Keeping up with the news coming out of Gaza is daunting, so I can’t remember where I read it, but I recently saw someone reject the use of the term “war crime” because, as they put it, “all war is a crime.” 

That would put the phrase in a club along with hot water heater, tuna fish, Lake Tahoe, and ATM machine. 

I don’t entirely agree, but points for a thought-provoking way of putting it. 

I am not a pacifist, but I do believe that most people—and certainly the majority of political leaders—misunderstand the limitations of violence as a tool of policy, and are far too eager to turn to it. (Go read Clausewitz’s On War, in the original tongue if possible. I’ll wait here for three years while you learn German.) 

Those limitations are purely practical in nature and require no appeal to altruism or morality. That ought to be enough. But even in war there are moral boundaries. The war in Gaza offers a perfect, if horrifying, demonstration. 

AUTEUR THEORY

Though it may come as a surprise to some, there is a thing called the law of war. Is it naïve to believe in its efficacy and importance? On the contrary. It is naïve to believe we can wage war without it.

It’s true that non-state actors—guerrillas and insurgents—often disregard it, as those laws are written by the powers-that-be and favor the advantages that they possess. But as the thinker Michael Walzer recently wrote in a cogent essay for the Atlantic, “even the oppressed have obligations,” chief among them, obeying proscriptions against forms of violence that we as a species deem too barbaric even for war.

Then again, those powers-that-be often disregard those proscriptions themselves. 

There are simply things that human beings generally consider beyond the pale, even in combat. Deliberately targeting civilians. Killing prisoners. Taking hostages. The use of land mines or chemical weapons. Rape. Torture. Many combatants break those rules: some aberrantly, in the rogue actions of the proverbial “bad apples”; others regularly, as a matter of deliberate policy. Revolutionary movements blow up train stations and kill all comers. Uniformed air forces bomb cities without regard to civilian casualties. Intelligence officers in the service of various causes engage in “enhanced interrogation techniques.” (Even the term “beyond the pale” itself is freighted, deriving from the 12th century Norman conquest of Ireland, wherein the occupiers differentiated between the “civilized” territory that they controlled, demarcated by a palisade, and the barbaric region beyond it, not to mention the allegedly barbaric people who populated it.)

The atomic bombings of two Japanese cities were acts of monstrous barbarity that, whatever their strategic purpose, can’t plausibly be said to have been aimed at military targets, except in the broadest Napoleonic “total war” definition of the term. That fiction is widely accepted in the US; in Japan, not so much. Even before Hiroshima, during the firebombing of Japan that preceded it, US Army Air Force General Curtis LeMay told his deputy LTC Robert McNamara that if the Allies were to lose the war, he was certain they would all be tried and hanged as war criminals. 

Was that LeMay—the famously cigar-chomping bomber general who was the inspiration for not just one but twocharacters in Dr. Strangelove—acknowledging the savagery of what he and his comrades were doing? Or simply acknowledging that history is written by the winners?

(Fun fact: two decades later, McNamara went on to play a prominent role in another aerial campaign in Asia, one in which the by-then-retired LeMay suggested that we bomb the enemy “back into the Stone Age.”)

The murderousness of the Japanese Empire is often cited as justification for Hiroshima and Nagasaki, as is the calculus of the invasion-that-never-was. We’ve waded into that debate previously in this blog. But neither rationale erases the fact of some 100,000 civilian non-combatants—men, women, and children—annihilated in a matter of collective seconds. Even more horrific, the Final Solution was the most large scale mass murder in human history, unless you want to make a case for Stalin’s pogroms, or the Cultural Revolution. Its perpetrators certainly believed that they too were justified, even if no sane human agrees, nor the verdict of history. 

But I refer you again to who writes it.

No nation that suffered an attack like that of October 7 could reasonably be expected not to launch a military response. Recall, if you will, the American mood on 9/11. Then note that this attack on Israel was far worse, relatively and strategically speaking. But the nature and form of that military response comprises a vast spectrum. Recall also the self-inflicted disaster into which that American response of 22 years ago eventually descended.

