Missing Mark Baker’s voice: law, morality and the Israel-Gaza war

What constitutes a proportionate response to a massacre? MICHELLE LESH interrogates the legal and moral minefield of the war between Israel and Gaza.

7 October 2023. ‘A Date that will live in Infamy in Israel’, read a headline from a major newspaper. My echo chamber was full of the caption ‘7.10.2023’ with the Israeli flag and broken heart emojis. The most lethal assault in the history of the state of Israel. Black Saturday. 7 October 2023 was also my husband’s birthday, the first one we marked without him. Mark died of pancreatic cancer less than six months ago. He was an expert on Israel/Palestine, an historian and teacher. His connection to Israel went deep in him, as did his commitment to bringing about some kind of just solution to the conflict.

That depth and feeling resonating from his writing. His political instinct and eloquence made his voice powerful, accessible and original. It was also a courageous voice in the context of the diaspora Jewish community because of his readiness to criticise policies of the Israeli government and his persistent pleas to treat justly Palestinians living under the oppression of a prolonged occupation.

For me, the coinciding of dates – posthumous birthday and war – makes it hard to disentangle the collective grief from the personal. Black Saturday. I miss his real-time critiques that he churned out at rapid speed yet maintained remarkable breadth and depth. There is a gap in the world where Mark should be, which I feel acutely and always, but especially now because his voice on Israel/Palestine was such an important one. A friend expressed it well: “The instinct to check what Mark has said on Twitter/Facebook is still very strong. Muscle memory.”

I long for my husband to be by my side through life always, but now I want him next to me in front of our screens – reading, watching, and sharing content – all the while injecting the coverage with commentary on the commentary. More importantly, despairing and empathising together over the horrors as they unfold before our eyes. Comforting each other through the grief and the utter nightmare of it all, while trying to decipher the rules of what looks to be a new world order.

Helping me to navigate reactions in order to protect our two-year-old daughter who asks what the TV is, why it’s now on all the time, and why it made her grandmother’s eye hurt. When the first images flashed across the screen my mother, nine generations Israeli, let out a wail and covered her face. My daughter senses that the world has changed.

Mark is not here. I can’t pretend to know what his precise take would be. I cannot speak for him or through him, but I’m confident that his observations would have guided many in understanding the complexities of these events. I am moved by how many people have lamented that they could not hear his voice when they needed it like never before. He would have tapped into the heightened emotions; the overwhelming sense of helplessness, lack of knowledge and plethora of misinformation.

More than most, he was able to cut through the polarisation with his moral and political clarity by shining a light on Israeli and Palestinian truths simultaneously without attempting to draw moral equivalences or whataboutisms. His tone had the right pitch, filled with courage, compassion and sobriety, but most importantly with humanity. In doing so, his voice would have given some solace to many by offering an authentic vision, connection and meaning that was stripped of hysteria, cliché and jingoism during a time of collective heartbreak and fear.

Mark often felt it important to connect his moral and political observations to international law, to give those observations broader authority from one perspective, and from another, to diminish the tendency in debates on Israel and Palestine to dismiss international law as irrelevant. It meant something to Mark that a lot of international law was invented by Jews such as Lempkin and Lauterpacht after the war in the city of Lvov where his grandmother spent the war years.

In recent years Mark became increasingly aware that though the political, moral and legal aspects of the conflict often overlapped, they sometimes diverged and even conflicted. In the many discussions Mark had with me and Rai Gaita, his father-in-law, my stepfather, we discussed this relationship. Rai’s thinking on morality influenced us both. Though I can’t pretend to know what Mark would think, there are some legal aspects of the war that I believe would be at the forefront of his mind.

Like many people, Mark would have been shaken to the core by Black Saturday, dubbed “Operation Al-Aqsa Flood” by Hamas. The atrocities – more than a thousand civilians gunned down in their homes and killed in the most brutalised way, taken hostage, and massacred at a music festival – revealed the vicious magnitude of their violence. I can feel his sense of horror. The victims were radically dehumanised and degraded. The dignity of their humanity, which some international law says, is possessed by every human being, was treated with contempt.

I am not attempting to elevate the 1300 lives that were taken on October 7 above any other human lives, certainly not above the lives of Palestinians now being killed. But for me and for most Jews, this attack, so sadistic in its execution and scale, so obviously the expression of hatred of Jews, was different in kind from previous politically motivated acts of terrorism in the Israeli/Palestinian conflict.

David Grossman captured it when he said there is “a fundamental doubt that we might ever be able to lead a normal, free life… A life that is home”. The “we” refers beyond Israelis to all Jews.

I think Mark would have felt deeply disillusioned by the silence coming from some parts of the left. Even worse, their restrained condemnation of terrible evil. Worse still, their justification of such atrocities as legitimate forms of resistance. Mark would have articulated the fear felt by Jews globally; traumatised, grief stricken and bewildered in a world that did not give them space for their grief before antisemitism resurfaced and the extent of it became undeniable.

Yet for someone who had spent a lifetime thinking about the Holocaust and its connections to other contemporary crimes such as the genocide in Rwanda, Mark would not have found comparisons with it analytically, politically or morally helpful. He would not abstract the moral outrage from the context of the long history of conflict between Israel and Palestine and especially between Israel and Hamas.

