Acts Harmful to the Enemy

Civilians are innocent, they have done nothing to make themselves liable to be killed. That war entails their killing, in vastly greater proportion to the killing of combatants, often under the color of law, means that our primary concern should always be on evaluating the justness of the cause of war—whether a given war can be justified at all in the face of the manifest immorality of civilian death—not the legality of the inevitable slaughter that follows.

Within the paradigm of international humanitarian law, waging a revolutionary war will always be illegal

At approximately 3 AM on the morning of November 15, six Israeli Defense Force tanks and around 100 commandos stormed the grounds of the Al-Shifa hospital in Gaza City. The raid was a relatively anticlimactic conclusion to a multi-day siege, during which IDF forces surrounded the complex and engaged in what they described as “clashes” with Palestinian resistance fighters. The purpose of the raid, it seemed, was to use the threat of mass civilian casualties to draw the Al-Qassam Brigades—Hamas’s military wing—into a larger confrontation. (In the hours before the Israeli encroachment, IDF snipers shot patients through the hospital’s windows.) But no major battle ensued, and eventually the troops just walked in.

In advance of the raid, Israel and the United States had hyped up the military importance of Al-Shifa, calling it Hamas’s command and control center in the Strip and implying that hostages were being held underneath the hospital. National Security Council spokesperson John Kirby discussed independent US intelligence purporting to confirm Hamas activity at Al-Shifa and Western analysts and commentators revived reliable tropes about “human shields,” while Israeli propaganda videos featured a literally cartoonish underground lair full of weapons depots and meeting rooms. As many around the world looked on at what by all appearances was an unthinkable evil—an advanced military power targeting a medical facility full of the already besieged and maimed—these claims continued to circulate in the Euro-American press. The effect was an ideological one-way mirror: Gazans could see out, but observers in the West could see only their fantasies of war reflected back at them.

Under international humanitarian law (IHL), it is illegal to intentionally target medical facilities. But as supporters of Israel’s assault have been quick to point out, if those facilities are used by combatants in the commission of “acts harmful to the enemy,” they lose their protected status. Of course, the principles of proportionality and noncombatant immunity still apply regardless of whether the building itself is protected, but that single turn of phrase—acts harmful to the enemy—was enough to obscure the souls trapped within. And in material terms, it carried the day: the IDF deemed the Palestinian presence in the hospital a harmful act—as they had for the Palestinian presence throughout northern Gaza.

The soldiers didn’t find any hostages inside the compound. Instead there were thousands of civilians sheltering at Al-Shifa: patients, medical staff, and others seeking refuge and trying to wait out the siege as their meager supplies dwindled to nothing. Earlier that week, fuel that had been powering generators had run out completely, killing five patients, including one premature baby. And in the weeks before the raid, many Palestinians had died at the hospital from the full variety of this war’s lethal horrors: airstrikes, bullets, infection, deprivation of medicine, pain. In the hospital’s courtyard, the soldiers found a mass grave. By at least one account, they exhumed the grave and took away more than a hundred corpses, only to return them days later via the Red Cross in fresh, blue body bags to be buried in a newly dug trench. Were they searching for evidence of Al-Qassam fighters among the dead?

In the hours after the raid, the IDF’s public relations team set out to justify the operation, releasing a video walkthrough of the facility purporting to show evidence of its military function: a “terrorist grab bag,” some small arms, a couple of uniforms, a box of dates, and so on. The video was widely mocked, and media outlets that had uncritically repeated US and Israeli talking points about the hospital days earlier began to cast some doubt on the military’s claims. By that point, though, the raid was completed and the evacuation was underway. Israel held firm control over the hospital, which was now fully out of commission. And in any case, there were other hospitals—and schools, and refugee camps—to target in the north of the Strip. Only a few days later, the IDF abandoned the site entirely, making sure to destroy generators and medical equipment on their way out.

Israel’s critics loudly decried the Al-Shifa raid as a war crime. The accusation joined a litany of others launched at the state as journalists, scholars, politicians, and activists—on the ground and abroad—invoked the law of war as an attempt to constrain the devastation in Gaza. But by any metric, these attempts have failed. International humanitarian law has not prevented the carpet bombing of residential neighborhoods, the use of white phosphorus, the death of more children than it is sensible to describe, and the endless trauma, which will last generations. There are no standing adjudicative bodies with both the authority and the power to regulate state action, and even if there were, it is not clear what IHL could offer in the case of Palestine. IHL was crafted by state powers to regulate wars between them; it is, in many respects, fundamentally antagonistic to a stateless national movement fighting for liberation.

