Authored by Shailraj Jhalnia, Second year student at the National Law School of India University

Introduction

Jus ad bellum is the body of principles that govern whether it is justified to go to war in the first place, having the necessity principle. Jus in bello, or law in war, regulates behaviour during the war, focusing on the principle of proportionality. The 1837 Caroline incident exemplifies these principles, in which the necessity of self-defence is “instant, overwhelming, and leaving no choice of means.” The Israeli assaults on Gaza in 2008-2009, 2014, and even 2023 are a case in point. In self-defence, Israel said its actions were proportionately necessary to stop rocket attacks from Hamas. Nevertheless, such operations left a bloody trail of non-combatant casualties, which led to doubt regarding adherence to jus in bello.

The Israel-Gaza conflict is marked by repeated cycles of violence, wherein Israel has claimed its right to self-defence as provided in Article 51 of the UN Charter against the rocket attacks and militant actions of Hamas. However, such operations of targeted airstrikes and ground invasions by Israel most often come out with massive non-combatant casualties in Gaza, thereby questioning proportionality and discrimination while applying force. Critics of Israel’s actions assert that its use of force is often actionable and undermines the principles of jus ad bellum and jus in bello.

However, this paper argues that these principles should be interpreted more strictly for a greater humanitarian goal, where the weightage of responsibility is higher on combatants than non-combatants during warfare.  Considering this backdrop, Firstly, this paper seeks to dispute the pro-Israeli justification of its military actions through Mcmahan’s paper on Necessity and Proportionality principles. Secondly, to deconstruct the theoretical limitations of these principles. Lastly, to propose a more proactive framework of Jus ad bellum and ad bello that imposes greater moral responsibility on states than the current standard.

Analysing Israeli Attack’s Justifications

In response to criticism of Israel’s actions, pro-Israeli rebuts the criticism; for instance, they reject the “unrealistic expectations” of the proportionality principle. These counter arguments do not uphold the principles of jus ad bellum and ad bello, which would be disputed in this part.

Whataboutism on Non-Combatant’s Harm

One of the famous counter-arguments from Israel against criticism, which Pavlischek also upholds, is that organisations such as Hezbollah are, to a large extent, the ones to blame for the consequences, as they put the casual citizens in the middle of the battle and use them as human shields. He opposes the idea of Israel being blamed for the event, stating that the nation should not be found guilty of inflicting harm on the non-combatants in the given situations. McMahan would counter this by asserting that moral responsibility cannot be entirely shifted to the adversary.

Even when adversaries act irresponsibly, state actors retain a moral obligation to minimise harm to non-combatants because non-combatants are not liable for damage. He talks about the necessity principle, in which state actors should consider the options that do not actually cause harm or minimise it, no matter what the opposition does. Pavlischek, through prioritising the blame on non-state actors, fails to recognise the leftover pierced responsibility of the state actors to keep non-combatants unharmed. They also argue that there is a moral asymmetry b/w states and non-state actors. Pavlischek criticises this as a double standard, where state actors are held to higher moral and legal standards than non-state actors. He argues that this bias unfairly favours guerrillas and insurgents by excusing their violations of the principles of jus ad bello while holding state militaries to strict scrutiny. Despite distinguishing between state and non-state army identities, every soldier upholds individual moral agency and duty not to harm non-combatants, irrespective of affiliation with a state or a non-state group. Such reasoning by Pavlischek also points to a rhetorical technique called “whataboutism,” reflecting an absence of logical or viable justification for the excess killing of non-combatants in Palestine.

Overlooking the Necessity Test

The principle of necessity, a touchstone of jus ad bellum and ad bello, has been forgotten in assessments of modern conflict and the case of Israel and Gaza, in particular. Giving some nuance to Schwartz’s perspective on necessity is a critical insight in defining the necessity test. So according to him necessity should not be limited to considering the least harmful means at the time of action; it should also account for prior decisions that could constrain the reach of available options.