We know that the first casualty of war is a sense of the humanity of one’s enemies. The moral horror Henry Dunant felt, when he witnessed the savagery of war and its terrible cost in human suffering in the aftermath of the battle of Solferino in 1859, led to the founding of the International Committee of the Red Cross and to the first Geneva Convention.

It signalled the birth of international humanitarian law (‘IHL’ also known as ‘the laws of war’). Today, all states in the world have ratified and are bound by the Four Geneva Conventions of 1949.

Some perceive IHL as the discourse of power, pointing to, among other things, its warmongering and imperialist roots. Geoffrey Robertson KC, for example, wrote this week in The SMH and Age: “The name [international humanitarian law] itself is something of a bad joke since no war is ‘humanitarian’, and the only way to stop civilian casualties is to stop the war by a ceasefire or some form of armistice.”

The creation of IHL, however, was not an idealistic project to end all wars. It arose out of a wise and humane determination, for as long as human beings wage war on one another, to mitigate its horrors.

It is this humanitarian essence of IHL, which focuses on the protection of civilians without discrimination (the ‘principle of distinction’), that spoke to Mark as an historian of the Holocaust, as a Jew and as an individual. Despite the difficulty in voicing such concerns in the climate of collective Jewish grief, ours muted compared to what Israelis are living through right now, he would have been mortified that the defence minister of the state to which he had been so passionately committed, called members of Hamas “human animals” and warned that Israel will act accordingly - as though they forfeited the right to be treated as human beings.

The response of a former member of the IDF to the events of October 7 expresses an important and powerful sentiment: "at first I wanted to kill them all but then I realised hatred was corrupting my ability to mourn. I can't grieve our dead and be unconcerned for the innocent on the other side of that wall".

There can be no doubt that the atrocities committed by Hamas and other militant groups are crimes in law: they constitute serious violations of the laws of war and as such they give rise to individual criminal responsibility. Armed conflict renders some ordinary crimes – killing civilians, taking of hostages, torture, rape and various other forms of sexual violence, for example – war crimes, justifying international concern.

The massacres will most likely also be judged as crimes against humanity, given their widespread and systematic nature. These legal categories are universal in their application and therefore may not always capture what many feel to be morally new and distinctive about the attacks of October 7, or what is a justified political response to them.

Like so many, I wish I could hear Mark tell me what he thinks. I am sure about one thing: though he would have thought the atrocities revealed the radical depths of evil, the gap that may exist between law on the one hand and morality and politics on the other, cannot justify war crimes committed in the name of morality or for the sake of a political cause, however just. And never the unrelenting pursuit of vengeance.

That is one reason why Mark would have been appalled by statements from Israeli politicians and military personnel about the retaliation in Gaza. The President proclaimed: “it is an entire nation out there that is responsible”. The defence minister ordered : “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed”. A siege upon a siege. He announced he has “released all the restraints”. There have been loud calls to “flatten Gaza”.

The desire for revenge is palpable amongst the Israeli public and government. It is understandable but it is also terrifying. It makes clear the humane, practical wisdom of IHL: it accords legitimacy to the natural impulse towards revenge in its relatively narrow concept of “reprisals”, but reprisal is justified only when it is intended to compel the belligerent to stop its unlawful conduct. That cannot be stretched to cover the stated intention of the IDF’s assault to “destroy Hamas”.

Israel conducted 6000 strikes in the first six days of the war. That is more than the US made in one year in Afghanistan and double the number of strikes against ISIS an Iraq and Syria in a month. Strikes have extended across the territory, even after the call for Palestinians to evacuate from Northern Gaza and flee south. The Gaza Health Ministry claims at the time of publication that 5000 have been killed, most civilians. The morgues are full, so are all the refrigerators. The dead are being buried in mass graves, many of them unidentified.

It is therefore not hard to see why many people are puzzled by how Israel can claim its attacks are proportionate. In assessing their puzzlement and Israel’s defence of its actions it is important to note that the concept of proportionality in IHL is different from one that merely focuses on difference in casualties on both sides. The more technical and narrower concept requires only that military commanders must assess the expected incidental civilian deaths (‘collateral damage’) against the military advantage anticipated from any specific attack. It is a balancing act, determining the weight of these different (and often conflicting) considerations, but it is consistent with the great difference that has existed between Israeli and Gazan casualties in all of Israel’s military conflicts with Hamas, including the present one.

Though it is consistent with such difference in casualties, whether that difference represents a breach of proportionality will depend on further and careful ex post facto investigations – to determine, for example, whether each of the protected sites filled with civilians was intentionally or recklessly targeted by the IDF. Given the proclamations of Israel’s leaders before and during the war, it is understandable that many people are disinclined to accord Israel the presumption of innocence.

Law requires that we withhold judgment until the outcome of investigations, prompted by the reasonable suspicion that a serious violation has occurred, and not jump to the conclusion that Israel is guilty of war crimes. Evidence from the blast at Al-Ahli hospital supports this. The misinformation and ill-informed opinion occurring on social media makes it even more imperative to point out that it takes time to verify atrocities during the chaos of war. Accountability mechanisms nationally and internationally are important tools in pursuing justice, though Israel’s record is a poor one.