International humanitarian law operates principally as discourse, providing a ready-made language and a set of ethical limits for evaluating political violence. Unlike its regulatory function, which is weak, its sense-making function is quite robust: all parties to the war in Gaza have appealed to it. Since October 7, Palestine advocacy groups have called upon the International Criminal Court to issue arrest warrants for prime minister Benjamin Netanyahu and other Israeli top brass and to investigate Israel for committing war crimes, as well as the crimes of apartheid and genocide; US politicians from Bernie Sanders to Joe Biden have called for Israel to abide by IHL; and Netanyahu has made public assurances that he is doing so.

While the formal rules of IHL have been elaborated through centuries of state practice, case law, and scholarship, they became codified in their modern form after World War II, when they attained ideological hegemony. Despite its codification, the law—and to a greater extent, the philosophical principles underlying it—has also been the subject of significant debate. In Just and Unjust Wars, published in 1977, American political theorist Michael Walzer wrote a famous defense of these philosophical principles and the abstract expressions of the basic rules upon which the law, in its greater complexity and specificity, is based. Together these foundations make up what he calls the “war convention.” Walzer’s methodology is historical, not legal, and he is less interested in the rules as codified than in inferring a general set of conventions from examining state practice, professed ideals, and historical precedent. The moral justification of this framework—the aim of Walzer’s book—is referred to as Just War Theory.

The war convention is defined by three key principles. The first principle, which operates as a sort of umbrella concept for the other two, is the separation of jus ad bellum, the causes for which a state may go to war, from jus in bello, permissible conduct in war. Since the adoption of the UN Charter in 1945, jus ad bellum has become co-extensive with the right to self-defense.1 Articles 2 and 51 of the Charter make it clear: States shall settle disputes diplomatically and shall refrain from the use and threat of force, though they retain the right of self-defense. It is because only defensive wars are legal that all wars are framed as defensive: Compare the justification of the 2003 US invasion of Iraq on the grounds of “pre-emptive self-defense” with the Iraqi military effort to resist that invasion.2

Walzer, writing against the backdrop of the American defeat in the genocidal war in Vietnam—the only war, we should add, that he seems to have opposed—gave the right of self-defense the following gloss: “the defense of rights is a reason for fighting. I want now to stress again, and finally, that it is the only reason . . . for it is only by virtue of those rights that there is a society at all. If they cannot be upheld (at least sometimes), international society collapses into a state of war or is transformed into a universal tyranny.” Thus the jus ad bellum calculus is not only a question of defense as such, but of a defense of the rights that hold society together.

Jus in bello, by contrast, is the law governing military conduct within war: the ban on chemical weapons, the prohibition against the torture of prisoners of war, and so on.  According to Walzer, the independence of jus ad bellum from jus in bello means that a just war can be fought unjustly, and vice versa.

As a consequence of this separation, Walzer understands soldiers to fight as moral equals. According to his “moral equality thesis,” although people begin, by default, with the right not to be killed, in consenting to be “made dangerous” the combatant loses this right in exchange for a license to kill in turn. But, because the combatant is made dangerous—that is, put into service of the collective and not acting as an individual agent—the responsibility for their conduct, within certain limits, lies with the state. They thus enter the battlefield as moral equals engaged in the mutual enterprise of killing, abstracted from the reasons why.

The second major principle of the war convention is the principle of distinction, according to which states must distinguish between combatants and non-combatants in war. Distinction follows directly from the moral equality of soldiers, who, by electing to engage in hostilities, open themselves to legitimate use of force. Meanwhile, unless they make themselves a party to the conflict by taking up arms, civilians enjoy the privilege of immunity.

