What is war? Why the Israel-Hamas War is an “Unlawful” War

It is reported that more than 20 thousand people lost their lives on both sides in the conflicts that started after the attacks by the elements of the Izz al-Din al-Qassam Brigades, which constitute the armed force of Hamas, in the form of land, air and sea raids on Israel on October 7, 2023, and continued for more than two months. The statements were reflected in the media. (1) In addition to the human tragedy reflected in the figures, the destruction of today's universal values, which advocate that "every human being has the right to live, regardless of the color of his skin, ethnic origin, religion or sect" (2), has also occurred as a result of the division of the international community. It is thought that the blurring of concepts that serve to concretize abstract ideas in order to support political aims is as effective as other factors in this division.

With these thoughts, in this article, the accuracy of calling the asymmetric conflict methods between Israel and Hamas as war is brought up for discussion. General definitions of war were chosen as the starting point. One of the frequently cited definitions of war belongs to Prussian General Clausewitz and is that it is 'a tool involving physical force used in the continuation of policy in order to impose demands on the other side'. (3)

According to the Mobilization and State of War Law of the Republic of Turkey, war is "the use of the state, especially military force (use of physical force), in order to ensure the survival of the state, to ensure national interests and to achieve national goals (imposing the national policy on other parties). "It is an armed struggle that requires the use of all material and spiritual power and resources without any restrictions." (4)

The definition of the concept of war, defined with these expressions in domestic legislation, within the scope of international law can be found in the decision of the Former Yugoslavia War Crimes Tribunal. Accordingly, war is "the situation that occurs when armed force is used between states or when conflict occurs between government forces and organized armed groups." (5)

After these definitions of war, chosen from many different definitions, the question "Is every use of armed force war?" question may be asked. It appears that there is no consensus on the answer to this question. However, it is possible to come across some accepted criteria in some studies. For example; The project group called 'Correlates of War', which includes statistical studies on war, determines as criteria that armed conflicts must be organized, continuous, large-scale and result in at least a thousand deaths per year. (6)

Although these criteria seem sufficient for a project, the most important criterion for an armed conflict to be considered a war under international law is the "declarations of the conflicting parties that their aim is clearly to fight (animus belligerandi/animus belli)" and the statements of third parties do not have any legal meaning. Pazarcı continues from here and shares the opinion that "unless at least one of the parties considers it war, all types of armed conflicts should be considered as response to armed damage or armed interference that does not amount to war." (7)

From the statements shared so far, it is understood that it is possible to call the armed conflicts between Israel and Hamas as war. It is understood from the statement made by Israeli Prime Minister Netanyahu on the same day as Hamas' attacks, which he called the "Aqsa Flood", that the most important criterion "the requirement that at least one of the parties should qualify the conflict as war" has been met. Netanyahu “…we will win this war no matter what the cost.” He openly described the conflicts as war (8) and after these statements, "Operation Iron Swords" was put into practice by the Israel Defense Forces. The fact that the conflicts are taking place between armed forces with an organization, that the intensity of the violence has exceeded a certain level, as can be seen from the number of casualties, and that it is continuous, except for the seven-day period given for a humanitarian break, supports the idea that it is appropriate to call the witnessed drama a "war".

Although the ongoing armed conflicts between Israel and Hamas can be described as war, what has been witnessed indicates that this war is not being conducted ethically. For example, according to Thomas Aquinas (12425-1274 A.D.), in order for war to be ethical, the doctrine of just war (justum bellum) must be applied. In addition to the criteria of having justified reasons and being carried out by a legitimate authority, the requirements of the just war doctrine are that it must have good intentions, especially to prevent unnecessary suffering of civilians. (9)

Based on the doctrine, both sides have their own justified reasons. Hamas, Israel's military presence on Palestinian territory since 2006 It regards the situation as an occupation and argues that the ongoing blockade is against international law. For this reason, as an actor with the status of a "fighter" (10) against the occupying forces, it has the legitimacy to launch an armed attack to defend the rights of its people. Israel, on the other hand, declares that it uses its right to self-defense, which is a natural right under Article 51 of the UN Charter (11), in the face of armed attack (even though it is open to question whether self-defense meets the criteria of necessity, proportionality and time).

