Fighting the Laws of War

Protecting Civilians in Asymmetric Conflict

In December 2008 and January 2009, Hamas and Israel waged a fierce three-week battle in the Gaza Strip. The Israel Defense Forces targeted urban infrastructure in Gaza, devastating populated areas as they attempted to end the barrage of Qassam rockets fired indiscriminately by Hamas toward southern Israeli cities. The war ended inconclusively in January, when Israel declared a unilateral cease-fire amid concerns about mounting civilian casualties. But the conflict shifted from Gaza to Geneva in April, when the UN Human Rights Council appointed former South African judge Richard Goldstone -- chief UN prosecutor in Yugoslavia and Rwanda during the 1990s -- to lead a fact-finding mission to Gaza. In September, Goldstone's team announced its conclusion: both Hamas and Israel had violated the laws of war, and both had possibly committed crimes against humanity.

Many have interpreted the Goldstone report, as it has become known, as yet another battle in the Israeli-Palestinian conflict, waged by other means. But the report addressed a more far-reaching issue -- namely, the difficulty of distinguishing civilians from combatants in modern urban warfare.

Two recent books explore that dilemma by examining the relationship between the laws of war and civilian protection during battle. In Moral Dilemmas of Modern War, Michael Gross contends that the current safeguards against civilian casualties are too stringent to address the complexities of today's wars, barring states from adequately combating irregular forces. Meanwhile, Stephen Rockel and Rick Halpern argue in Inventing Collateral Damage that the current international regulations are too weak, permitting and even enabling states to harm civilians during combat.

From two widely different perspectives, the books cast doubt on the value of the existing international regulations presumably designed to mitigate war's impact on civilians. But a closer look suggests that these authors overstate the tensions between the laws of war and the modern battlefield and underestimate just how well the existing statutes are working. Although the laws of war require strengthening, they constitute a firm foundation on which to better protect civilians.

TOO MUCH OR TOO LITTLE?

Register for free to continue reading.
Registered users get access to two free articles every month.

Or subscribe now and save 55 percent.

Subscription benefits include:
  • Full access to ForeignAffairs.com
  • Six issues of the magazine
  • Foreign Affairs iPad app privileges
  • Special editorial collections

Latest Commentary & News analysis