The underlying complexity of the Middle East dilemma remains unaddressed (as usual, Adam Serwer is very cogent on the topic), but the horrific acts committed by Hamas cannot be justified as legitimate warfare, no matter the injustice of Israel’s treatment of the Palestinian people. Likewise, the Israeli government’s massacre of innocent civilians in retaliation via indiscriminate bombing, the cutting off of food, fuel, water, and electricity even to hospitals, and the slaughter of Palestinian noncombatants including thousands of children cannot be justified in response. And a chicken-or-the-egg argument about who started the bloodshed, decades, or centuries, or even millennia ago, gets us nowhere. 

None of this is acceptable. 

LINGER ON, YOUR PALE

If keeping up with the news coming out of Israel and Gaza is daunting, being there in the middle of it is infinitely worse. Even from the safety of this side of the Atlantic, it is harrowing to worry about family or friends on the ground there and caught up in this horror, or even just strangers, not to mention the general state of humanity.

The Palestinian journalist Mohammed R. Mhawish writes of this, the fifth war in his lifetime, which he assumes will not be the last. “We Palestinians have been asked to honor the humanity of the civilians killed by Hamas in Israel. I can do that, without hesitation. No civilian deserves to lose their life, and I have all too much experience of the suffering that war inflicts. But I cannot accept that it is right for the humanity of only one side of this conflict to be acknowledged. Three thousand children have died all around me in the past 20 days. Are their lives not worth mourning? Do they deserve to only be remembered as statistics?”

Keeping up with the news coming out of Israel and Gaza is also fraught because it is rife with misinformation and disinformation, both deliberate and accidental (that’s what those terms mean, by the by) and because coverage in the American media is particularly weak, and public dialogue is frequently woefully uninformed. The idiocy of callow college students who think it’s fashionable to chant “from the river to the sea”, and believe that Israel deserves anything it gets, is matched only by the ghastliness of American right wingers far from the fight who think Gaza should be bombed into oblivion, irrespective of civilian casualties. 

Meanwhile, outrage over Israel’s military offensive has been taken as a greenlight by cretinous, old school anti-Semites—who care not a whit about Palestine or the Palestinian people—to do things like spray paint swastikas on the LA apartment building that is home to Renee Firestone, the 99-year-old Auschwitz survivor who is the star of my wife’s 2015 documentary The Last Laugh, a hate crime that happened last week. Amid all the saber-rattling by the GOP, let’s not forget that a party that claims to be staunchly pro-Israel and not anti-Semitic (“We’re not, we’re not, we’re not!”) somehow remains allied with alt-right neo-Nazis and the tiki torch-toting white nationalists of Charlottesville. To be fair, I don’t know whether those particular assholes who vandalized Renee’s home are far left or far right (it could be either), but I do know that the right manages to hate Jews and Muslims in equal measure. Anti-Arab hate is being openly fueled by morons like Fox News’s Jesse Watters, even as a six-year-old Palestinian boy was stabbed to death in Illinois by his own landlord (who also tried to kill his mother). 

Still, there are voices of sanity out there, even in America. Retired Navy chief petty officer, terrorism expert, and erstwhile MSNBC commentator Malcolm Nance, currently serving in the International Legion of the Ukrainian army, had a superb post last week on Twitter—sorry, X—with the lede, “ProTips for newly minted Palestine ‘allies’.” Even more prominently, a BBC interview with the former Israeli peace negotiator Daniel Levy went viral recently, including this exchange:

BBC PRESENTER: The Israelis would say, well look, we are defending ourselves, we are targeting Hamas targets in Gaza. We are trying to put an end to what we believe is a terrorist organization once and for all.

LEVY: Do you really keep a straight face when you say that? These kinds of lies can’t be allowed to pass. 

Do you think terrorist organizations embedded in populations who are denied their most basic rights are ended once and for all in a military campaign? Does that happen in history? Can someone credibly tell me that when the leadership of a country says we are cutting off food, electricity, water, all supplies to an entire civilian population that they’re targeting militants? I’m sorry, these kinds of lies can’t be allowed to pass. And when you tell yourself the lie, it leads to the wrong policy. 

Renegade Democratic presidential candidate Dean Philips got a similar lesson in geopolitics last week when a citizen at a town hall in New Hampshire got him to agree that the KKK are terrorists, then asked why we don’t bomb Alabama.