Schwartz explains an interesting “No Escape” scenario that captures the moral significance of pre-emptively ensuring that no defensive options remain before a threat. In this hypothetical, a defender who faces an imminent attack wrongfully stays their hand but destroys their ability to flee, leaving a lethal response as the only option. According to Schwartz, this squarely defies the principle of necessity, according to which harm must be minimised. By excluding less harmful options from consideration, they set up circumstances in which the excessive harm is inescapable, and they consequently cannot act without moral fault. This questions the moral and practical rationale of state actors who don’t invest in preparation to minimise harm, which creates conditions for the use of excessive force. This neglect is epitomised by Israel’s strategic dependence on massive offensive military responses instead of responses like precision-targeted or non-lethal measures.

However, Pavlischek defends the doctrine of double effect, which allows civilian incidental injury as a foreseeable but unintended side effect of legitimate military acts. He argues that such harm is morally permissible if it fulfils proportionality, meaning the military advantage gained outweighs the damage inflicted on civilians and is not targeted directly. Pavlischek applies this framework to justify collateral damage in war, like Israel’s military attacks in Gaza, arguing that civilian harm is justified when the stakes are high enough.

McMahan would challenge this dependency on the doctrine of double effect by stressing the necessity constraint, which demands that harm be not only proportionate but also unavoidable to civilians. Only if no less harmful means can suffice to achieve the same military goal can civilian injury be justified; he maintains proportionality has no bearing on its own. Pavlischek omits the test of necessity and doesn’t evaluate whether less damaging means could have avoided more significant harm, for instance, targeted strikes or precise ground operations. Viewed through this lens, the disproportionate harm to civilians is not just a random byproduct of war. It is, instead, a predictable consequence of failing to heed necessity.

Therefore, it reflects a need for a stricter standard of accountability for state actors, undermining Pavlischek’s permissive stance on collateral damage and reiterating the importance of military strategies that take active measures to minimise civilian harm. India’s surgical strike at Pathankot exemplifies how a proportionality test can be applied. These operations indubitably minimise harm to non-combatants, which suggests that military objectives can be attained while protecting the non-combatants.

McMahan uses a prominent trolley example where, on a slope, a trolley with a person on it goes down towards five persons who can’t move and do not have any special relations with the person on the trolley. A reasonable rationale would be to save the five people instead of a single person. However, according to some sources in the current Israel-Gaza war, Israel’s military was given instructions to kill 15 to 20 civilians when a junior Hamas operative was found, and the allowance to kill civilians was to kill 100 civilians when higher-ranked Hamas officials were found. Therefore, reflecting that how even the basic principles of war were being flouted openly without any care towards innocent non-combatants.

Redefining Traditional Jus ad Bellum and ad Bello

Questioning the Moral Equality of Combatants

According to Walzer’s notion of combatant equality, the rightness or wrongness of the cause is irrelevant. All combatants, having crossed the threshold into war, have no right to life or liberty. Two things make this forfeiture possible: first, combatants threaten others and, in doing so, are alienated from the common humanity, which entails protection from being attacked on moral grounds; second, combatants fight alongside armed forces, which entails the giving of consent to become a legitimate target of attack​.

When the Walzerian principle of war calls for the moral equality of combatants, it contradicts the proportionality test, which allows collateral damage or unintended harm to be outweighed by greater military objectives. What qualifies as a military objective if combatants have the same moral status? Will it mean armed militants attacking public places or army bases? Will there be any distinction between military objectives? Such equality of combatants neglects their morality and intent.

Lazar even critiques that not all killings are equally wrong. For justified reasons, killing those who preserve their rights is a greater evil than killing those who have forfeited them, such as unjust combatants. All such killings are evil, but some are worse. For example, direct targeting of civilians for a political objective is worse than incidental harm in combat.