Applications of the principle of proportionality are controversial and there are arguments over whether there are intrinsic tensions in the concept that make such controversy inescapable. Its application by individual commanders cannot avoid being some degree subjective, and more importantly it will express the value judgments of the specific country that will apply it.

But high civilian causalities are inevitable when one’s enemy fights and stores weapons amongst civilians. Philosopher Asa Kasher, author of the IDF Code of Ethics and Maj. Gen. (ret.) Amos Yadlin, former chief of Military Intelligence of the IDF and defence attaché to the United States, have argued that in such circumstances, IHL places intolerable moral burdens on a ‘citizens army’ such as Israel’s. They have asked, rhetorically, what could a government say to its citizens in uniform that would justify it asking them to risk their lives for the sake of enemy civilians in situations of asymmetrical warfare.

In a debate with Avishai Margalit, Professor Emeritus of Philosophy at the Hebrew University of Jerusalem, and Michael Walzer, Professor Emeritus in the School of Social Science  at the Institute for Advanced Study in Princeton, they were given an answer: “by wearing a uniform, you take on yourself a risk that is borne only by those who have been trained to injure others (and to protect themselves). You should not shift this risk onto those who haven’t been trained, who lack the capacity to injure; whether they are brothers or others. … As a soldier, you are asked to take an extra risk for the sake of limiting the scope of the war”.

It is not an answer that Israel has accepted, nor have some other Western armies. They have given priority to “force protection” (the lives of their own soldiers) over the enemy civilian population on the ground, often through heavy reliance on air warfare. But in this war Israel appears to have gone further in relaxing the constraints on the killing of civilians. This is partly because each of Israel’s attacks is motivated by the powerful emotional responses to the massacres it suffered on October 7 and the more-than-200 hostages in Gaza.

This has undoubtedly extended Israel’s conception of the anticipated “military advantage” it may gain in each attack in relation to the expected civilian loss. The stakes could not be higher. We can expect that Israel will not deem the high number of civilian casualties to be excessive if its actions are directed at targets whose destruction might enable the recovery of hostages and are intended to contribute to the military objective of destroying Hamas.

There appear to be contradictory moral pressures on IHL: on the one hand the growing refusal by many people the world over (what IHL calls “the public conscience”) to accept the high number of civilian causalities in war, and on the other, often tragic dilemmas posed by asymmetrical warfare.

Reflecting on Mark’s very distinctive concern with the Holocaust, it pains me to think of the pain he would be in right now. I believe he would have appealed to the importance of law, amongst other things, and urged for its application, however blunt and limiting an instrument it is. His deep knowledge of Jewish history and genocide made him attune to the kind of evil that is the reverse side of our humanity and the savagery of unrestrained warfare. We can see what Gaza looks like after two weeks of bombing and only four out of the 222 hostages have been released. The region is on the tipping point of all-out war with key players flexing their muscles. The West Bank is at breaking point.

There are courageous and measured voices, families of the kidnapped and murdered Israelis who are pleading with their government not to destroy Gaza in their name. They are not calling for revenge. They are calling for restraint. The video that went viral of a 19-year-old Israeli who survived the massacre at her home said: “How am I supposed to wake up knowing that 4.5 km from Kibbutz Be’eri, in Gaza, there are people from whom this is not over?”

Or the words from a grieving brother: “The most important thing for me and also for my brother, is that his death will not be used as a justification for killing innocent people”. There have been calls for peace from families of those taken hostage into Gaza. A son said: “You cannot cure dead babies with more dead babies. We need peace”. These are the voices we need to hold on to. The humanity in international humanitarian law speaks for them. 

They are not the only voices. Ahmed Moor articulates our individual power and responsibility: “I was born in a refugee camp in Rafah in the southern Gaza Strip. As a boy, my only interactions with Israelis were at checkpoints or looking down the barrel of a gun. I’ve had ample opportunity to reflect on the birthright lottery that casts us into one camp or the other. I’ve learned that you don’t choose your tribe; you choose your point of view”.

As a widow fresh with grief, I can’t imagine the pain of the thousands who lost loved ones and the deep sense of being at home in the world. Grief is ubiquitous. As much as it is private, it is universal. I am mourning my husband. Israelis and Palestinians are mourning one, two, ten, twenty times over. Some are mourning entire families, communities, whole neighbourhoods. Wiped out. Every single life lost is a world lost. The New York Times columnist Nicholas Kristof expressed what I see as emblematic of Mark’s voice and goes to the heart of it all: “if your moral compass is attuned to the suffering of only one side, your compass is broken, and so is your humanity”.

RELATED

LISTEN: United Nations grapples with human rights abuses and war crimes in Israel-Gaza war By Professor Ben Saul
On this very day in 1945, the United Nations charter kicked into effect. 193 parties have since ratified the charter in the spirit of international cooperation and peace building.

Where the ICC stands if war crimes are committed on either side of the Israel-Hamas war (The Conversation)