clear Hamas out of Gaza. So to accept the Israeli right of self-defense, or even to accept the obvious reality that Israel will defend itself, is to accept that a high level of human suffering will take place.

A correspondent of mine objects to this line of reasoning, stating that while she agrees that every state “has a right to self-defense,” she also believes that “there is a link between Israel’s treatment of Palestinians over the years and Hamas’s attacks.” While she does not justify the attacks, she writes, she does “think Israel is partially responsible for the radicalization of ... Palestinians broadly, which I think contributed to” the attacks of Oct. 7. It thus seems weird, she writes, “that I can’t condemn Israel for its brutal response to the attacks that they partially brought onto themselves.”

This reasoning is attractive to a great many people, so let’s give it its due. That Gaza is a pressure cooker has many causes, and Israeli policy is certainly one of them. Though it is by no means the only major one and it is wholly non-obvious what an alternative Gaza policy would look like, it is quite fair to criticize Israel for its treatment of Palestinians in general and of Gaza in particular and to argue that this treatment has played some role in setting the conditions for the Oct. 7 attacks. It is also fair, as I’ll discuss below, to criticize or condemn Israeli brutalities in prosecuting the current campaign.

Where this argument seems to me a non sequitur, however, is where it links these matters too closely. That is, if the Israeli response is condemnable as brutal, it is condemnable as brutal whether or not the Israelis played a role in setting the conditions that led to Oct. 7. Imagine that Hamas had attacked Finland, instead of Israel, and that Finland had responded with brutal war crimes. It would be no defense of the Finnish response to say that the attack on Finland had been wholly unprovoked and that Finland was utterly innocent in Gaza’s larger plight. The brutality would still be brutal; the war crimes would still be war crimes. 

Conversely, if the Israeli response is justifiable as self-defense, it is justifiable as such whether or not Israel bears some share of the larger historical and contemporary responsibility for the plight of Gaza. Eventually the assessment of Israel’s operation has to stand on its own. 

This brings me to my third major point, which is that Israel’s friends do it no favors in excusing brutality in the current campaign because of the legitimate self-defense rationale that lies behind the operation. Indeed, in acknowledging that self-defense justifies military actions in which civilians are going to die, I do not mean in any way to argue that Israel is morally or legally entitled to respond however it sees fit. There are significant legal constraints on Israeli action. And there is, in my view anyway, even before those come into play, a high-level moral proposition that people often skate over because it has no enforcement mechanism other than politics and because it is not embedded in any known legal principle.

To wit, as I see it anyway, to wage this conflict even in self-defense without a coherent strategy is morally dicey. It is not, to be clear, a war crime. There is no principle of the law of armed conflict that makes it a crime to respond flailingly and without a well-thought-through strategy to an armed attack. 

Yet when a lot of civilians (many of them children) are going to die in a conflict, that fact imparts a certain responsibility to think things through carefully—and specifically to think through the question of how things are going to be better at the end of the conflict than they are now. This same point, by the way, flows from the fact that a lot of Israeli soldiers—for whose lives the Israeli government is more directly accountable—are also going to die. Without a strategy, a sound, well-thought-through strategy, the operation is really just a giant reprisal attack.

And while that would be fine if it could be confined to military targets, it can’t be so confined. And my tolerance for reprisal operations that carry high civilian costs is limited—even if each individual strike can be justified under the law of armed conflict. 

So what then can we say about the Israeli strategy as the government has articulated it? Here we have not much to work with.

The Times of Israel reported on Saturday that Israeli National Security Council chief Tzachi Hanegbi stated that the military’s objective was to remove Hamas from power in Gaza:

National Security Council head Tzachi Hanegbi reaffirms the cabinet’s war goal is remove Hamas from military and political control over the Gaza Strip, but declines to elaborate on planned next steps for the coastal enclave.

When asked about Israeli plans for alternative control, or return to occupation, of the Gaza Strip, Hanegbi tells The Times of Israel: “We can’t report through you to the enemy on what is coming, we can tell Hamas that it is prohibited for it to be the sovereign in Gaza.”

Hanegbi says that in a recent cabinet meeting, the government approved a plan to “destroy” Hamas, as stated by the prime minister and defense minister.

“Hamas will not be the ruler, the sovereign in Gaza after the combat,” he says.

The New York Times elaborated somewhat a day later, reporting that:

The Israeli military is preparing to invade the Gaza Strip soon with tens of thousands of soldiers ordered to capture Gaza City and destroy the enclave’s current leadership, according to three senior Israeli military officers who outlined unclassified details about the plan.

The military has announced that its ultimate goal is to wipe out the top political and military hierarchy of Hamas, the Palestinian group that controls Gaza and led last week’s terrorist attacks in Israel that killed 1,300 people.

