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Israel, Oppenheimer and the laws of war


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“A date that will live in infamy” was how Franklin Delano Roosevelt described December 7 1941 — the day that Japan attacked America at Pearl Harbor, killing 2,403 US personnel, including 68 civilians.

In response, the US launched an all-out war on Japan that culminated in the use of the atomic bomb. It is widely estimated that about 70,000 people were killed in Hiroshima alone.

For Israel, October 7 2023 is a date that will live in infamy. The Hamas terror attacks killed about 1,200 people, most of them civilians — and more than 240 hostages were taken. Israel’s ferocious response to the Hamas attacks is widely believed, so far, to have killed more than 11,500 people in Gaza.

From the start, Israel has been exasperated by foreign criticism of its actions in Gaza — and has reached back to the second world war to justify its actions. Naftali Bennett, a former Israeli prime minister, reacted with incredulity when, early in the conflict, he was asked about civilian casualties. His response was: “Are you seriously asking me about Palestinian civilians? What’s wrong with you? . . . We’re fighting Nazis!”

Benjamin Netanyahu, Israel’s current prime minister, has reminded western audiences of the mass civilian deaths caused by the Allied bombing of Dresden in 1945. One Israeli minister even speculated about dropping a nuclear weapon on Gaza — although he was swiftly reprimanded.

The moral questions posed by Hiroshima are, nonetheless, very much in the public mind because of the huge success of Oppenheimer. The film shows the father of the atomic bomb having retrospective qualms about its use. But viewers are left to make up their own minds. Was J Robert Oppenheimer right to be wracked by guilt? Or was President Harry Truman right to call him a “crybaby” — for regretting the last act of savagery needed to end a savage war?

Hollywood may be undecided. But international law is clear. The use of nuclear or conventional bombs with the deliberate aim of causing mass civilian casualties would now be classified as a war crime.

This is not a recent view, dreamt up by “tofu-eating wokerati”. The Geneva Conventions of 1949, which made the deliberate targeting of civilian populations illegal, were drafted in response to the horrors of the second world war. They have been ratified by every country in the world.

The Geneva Conventions also make it a war crime to cut off water and electricity to a civilian population in a war zone. That was a threat that Israel made early in the Gaza conflict that it has now withdrawn — although the amount of fuel and water allowed into Gaza remains very limited.

Despite the rhetoric of politicians like Bennett and Netanyahu, the Israeli military argues that it continues to follow international law. The IDF says that its bombing campaigns have all been in pursuit of legitimate military targets, and that civilian casualties are a regrettable consequence of Israel exercising its right to self-defence.

There is no doubt that, under international law, Israel does have a legitimate right to self-defence. That is why comparisons between Israeli actions in Gaza and Russian attacks in Ukraine are glib. Unlike Russia, Israel was attacked.

Under international law, the right to self-defence allows for actions that many observers assume must be “war crimes”. It can, for example, be legal to attack a hospital, if it is being used as a base of operations by the enemy. This was how Israel justified its assault on the al-Shifa hospital in Gaza.

On entering al-Shifa, the World Health Organization described it as a “death zone”. So far, the Israelis have not produced strong evidence that the hospital was indeed a major base of operations for Hamas. But even the storage of ammunition in a hospital, or its use as a firing position, could make it a legitimate target under international law. The strike would only be legal, however, if the military advantage gained was judged to be proportionate to the “collateral damage” to civilians.

Attacks on hospitals are sadly not the unique aberration that many of Israel’s critics believe. A new paper for the Royal United Services Institute in London points out that, this year alone, there have been 855 attacks on medical facilities in 18 conflict zones. Syrian and Russian forces systematically bombed hospitals in Syria, causing mass casualties, and then systematically denied their actions.

It is the scenes at al-Shifa and elsewhere in Gaza, however, that have galvanised world opinion. Even if Israel can convince international lawyers that its actions were legal, many observers will continue to believe they were immoral.

That perceived gap between legality and morality is not uncommon in the history of warfare. In fact, it was retrospective horror at the tactics used in previous wars that often led to advances in international humanitarian law. After the first world war, the use of poison gas was made illegal. The Geneva Conventions were expanded after the second world war and then again in the 1970s, in response to new forms of warfare and weaponry.

Si Horne, a British army doctor and author of the recent Rusi paper, argues that the next change in international humanitarian law should be to “preclude the use of explosive weapons on hospitals”. If that were to happen, some lasting good might yet emerge from the tragedies in Gaza.

gideon.rachman@ft.com





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