The third is the principle of proportionality, which holds that states must balance the military necessity of a particular action in war against the potential for the loss of civilian life. Per Walzer, the doctrine of double effect as applied to war historically holds that an action is permissible so long as: 1) the act is either good in itself, or neutral—i.e. it is a legitimate act of war; 2) the effect of the act advances the cause of war, such as the killing of enemy soldiers; 3) the actor only intends to achieve the permissible effects of his action; and 4) the permissible effects compensate for any evil effects that also result from the act. Walzer makes one amendment to the third premise: The actor must seek to minimize the evil and must accept costs to herself in order to do so. Walzer recognizes the permissiveness of the classical version of the argument, and his proviso suggests that combatants must make use of the least damaging means in order to satisfy the proportionality requirement.

Functionally, these principles operate in sequence as a two-part inquiry into the subjective intent of the attacker (distinction) and the attack’s objective harms (proportionality). Distinction operates as an initial threshold test (have you targeted the right people?) before questions of so-called “collateral damage” or “incidental” civilian harm can be addressed. Intentionally targeting civilians in the first instance renders the question of proportionality moot—regardless of the harm actually wrought by an attack, the attack will be ex-ante illegal. The problem, as was recently demonstrated in a superb and lucid intervention by legal scholar Luigi Daniele, is that militarily advanced states such as Israel are almost always presumed to satisfy the distinction principle, meaning that the thrust of the substantive analysis happens on the much more permissive terrain of proportionality.3 By contrast, non-state actors such as Hamas presumptively fail the distinction principle and thus never make it to any proportionality analysis. This is the case even where, as IDF personnel freely admit, the civilian casualties of its strikes are both foreseen and welcome. What’s more, Israel’s use of large-payload munitions in densely populated urban areas fails the distinction test in the same way that the use of, say, nerve gas also fails distinction. The comparison is instructive: if one were to release nerve gas into an urban area with the intent of killing only soldiers, reasonable observers, and indeed the law itself, would dismiss the intent as irrelevant in the face of the inherently indiscriminate nature of the weapon. Likewise, Israel’s use of 2,000-pound “dumb bombs” (i.e. non-guided bombs) in Gaza —each with a lethal fragmentation radius of roughly 1,200 feet—violates the principle of distinction. But decades of ideological work—the dehumanization of Palestinians and the related lionization of Israel as “the world’s most moral army”—have rendered the idea that Israel (or other Western state-actors) would violate the principle of distinction unfathomable. Thus even the use of these munitions is evaluated on the terrain of proportionality.

Just War Theory maintains a hegemonic hold over mainstream understandings of the ethics of political violence—but it is not without its critics. Adherents of so-called revisionist Just War Theory point out that the reality of war, which is always first and foremost a war against civilians (in a quantitative sense, but also, as in Gaza, in a qualitative sense), does not comport with the idealized framework laid out in Walzer’s moral equality thesis: if all combatants are moral equals, combat—“politics by other means”—is evaluated on a formal rules-based approach, which requires no inquiry into its causes.

As revisionist Lionel McPhersen writes, “Given a state’s legitimate authority, Walzer believes, any choice combatants have about whether to fight ‘effectively disappears as soon as fighting becomes a legal obligation and a patriotic duty.’” The moment war is declared, soldiers become mere cogs in the killing machine, absolved from moral reasoning by their subsumption in the political collective. But this assumes that legal obligation and patriotic duty are in some sense the same as—or override—moral consideration. If we agree that an unjust cause can be neither good nor neutral, then the good or neutral aim on which the doctrine of double effect depends is spoiled ex-anteeven if soldiers are not responsible for the justness of their cause, they cannot permissibly kill opposing soldiers, let alone civilians, without intending evil. Following revisionist scholar Jeff McMahan, we can illustrate the point by drawing an analogy to the domestic sphere. If a man were to enter a mall and commence killing shoppers, he cannot permissibly invoke the right of self-defense when confronted by someone attempting to stop his onslaught. That is, because of the immorality of his cause (mass murder of people at the mall), any action he undertakes in furtherance of that cause or in response to those trying to stop him is immoral and impermissible as well. According to IHL, soldiers engaged in an unjust war can legally kill opposing soldiers, but in truth they are morally akin to the mall shooter—their cause is unjust, and thus they cannot morally kill those attempting to thwart its success.