Here is everything in the story regarding Israel’s strategic thinking:

It remains uncertain what Israel will do with Gaza City, Hamas’s stronghold and the enclave’s largest urban center, if it captures it, or what exactly Israeli officials mean when they describe the destruction of Hamas’s leadership.

Their goal will be “the rout of Hamas and the elimination of its leaders after the slaughter they perpetrated,” Rear Adm. Daniel Hagari, the chief spokesman for the Israel Defense Forces, said on Saturday.

“This organization will not rule Gaza militarily and politically,” Admiral Hagari added.

Israel’s government has not yet decided whether to retake southern Gaza in addition to Gaza City, according to one of the senior military officers.

But if southern Gaza stays outside of Israeli control, some Hamas leaders could still remain at large.

Some military and political leaders want Israeli soldiers to undertake 18 months of door-to-door arrest operations, said Nimrod Novik, a former senior Israeli diplomat and security adviser to the Israeli government.

“Others, I think, are far more sober and not talking about demolishing Hamas — but rather depriving Hamas of their ability to threaten us,” Mr. Novik added.

The story also notes that plans for what happens after Hamas is routed are very much in flux.

This is pretty thin stuff. To be fair, it remains unclear how much of the relative paucity of information regarding Israeli strategic objectives is a function of the particular strategic airplane’s being built midflight and how much is a function of the government’s not wanting to show its hand right now. I suspect there’s a bit of both going on.

Nor do I necessarily fault the development of a strategy midstream, if that’s indeed what’s happening. The nature of surprise attacks, after all, is that they take you by surprise, and they may necessitate a response before you are wholly ready to respond.

My point, rather, is that if Israel is not operating pursuant to clear objectives that warrant the cost it is exacting, that is a grave moral problem irrespective of whether the individual strikes are lawful. And it’s a problem that Israel needs to rectify immediately. 

To be clear, I don’t know that Israel has no coherent strategy. But I fear that the strategic thinking has been inadequate. And while this is understandable if it’s the case, it would be a grave failure nonetheless. 

Fourth, and this point is a fundamentally legal one, the fact that you regard the Israeli action in the main as either just and reasonable or as unjust and brutal does not answer the question of whether war crimes are taking place.

It is not a war crime to kill civilians. It is a war crime to target civilians or to target enemy forces with insufficient attention to the requirements of necessity, distinction, proportionality, and humanity. To assess whether a given strike is a war crime or not, you have to look at what information was available to the decision-maker at the time of the action, not what information is available after the fact. 

It is easy enough to look at Hamas’s actions and declare them war crimes. There are mass murders of civilians at close range, after all. There are indiscriminate rocket firings in large numbers. There is the taking of hostages. And there are the atrocities with which all of these actions take place.

The Israeli targeting actions, by contrast, are not nearly as easy to assess. (I address the siege policy distinctly below.) You don’t simply get to look at a grim humanitarian picture and conclude that whatever produced it must be a war crime. Each action that has resulted in civilian harm requires separate examination. Each case will require an answer to questions such as whether the civilians were targeted or whether they were killed or injured in a strike against a legitimate military target. Each case will also require an answer to questions about what military necessity may have prompted the strike and what awareness the relevant actor may (or may not) have had of civilian presence. Each will also require an assessment of whether the anticipated civilian injury was reasonably deemed proportionate to the expected military gain. Each of these questions has to be asked separately about each incident of civilian harm in which a war crime may be suspected.

And there’s a catch. You don’t get to say that because the Israeli cause is just and legitimate self-defense, we should construe all of these fact-intensive individual judgments in favor of the lawfulness of the Israel Defense Forces’ (IDF’s) conduct in the field. And you similarly don’t get to say that because the Palestinian cause is just and we don’t like Israel, we will apply a strict liability standard to Israeli actions in the field and construe all civilian harm in the light least favorable to Israeli soldiers. You actually have to do the analysis before you decide whether and where war crimes were committed—and that analysis requires facts we don’t yet have.

Fifth, it is thus a grave analytic and legal error to conflate an apparently large number of Palestinian civilian casualties in Gaza with war crimes. I understand the temptation to equate human-inflicted disaster with war crimes. But it’s wrong. To be sure, some strikes that have killed civilians may be war crimes to the extent the civilian death was the result of intentional targeting. But some strikes may reflect mere error, bad intelligence, or collateral damage permissible under the laws of war. In this conflict, civilian death may—as I fear—reflect a campaign taking place without a clear strategy in an area in which a terrorist group is dug in among densely-packed civilians.

And here’s the problem: Whatever the reality is will all look more or less the same as what is happening right now. If Israel is committing war crimes, it will look like this. If the Israeli strategy is perfect and every strike complies fully with the law of armed conflict in every particular, it will still look like this. If the reality is anything in between these two poles? It too will look like this.

Attempting to assess Israeli targeting actions right now is a mug’s game.