Levy went on, to the BBC:

If anyone told me that what the militants did on the weekend was a legitimate response to years and years of occupation. I would say no, you’re wrong-headed. You’ve lost sight of humanity and reality. And if anyone tells me that what Israel is doing in Gaza today is a legitimate response to what happened on the weekend, it’s exactly the same. And yet they are saying it, and yet the international community is, and people need to challenge them on it because it’s a lie and we’re war-mongering if we allow them to get away with it.

Levy also published an op-ed in the Irish Times recently, co-authored with the Palestinian human rights attorney Zaha Hassan, begging the “outside world” to “walk Israel back from the abyss” and not “be part of the choir of incitement.” They write: 

We both unequivocally condemn the targeting of civilians, no matter who they are, as a violation of the laws of war. Full stop. International law defines the conduct of war and the parameters for what constitutes legitimate self-defence. It does not say “anything goes” or that one war crime justifies another. It is also clear that occupied people have the right to resist structural violence associated with military occupation – again, within the confines of legal prohibitions.

Here’s what Levy told Mother Jones a week and a half ago:

I’ve simply tried to point out something that should be very simple: One war crime is not met by another. That’s the path to hell, which is precisely the path we’re on now.

Especially at a moment like this, where emotions are so raw, and understandably so, where the temptation is to lash out in all directions, and throw every rulebook and every restriction out the window, doing so is not only going to cause a devastating impact on civilian lives on the Palestinian side—after the already devastating impact on Israeli civilian lives—but it can also take you down such a dangerous, unpredictable, and escalatory path. War is horrific. That’s why there are rules that govern the conduct of war. But even when you play within those rules it’s still horrific.

If you want to take seriously the idea that no one who is a civilian should be targeted without distinction, then you cannot be indifferent to something that is premeditated in targeting civilians in Gaza. There’s an argument that says: Hamas started this, Hamas embeds itself amongst the population, so anything that happens to the Palestinians of Gaza will be laid at Hamas’ door. You cannot cut off water, food, fuel, electricity, medical supplies, humanitarian systems, bomb pretty much indiscriminately, force the relocation of half the civilians in Gaza and say that’s OK. It’s patently not.

PEDICIDE IS NOT WAR

In a conflict like this, extremists on both sides—as the term “extremist” implies—will argue that the sins of the other side are so horrendous that they justify anything and everything in return, even the most horrific acts humanly imaginable. That is a recipe for apocalypse, and nihilism. It is also simply not so. 

So “war crime” is not quite a redundancy, and we would do well to remember why. So long as war remains an instrument of geopolitics, there will be boundaries in how it is conducted, the respect for which—or crossing thereof—demands our attention.  

In the present moment, modern telecommunications allow us to see the horrors of this contemporary war with our own eyes, from the GoPro footage of Hamas attackers to the daily images of the damage from Israeli air raids that have rubblized much of Gaza and killed thousands of civilians, operations that—as I’ve written previously—rob the Netanyahu government of its already suspect claim to any kind of moral credibility. Do we need more evidence of this catastrophe before we say it must stop, and the bellicose voices of war stilled, and efforts toward a workable, just, long-lasting political solution to the region’s deeper problems pursued?

As a number of sane voices have noted, we are beyond lucky that Trump is not President of the United States right now. Notwithstanding his initial praise of Hamas’s allies in Hezbollah and his attacks on Bibi—which, uncharacteristically, he was forced to walk back (that’s how bad they were)—were he in office he would surely be among the biggest hawks advocating the worst kind of criminal response, possibly even an atomic one, and goading Netanyahu toward a wider war in the region. (Not that it takes much goading.) 

But that danger has not passed, because, as we know all too well, Trump might be President yet again. Or as the New Republic put it, “Imagine Handing this F***d-Up World Back to Donald Trump.”

It’s fitting we end with the words of another President, from what seems like some long-lost era eons ago: Jimmy Carter, architect of the 1978 Camp David accords, from his 2002 Nobel Peace Prize acceptance speech: 

“We will not learn to live together in peace by killing each other’s children.”

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Photo: Senior members of the Nazi Party—including Goering, Hess, von Papen, Speer, Streicher, Jodl, von Ribbentrop, and Kaltenbrunner—on trial for war crimes in Nuremberg, 1945.