When we recall that the vast majority of victims in wartime are civilians—according to an EU report, civilians accounted for around 90 percent of all wartime-related casualties between 1990 and 2000, and in 2022, the UN found exactly the same proportion of civilian casualties when explosives were used in urban areas—the objection gains even greater force. Civilians are innocent, they have done nothing to make themselves liable to be killed. That war entails their killing, in vastly greater proportion to the killing of combatants, often under the color of law, means that our primary concern should always be on evaluating the justness of the cause of war—whether a given war can be justified at all in the face of the manifest immorality of civilian death—not the legality of the inevitable slaughter that follows. An inordinate focus on jus in bello obscures the weakness of IHL’s constraints on the killing of civilians, while a clear-sighted acknowledgment of this impotence is implicit (at least, to a greater degree) in the ethical and legal framework of jus ad bellum. The moral equality thesis only serves to transform IHL from a constraining set of rules into an amoral discursive tool that elides the moral discrepancy in opposing causes in favor of the formal equality of legal disputes.

Walzer’s theory, and the law of war it supports, is most suited to war between hypothetical states. Our world, however, is composed of actual states in geopolitical relation to one another—and to subnational and extranational political formations. Broadly, these form a world-system that has the United States at its core. This has granted the United States a unique ability to extol the virtues of a “rules-based international order” while simultaneously exempting itself from the various obligations that comprise such an order: the US refuses to sign onto the major human-rights treaties, launches wars of aggression without permission from the Security Council, and tortures prisoners of war.

As the major geopolitical ally and regional proxy force of the US, Israel has benefited tremendously from the broad umbrella of US exemptionalism. Like its benefactor, Israel has also refused to ratify the Rome Convention of the International Criminal Court, routinely engages in torture and arbitrary detention, and violates the sovereignty of neighboring countries at will. But whereas the US, as the self-appointed enforcer of the global order, must at least pay lip service to institutions it claims to lead, Israel, as a bit player (albeit an important one) is under no such obligation. Instead, Israel routinely castigates and denigrates the entire patchwork of international bodies—from the United Nations and the ICC to the global network of NGOs that have, for better or worse, sprung up around them. In so doing, Israel is not just seeking to exempt itself from these institutions’ oversight. Nor is it merely challenging these institutions’ legitimacy. Rather, it is challenging the very idea of international oversight and comity altogether. When its supposed enemies in the UN correctly accuse Israel of committing war crimes or the crime of apartheid, Israel sees only games of realpolitik. To condemn Israel on the terrain of international law is to wage a battle that has already been lost. At once Israel retorts: we follow the law, and also there is no such thing.

The contrast between Israel’s antagonism to the institutions, treaties, and juridical bodies that make up the international legal order and its stated commitment to international law has produced bizarre discursive loops for a US political elite scrambling to justify the current war effort. Proposals to condition aid to Israel on its actual adherence to international law—or even just to enforce the Leahy Law against Israel, which prohibits the Department of Defense from allocating funding to any state credibly found in gross violation of human rights—are considered political nonstarters. In fact, the US does not track which weapons go to which military units in Israel—the only country in the world with such an exception—making effective enforcement of the Leahy Law functionally impossible, even in theory. On top of these special dispensations, the Biden Administration has sought to make it easier, both legally and politically, to arm Israel: it has hidden its ledger of arms transfers from public view and moved to lift all restrictions on Israeli access to US regional weapons stockpiles.

The Palestinian national movement is likewise exempted from the framework of international law, not by recusal but by exclusion. Decades of Israeli state policy has had as its principal objective the prevention of a sovereign Palestinian state and Palestinian entrance into the community of nations. With the help of the United States, Israel has largely succeeded—Palestine is not a member state of the United Nations and does not have standing to petition many international bodies. Where the state is recognized, Palestinian national formations are marginalized: the chief prosecutor of the International Criminal Court Karim Khan recently referred to Hamas as a “terror organization” in a formal communique.