Sixth, even determining the number of Palestinian civilians killed and injured during the conflict is impossible. As of this writing, the Gaza Health Ministry reports that 2,670 Palestinians have been killed and 9,600 injured “since the start of escalation on the morning of 7 October.” This presumably does not include the 1,500 Hamas fighters Israel reports having killed on its own territory, though that is not entirely clear. But even leaving this question aside, the ministry makes no effort to distinguish between Palestinian civilian casualties and casualties among Hamas’s fighting cadre.

But of course, that ratio matters a great deal. You might feel very differently about 1,500 Hamas fighters killed in Israel and 2,670 Palestinians killed so far in Gaza if you knew, say, that 70 percent of the latter group were Hamas fighters and 30 percent of them civilians than if you knew the ratio were the opposite.

More broadly, you might feel differently about any given number of casualties if you knew that Hamas’s fighting capacity was being substantially destroyed in a long-term fashion that would lead to something better for Gaza and Israel than you would if you thought this was all a strategyless exercise in—as the Israelis undelicately put it—“mowing the grass.”

Right now, all we can really say is that there are a lot of civilian casualties, as one would expect there to be when Israel fights across the Gaza line.

Seventh, I want to say a few words in qualified defense of the Israeli evacuation order concerning the northern sector of Gaza. Israel has received a blizzard of criticism for this move, criticism that seems to me largely misplaced.

No, it is not possible to evacuate a million people in 24 hours—particularly not when Hamas is ordering people not to leave northern Gaza and obstructing some people’s efforts to do so. And no, it is also not possible to evacuate quickly hospitals teeming with patients and people seeking safety. That said, the more civilians who can vacate the combat zone before any ground operation begins, the better.

This does not relieve the IDF of the obligation of distinguishing between civilians and combatants when its forces come in; that obligation persists. But an environment in which there are many fewer civilians in the combat zone is an environment in which the IDF can undertake that obligation more successfully more of the time and thus kill many fewer innocent people by accident. That’s a good thing. And it is not, as many critics are alleging, “forced displacement” of civilians; it is a warning to civilians that the affected area is about to become ever more dangerous.

To be clear, Israel must make no territorial claim here on Gaza and has to allow civilians back to their homes. But it cannot be the case that Israeli forces are disallowed to operate against Hamas in Gaza because of the presence of civilians and also disallowed from trying to isolate Hamas in the north with civilians concentrated in the south so that it can fight Hamas with minimal civilian harm. The rules cannot disallow Israel from depriving Hamas of its human shields.

As law of war scholar Michael Schmitt puts it over at the excellent Articles of War blog, “I struggle to see how warnings that Gaza City is about to be attacked and civilians should leave can be characterized as anything other than actions designed to minimize loss of life and injury. There will indeed be extreme hardship in the area to which they are moving, but the risks there are dwarfed by those they would face amid high-intensity combat.”

Finally, and following similar logic, Israel badly needs to rethink its current siege policy, announced by Defense Minister Yoav Gallant shortly after the conflict began. The legalities of siege warfare is a complicated subject; for those interested, this article by Geoffrey Corn and Sean Watts and this one by Rosa-Lena Lauterbach—both also on Articles of War—are valuable primers that consider the current facts.

Here, however, I want to address the siege as a moral and strategic matter, which is—in my view—a lot less complicated.

As originally declared, the policy closes the Israel-Gaza border to food, electricity, fuel, and water. Israel announced Sunday that it had relaxed the siege as to water to the south of Gaza. This is good, as cutting off potable water to a civilian population of more than 2 million people is, in my view, indefensible. But water still does not seem to be getting through in remotely adequate volume.

The issue of food is a little more difficult, since all incoming relief has to be inspected. (In an article some years back written with Matthew Waxman, I described just how difficult the operation of checkpoints can be.)

That said, it is only a little more difficult. Preventing humanitarian relief to civilians is neither moral nor sustainable. And particularly if the IDF’s goal is to coax civilians to come south, thus isolating Hamas fighters in the north of Gaza, opening some humanitarian distribution seems essential—even if some of the supplies will be taken by Hamas to feed its fighters.

These points all amount to one big point: While law plays a real role in the Israeli response to Hamas, the fundamental questions here are not legal, but moral and strategic. The Israeli-Palestinian conflict won’t be resolved by legalistic arguments regarding who should follow what supposedly binding legal principle. And the law will get us only so far in evaluating or managing the current spasm of violence. It does nothing—literally zero—to restrain Hamas. And while it does restrain Israel in some meaningful ways, it will not prevent an Israeli response to Hamas that will morally discomfit not only those who hate Israel but many of its friends as well and, if not particularly well thought through, may prove of limited strategic value.

So what’s the right approach for Israel?

I have no idea—except to suggest a relentless focus on what happens after a lot more Israeli soldiers and Palestinian civilians get killed. The law doesn’t require that Israel have a strategy. Israel needs to require that of itself.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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