However, there is another perspective to look at the morality of combatants, which Lazar poses by critiquing both Walzer and the revisionists, arguing that many combatants, even on the unjust side, are not necessarily liable to be killed. Many do not pose significant threats or contribute meaningfully to unjust aims, making them no more liable than noncombatants. Such a perspective makes us wonder how to decipher the just combatants on the unjust side and vice-versa and justify combatant immunity on the unjust side.

Overlooking Noncombatant Immunity

The moral equality of combatants, which is one of the central goals of Walzer’s ethics, has the presumption that civilians have their rights and should not be deliberately attacked. On the other hand, Revisionists argue about situations when non-combatants assist unjust wars by supporting them economically, politically, or logistically. In democracies, according to revisionists, voters and taxpayers are qualified to bear moral responsibility for the injuries caused by their unjust wars. Then again, such a revisionism hardly justifies muddying the moral distinction between combatants and non‐combatants. Allowing civilians to be valid targets undermines the very principles of jus ad bellum and ad bello, which are aimed at lessening the evils of war. This is a very interesting analogy that Lazar draws between ethics and business. He states that a business’s sole goal is to maximise profits through efficiency, and if ethics followed this model, then humans would degrade as “sites of value.” However, such a business model won’t work in ethics as humans possess moral status and are prohibited from using humans as mere instruments.

Redefining Just War Theory

There is a need for stricter necessity test. As seen earlier how, pro-Israeli neglect the necessity test. If most warring states successfully apply this test, there would be no need to argue for “morally authentic” wars. When it comes to proportionality, it should not allow minimal harm to civilians, and even if harm happens, that state needs to be answerable for such damage. This idea fits with ethical thinking. It focuses on causing less harm while still going after valid targets. India’s surgical strikes show us how this works. India picked specific targets at terrorist camps. This avoided the widespread damage that often happens with air attacks and applied ground-level attacks. It proves that necessity can push military plans to be more humane.

However, authors like Pavlischek argue that such stringent application of minimising non-combatant casualties or risking more than is militarily wise is impractical and can lead to ‘functional pacifism.’ It is seen as a reinterpretation of jus ad bellum and ad bello theory, which applies stringent moral criteria that effectively rule out the majority of the wars conducted in the modern world as just. Despite the flagrant violation of principles, there needs to be a moral response to such grave crimes of genocide; classifying such stringent rules of principles as pacifism is not plausible. As Lazar argues, pacifism fundamentally rejects all war as immoral, irrespective of the context or adherence to ethical principles. The strict application of jus ad bellum and ad bello is to refine the ethical boundaries in war. For instance, in pacifism, no one would call for war in any given condition, be it genocide or crimes like the Holocaust. However, with refined war principles, the collateral damage in response to unjust crimes would be controlled more for a moral response to such grievous crimes.

However, the brutal reality of real-life wars is that the distinction between combatants and noncombatants, or just and unjust sides, often gets blurred. Just combatants may undertake certain acts that would cause unnecessary suffering, like the current Israel’s act of depriving food and shelter to non-combatants. In contrast, even unjust combatants may sometimes act justly, e.g., by protecting civilians. This highlights the tragic reality of war that such ideals of just, unjust, moral, immoral immunity of combatants or non-combatants get violated blatantly, making the ethical justification for war increasingly tenuous and making one question whether there is any “just” war or is it just a utopian idea?

Conclusion

To summarise, even though the concepts of jus ad bellum and jus in bello were formulated by the international community to regulate war within specific legal and ethical limits, their real-life use is still problematic, especially in the case of territories such as Israel-Gaza. Such destruction proportionately directed to non-combatants on the battlefield tends to severely weaken such principles, calling into question their sufficiency. For that interpretation, stress on requirements of means and definite civilian damage reduction will enable the moral obligation of state actors to be fully recognised. Bridging the gulf between the substantive normative frameworks provided by the just war theory and the abusive logic of war can be achieved by demanding greater standards of accountability and ethical conduct against state actors in waging war and its conduct.