From here, it is understood that even if it is accepted that both parties are legitimate authorities and can provide justified justification, the main problem actually arises from the parties' "lack of good will". A summary of the search for good will in the just war doctrine can be found in the words of the Great Leader Atatürk: "War must be essential and vital, war is a murder unless the independence of the nation and country is endangered." is the expression. Even if the just war doctrine is applied similarly to this statement, the concept of war began to have a pejorative meaning, especially after the events of World War II. However, long before this war took place, Alexander Berkman (1870-1936), one of the pioneers of the anarchist movement, made a determination that war is "blind obedience, thoughtless stupidity, ruthless apathy, wanton destruction and irresponsible murder" (12).

Today, the Russia-Ukraine and Israel-Hamas Wars show the face of Berkman's determination reflected on the screens. It can be understood from recent developments that the Russia-Ukraine War turned from an absolute war into a real war due to the adverse effects that Clausewitz conceptualized as the fog of war and friction. However, there is an expectation that the friction effect in the conflicts between Israel and Hamas will begin with the USA withdrawing its support for the war. In other words, unless the pressure from the US and the international community increases, it is thought that the conflicts between Israel and Hamas will continue on the level of real war, and the ugliness of war will continue to be witnessed.

The fact that the parties prefer asymmetric methods involving difference, superiority and (illegitimacy) supports this idea. In short, the Israel-Hamas War is an "UNFAIR" war involving asymmetrical methods. In particular, Israel's use of disproportionate force regardless of target fits better with the definitions of massacre and genocide. In order to support this conclusion, the inferences made about the actors of the war, their aims and war methods were left to subsequent articles.

Footnotes

(1) More than 1,200 Israelis and people of different nationalities died on October 7, 2023, when the attacks took place. As of December 15, 20023, the number of Palestinians who lost their lives as a result of Israeli attacks is more than 17,700. In addition, 430 soldiers of the Israeli Army were killed, 102 of whom were during the land invasion process. TRT News, “Israeli army: 430 of our soldiers have died since October 7”, 11.12.2023. [Access Date: 16.12.2023].

(2) Universal Declaration of Human Rights, Article 2 “Everyone is entitled to all rights set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. can benefit from all rights and freedoms. “, Article-3 “Every individual has the right to life, liberty and personal security.”, https://www.ohchr.org › files › Documents › trk

(3) Carl von Clausewitz, On War. trans. H. Fahri Çeliker, (Istanbul: Alfa Yayıncılık, 2018), 29.

(4) Mobilization and State of War Law. (1983, 08 November). Law No. 2941. Official Gazette (Issue: 18215). https://www.mevzuat.gov.tr/MevzuatMetin/1.5.2941.pdf [Access Date: 13.12.2023]. The expressions in parentheses belong to the author.

(5) Haldun Yalçınkaya, War: The Use of Force in International Relations. (Ankara: İmge Publishing House, 2008), 31.

(6) Kristian Skrede Gleditsch, Civil War, https://www.britannica.com/topic/civil-war [Access Date: 16.12.2023]. Meredith Reid Sarkees, “The Cow Typology of War: Defining and Categorizing Wars,” The Correlates of War Project. https://correlatesofwar.org/data-sets/cow-war/, [Access Date: 16.12.2023].

(7) Hüseyin Pazarcı, International law (16.bs.). (Ankara: Turhan Kitapevi Yayınları, 2017), 503.

(8) Israeli Ministry of Foreign Affairs, Statement by Prime Minister Benjamin Netanyahu, 07 October 2023, https://www.gov.il/en/departments/news/statement-by-pm-netanyahu-7-oct-2023 [ Access Date: 16.12.2023].

(9) Erol Kurubaş, “Transformation of World Politics and the Age of International Relations”. Introduction to International Relations, 7.bs., (ed.) Şaban Kardaş and Ali Balcı, (Istanbul: Küre Publications, 2017), 18.

(10) Conditions for combatant status; “(1) The rebel armed forces and groups must be under the authority of a responsible commander, (2) The said forces and groups must comply with Article II of the Geneva Conventions dated 1977. may require compliance with the legal rules of armed conflict contained in the Protocol 

(3) The mentioned forces and groups must have control that allows them to carry out continuous and regular military actions in a part of the relevant state's territory", Pazarcı, ibid., 510.

(11) UN Charter, Article 51. “Nothing in this Charter shall prejudice the inherent right of a member of the United Nations to individual or collective self-defense if it is the object of an armed attack, until the Security Council has taken the necessary measures to maintain international peace and security.” "It does not cause harm."

(12) Wikiquote, Alexander Berkman, https://tr.wikiquote.org/wiki/Alexander_Berkman [Access Date: 16.12.2023].