Israel Can “Legally” Kill Babies Because the Laws of War Are Immoral

Graeme Wood of The Atlantic, in an article earlier this month, raised legitimate questions about the true death toll of the war in Gaza—which, as he shows, is impossible to know because Hamas is the only organization attempting to count the dead, and they are hardly unbiased. But in making the case for Israel to allow Western journalists to cover the conflict, thereby rebutting Hamas’s depiction of it, he made this aside: “It is possible to kill children legally, if for example one is being attacked by an enemy who hides behind them. But the sight of a legally killed child is no less disturbing than the sight of a murdered one.”

Wood’s reliance on the distinction between the so-called “legally killed child” and a “murdered one” received appropriate criticism, and it has heightened resonance in light of Israel’s Sunday night strike in Rafah, which may have killed as many as 45 women and children.

Wood is not factually wrong: Contrary to what many Americans might believe about war, the laws of armed conflict do permit the premeditated killing of civilians, including children, if the intended target is a military objective. But the banality of this strict legalism fails to reckon with the fact that existing laws of war are rooted in a principle of proportionality that is both morally abhorrent and grossly ineffective at limiting modern conflict.

The principle of proportionality is rooted in the formal treaties of the Geneva Conventions and its subsequent protocols, prohibiting indiscriminate attacks on civilians as those “which would be excessive in relation to the concrete and direct military advantage anticipated.” However, the standard of proportionality in any specific campaign is largely left to the perpetrators of war themselves, as is the burden of investigating and punishing violations of it. While Israel claims that its military decisions are governed by considerations of proportionality, it’s not a signatory—and neither is the United States—to the protocol establishing the principle of proportionality, making it effectively toothless against the U.S. and its allies despite its otherwise near-universal acceptance.

Additionally, proportionality is a principle that applies to specific military actions. Even if each incident where a civilian is injured or killed is individually proportional, their totality can lead to atrocity, even genocide. Israeli Prime Minister Benjamin Netanyahu has defended the death of Palestinian civilians by placing the blame squarely on Hamas. However, for there to be any possibility of a moral standard in war, the assertion that the enemy is entirely responsible for civilian deaths must be refuted; otherwise, everything is permitted, as we now bear witness to in Gaza.

As Wood rightly notes elsewhere in his piece, “These numbers matter—first, because of the dignity of those killed or still living, and second, because total deaths and the ratio of combatant to noncombatant deaths will have implications for judgments about alleged war crimes and genocide.” The fierce propaganda campaign waged by both sides of the Israeli-Palestinian conflict, and by U.S. officials eager to justify arms sales, is a testament to this.

But it is not enough to endorse the principle of proportionality as an immutable fact embedded in international law without reckoning with the precise number of innocent men, women, and children who you believe can be premeditatively murdered in the name of military necessity.

By its own numbers, Israel claims responsibility for the death of 16,000 civilians and 14,000 Hamas militants. In aggregate, the killing of roughly one civilian for every military target might sound to the average person proportional. Additionally, this toll includes those killed by errant air strikes and bad intelligence, which are considered accidental and not factored into considerations of proportionality, in much the same way that police are not necessarily liable for shooting unarmed civilians in the line of duty.

However, we can also evaluate aggregate proportionality even if such an analysis has only moral rather than legal weight. Depending on whose numbers you believe, Israel has killed between 16 and 35 innocent civilians for each of the 1,200 people killed in the Hamas October 7 attack that started the war. And those numbers do not include the ongoing death toll or the Israeli use of famine as a weapon of war in Gaza, where more than one million people are in a desperate battle against starvation.

Of course, the sheer scale of these statistics obscures the horror of what it means for a child to be buried or burned alive, or to undergo an amputation of an arm or a leg without anesthetic. It does not convey how entire bloodlines have been eliminated, or how families must survive afterward without a breadwinner, homeless, facing the prospect of forced migration and a lifetime of psychological trauma. Nor does it account for the Israeli families murdered in the comfort of their own homes, gunned down fleeing in terror at the Re’im music festival, and the women sexually assaulted by Hamas militants. The fact is, war is a crime committed against every dead civilian, no matter their nationality.

This debate over numbers is itself a propaganda technique that sows confusion and apathy. We have become numb to the fact that our democratically elected officials regularly lie to us. Particularly in war, truth becomes another casualty in the pursuit of military victory, as anyone who lived during the aftermath of 9/11 can attest. When those lies are eventually unearthed, like the bodies in a mass grave, it is too late for them to matter.

Who decides what is proportional? While the laws of armed conflict set a legal floor for what is permissible, the principle of proportionality gives Netanyahu and individual Israeli military commanders wide leeway in determining whether the number of civilians killed to achieve a military objective is justifiable. But neither the perpetrator nor the victim should have the final say on such matters, particularly when so often in history there are no victims who survive to file a complaint.

Disinterested third parties ought at a minimum to serve as a moral adjudicator for international disputes, just as jury trials do domestically. However, neither the U.S. nor Israel is currently a signatory to the treaty authorizing the International Criminal Court, and both have made clear their disdain for its work.

The rules of our international order, which grew from the wastelands of Europe and Asia in the aftermath of World War II, have been undermined in past decades by America’s reckless exploitation of them. Indeed, technological and moral hubris has blinded military leaders in Israel to the horror of their decisions, just like it did to American political and military leaders during the past 20 years of our own so-called “war on terror,” where U.S. forces killed roughly 130 foreign civilians for every civilian killed on 9/11.

A litany of presidents from George W. Bush to Barack Obama to Donald Trump to Joe Biden have—to varying degrees—obliterated America’s moral stature and given license to Israel, Russia, and others to use America’s hypocrisy to justify their own barbarity. Our so-called international laws, which once aspired to protect the innocent and prevent war, now only preserve a status quo of might makes right.

Long after this war is over, when we speak of Palestine in the past tense, there may be a reckoning and promises of “never again,” just as there were after the Holocaust. For many, the Nazi genocide remains a potent symbol that we all share a common humanity and that no people should be abandoned by the world to the cruelty and destruction of a domineering power. But it has become clear that the current Israeli government and its supporters learned a far different lesson: that survival can only be assured through military might and a willingness to use it in defense of one’s own people, even if it means the annihilation of another.