But “terror organization” is an empty signifier—it tells us nothing about the designated group, but quite a bit about the speaker. It tells us, for instance, that the speaker is mired in a framework that separates distinction and proportionality to such a degree that the former becomes folded into the latter. It tells us that the speaker views state action as presumptively legitimate and action by the oppressed as presumptively illegitimate. Hamas’s rocket attacks on Israel are, by virtue of the crude technology available to them, inherently indiscriminate. Israel’s attacks on Gaza, by virtue of the density of the population and the massive payloads of the US-supplied bombs, are inherently indiscriminate as well, but despite the functional impossibility of “only targeting military personnel” this is indeed Israel’s stated intention—one that is believed, or at least rarely debated in the West. Israel’s attacks are, like Hamas’s, intended to strike fear into a civilian population, but unlike Hamas’s rocket attacks—which, though targeted at civilians, cause minimal damage when they manage to land inside Israel—Israel’s bombing campaign is also intended to kill civilians and destroy civilian infrastructure in untold magnitude. Hamas, like Israel, has claimed that it only targets military personnel, and, like Israel, facts on the ground would demand we do not believe this claim. But, in Palestine’s exclusion from IHL, Hamas does not benefit from the obfuscating discourse of proportionality. As a result of the inordinate focus on jus in bello in IHL discourse, the justness of the Palestinian cause is overshadowed and erased by the illegality of its means. Israel, however, continues to benefit from the presumption of legality in its conduct (despite all evidence to the contrary), and thus the injustice of its cause is rarely called into question.

The attack launched by Al-Qassam and other Palestinian resistance groups on October 7 was an explosion of violent force anticipated by many, but a surprise to all, including Hamas’s political leadership. Early in the morning, over a thousand militants, as well as a number of civilian Palestinians who followed afterward, broke through the militarized wall separating the besieged Strip from southern Israel under the cover of a barrage of rockets with the aid of targeted drone strikes on IDF surveillance infrastructure. They then seized the surrounding military bases, killing or taking captive the soldiers within, and seeking out key intelligence and weapons depots.

At the same time, other militants took territorial control of kibbutzim near the bases via targeted raids. This was in part to ward off an immediate Israeli counteroffensive and in part to capture civilian hostages with which to negotiate a withdrawal to Gaza—and eventually prisoner exchanges. Many of the Palestinians unaffiliated with armed groups who entered Israel through the openings in the barricade also committed acts of violence against Israelis, some of them gruesome. In all, it was a very bloody operation, with Israeli casualty counts from that single day roughly totaling those of the five-year Second Intifada: 373 soldiers and security personnel and 766 noncombatants were killed (71 of them foreigners). The militants took around 240 Israelis and foreign nationals captive, including both military prisoners and civilian hostages.

Some uncertainty remains as to the details of the attack. A large portion of the civilian casualties took place at a rave three miles beyond the barrier, in Kibbutz Re’im, near the location of the IDF base that headquarters its Gaza division. Al-Qassam likely did not have foreknowledge of the event, which had been shifted to the Re’im kibbutz from another location only two days earlier, and the confrontation was extremely chaotic. Reports suggest the Israeli air forces responding to the attack mistakenly fired on fleeing civilians. Elsewhere, the IDF shelled homes with both Palestinian militants and Israeli hostages inside. However, these friendly fire incidents likely account for a marginal portion of the total casualties, and it’s evident that Palestinian militants committed war crimes during the assault, including the intentional killing of noncombatants—some executed at point blank range—and the taking of civilian hostages.

The condemnation of the Western world was ubiquitous and immediate: this was an act of terrorism. US commentators were quick to draw analogies to the September 11 attacks, including via casualty arithmetic to show “how many 9/11s” the Israeli population had suffered.  But for many, the comparison didn’t land. The initial images that made it to social media were of bulldozers demolishing the barrier between Gaza and Israel, Palestinians celebrating on commandeered tanks, and young Palestinian militants paragliding into lands their grandparents had been exiled from seventy-five years prior. Even as the more gruesome images surfaced, along with information on the scale of violence, observers across the colonized world recognized the attack as an insurgency of the oppressed.

Walzer argues that the only permissible cause for war is the defense of rights. But what does this mean for those who have none to begin with? In spite of Hannah Arendt’s antipathy to revolutionary movements, her account of the “right to have rights” in the Origins of Totalitarianism is instructive. Writing in the wake of the Shoah, Arendt prefigures the current predicament of the Palestinians: “The calamity of the rightless,” Arendt writes, “is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law . . . formulas which were designed to solve problems within given communities—but that they no longer belong to any community whatsoever. Their plight is not that they are not equal before the law, but that no law exists for them.”

The Palestinians, particularly of Gaza, have in the place of law only a condemnation to rightlessness in perpetuity—an inescapable hell. Rhetorical invocations of human rights ring hollow for precisely this reason. Israel’s genocidal campaign seeks to accomplish the same feat as all genocidal campaigns before it—the reduction of a people to their bare humanity, to their biological existence. It is a testament to the Palestinian people, however, that, despite decades of subjugation and ghettoization in intolerable conditions this aspiration has not been realized.

Within the paradigm of IHL, waging a revolutionary war will always be illegal. It is, by its very nature, an offensive action against an existing political order with the aim of overthrowing that order. It will not be conceived as self-defense, because it breaks with an intolerable and naturalized status quo—which is precisely what the right of self-defense is here invoked to defend.

As Walzer acknowledges, “the first principle of the war convention is that, once war has begun, soldiers are subject to attack at any time (unless they are wounded or captured), regardless of whether they are actively engaged in fighting or whether they are bathing or playing soccer.” Many imagine that the war against the Palestinians was settled in 1948, occasional flare-ups notwithstanding. This elides the experience of Palestinians, for whom the war never ended. Indeed, what Israel experiences as extended periods of calm manifests as uninterrupted siege warfare for the Palestinians of Gaza. Both Israel and the West are only able to ignore this state of war because Palestinians have been so thoroughly dehumanized that their brutal subjugation has been naturalized. To break from this order is violence, to maintain it is peace.

In Palestine the ordinary workings of life have been replaced by the rule of violence—which takes the form of murder, of dispossession, and of the daily violations to dignity of living in subjugation. Revolution begins from a position of extremity. The alternative to revolution is surrender. But as Walzer writes, “Surrender is an explicit agreement and exchange . . . a government promises that its citizens will stop fighting in exchange for the restoration of ordinary public life.” If the intolerable condition to be overturned is precisely ordinary life itself, however, surrender presents the same prospects as loss in battle: death, dispossession, subjugation. To fight, then, is a choice forced upon the Palestinian people by the severity of their situation.

Some, primarily on the left, are willing to cede the justice of the Palestinian cause for war, but demand that such a war be waged according to the principles of jus in bello, and condemn the October 7 attack as a failure to do so. By neglecting to abide by the principle of distinction and by taking civilian hostages, this argument goes, the Palestinian militants abdicated their moral duty. The problem with this approach is that it condemns the Palestinian resistance—a cause it presumes just—to military failure, while simultaneously holding it to a higher standard than a conventional armed force. No doubt, the Israeli military force is far more technologically capable and well-armed than the resistance. But beyond that, Palestinians are fighting against a state with an entire hostage-taking apparatus and an entire land-theft apparatus that never enter the jus in bello calculus. This is what it means to have a state at all: to control a machine that congeals the contingencies of political violence into facts around which all actors must navigate. As such, when Palestinians take hostages used to exchange for a pause in the bombing, for the entrance of aid, and for the release of prisoners in Israel, they are committing war crimes; while when Israel rounds up Palestinians, holds them in administrative detention, and beats them they are merely abusing their policing authority. This is the qualitative asymmetry of war between a stateless population—for whom all political violence is a form of war—and an advanced military power, which can literally pick its battles. (Walzer’s attempts to theorize asymmetrical warfare in Just and Unjust Wars were plagued by a willful ignorance to the monstrous violence of the status quo, and his attempts to theorize it further have been even more blinkered by his continued hand-wringing and his teary-eyed commitment to Zionism and American Empire.4)

The reason that the US and Israel are capable of violating the requirements of IHL without consequence has everything to do with their position at the top of the global balance of power. A national liberation struggle, like the one in Palestine, seeks to upset this balance such that the laws of war and the protections they provide can actually be realized. This is not to endorse a violent race to the bottom—there are always limits on conduct—but rather it is a call to recognize that the limits as they are currently invoked condemn entire peoples to the rule of violence, to a life beyond the very limits that the law purports to set.

The question of how to justly wage revolutionary violence touches on several lacunae in the Marxist tradition—ethics as such and military strategy are undertheorized on the left—and the two formulations we have on hand, namely “by any means necessary” and “according to the law of war,” are unsatisfying: the former because it sidesteps ethics, and the latter because it sidesteps the question of national liberation. If we are to move beyond merely understanding why political violence occurs toward the construction of a just world as a positive, post-imperial project, we will ultimately need to seize international law, or an aspirational version of it, for our own ends.

This requires reckoning with the inadequacy of the legal form, not just as a weak deterrent, but as a framework for liberation. “Only because there is no escape from hell,” Walzer writes, “have we labored to create a world of rules within it.” The presumption of symmetry in IHL means that the hell presupposed here is a cyclical event between sovereigns and not an enduring structure imposed on the oppressed. Any effort to abolish this structure, not in the utopian sense imagined by Walzer—a war to end all wars—but merely an escape from hell as a structure—in a word, decolonization—will necessarily stand outside the boundaries of the law entirely.

Those who refuse to face this directly remain discursively trapped in a double bind: Palestinians, so long as they engage in lawful but futile resistance, or better yet, appeal directly to noblesse oblige, are perpetual victims worthy of sympathy and support. But as soon as they transgress, they transform into barbarians, motivated only by bloodlust and incapable of rational political action. It is this whiplash that has carved divides in left-liberal spaces of the Palestine solidarity movement. Oppressed Palestinians, for their part, have no legal infrastructure within which to adjudicate their claims, and are thus at the mercy of the legitimating power of the colonizer’s courts. In order to take seriously the contention that the colonized must author their own liberation, we must admit that neither the terrain nor terms of struggle will be legal.

None of this is to suggest that the law cannot be useful, or that we should abandon legal discourse entirely. Like the Palestinians trapped in Gaza and those under occupation in the West Bank, the Palestinian diaspora and the solidarity movement are constrained to the political tools available to us. That the US and Israeli governments pay lip service to international legal obligations presents discrete opportunities to make demands on those terms. Petitioning international institutions is another available avenue of political pressure, as is pursuing individual arrest warrants in foreign countries under the theory of universal jurisdiction. But these arguments and claims should be put to specific ends in specific fora. In other words, the law must be placed in service of the cause of liberation, and not the inverse.

Not every action taken under the banner of a just cause is necessarily just—nor does every act of revolutionary violence advance the cause of liberation. Making those political assessments and moral judgments requires disaggregating the actions of the various actors, both militant and vigilante, and situating them in their proper context. The discourse of international law—which on the one hand legitimates the horrors of conventional warfare, and on the other criminalizes revolutionary violence—makes a sober evaluation of these questions incredibly difficult. Unlearning its dogma will be an essential task of just worldmaking in the denouement and afterlife of the US empire.

Until the law can prove itself operative, it is incumbent upon those seeking Palestinian freedom to cut through the pablum and the false invocations, and to rescue from its discourse only what is useful. “The question of legality or illegality reduces itself,” Georg Lukács writes, “to a mere question of tactics.” Or, as legal scholar Robert Knox prescribes, “What must be pursued is a ‘principled opportunism,’ where—in order to undercut the individualizing, legitimating perspective of law—international law is consciously used as a mere tool, to be discarded when not useful.” Because until Palestine is free—indeed, until the world is free from the international order that produces so many Palestines across the globe—the discourse of the law will function best as a salve to soothe the sharpest pains of the oppressed at the cost of muting their loudest protestations. Liberation will require something more.

  1. The only exception to this is the Security Council authorization for the use of force, which is held to be valid only when used “to maintain or restore international peace and security.” 

  2. There is an extensive and contested legal edifice dedicated to jus ad bellum questions—can non-state actors invoke the right of self-defense? Can states invoke it against non-state actors? How does occupation complicate the matter?—that we have elided here. But as the legal scholar Marko Milanovic recently wrote in an essay on the pertinence of jus ad bellum to the war on Gaza, “This is one of those cases in which lawyers should not overly emphasize the law’s relevance or importance. This is one of those cases in which, in my view, ethics provides a clearer answer than the law.” 

  3. https://www.ejiltalk.org/a-lethal-misconception-in-gaza-and-beyond-disguising-indiscriminate-attacks-as-potentially-proportionate-in-discourses-on-the-laws-of-war/ 

  4. https://quillette.com/2023/12/01/gaza-and-the-asymmetry-trap/ 

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