Why Israel’s Gaza war violates Just War principles

Jun 6, 2024
Flags-of-Israel and-Palestine

Israeli defences of their current military assault on Gaza invoke various defences of it couched in moral terms that evoke the concept of a just war. What follows discusses the war and its defences from the perspective of the widely acknowledged (though often misused) theory of the just war and find that the defences offered by Israeli leaders and spokespeople fail badly.

The appalling Hamas attack on October 7 upon a part of Israel in which approximately 1200 Israelis, most of them ordinary citizens, were slaughtered mercilessly, was clearly a violation of international humanitarian law, the laws of war and the moral theory of the just war. Furthermore, on many philosophical accounts of terrorism, and certainly my own, it was a gross act of terrorism.

That verdict remains even if we also believe, as I do, that Israel’s past conduct towards the people of the “occupied territories” of Gaza and the West Bank has been an ongoing legal and moral disaster that deserves strong condemnation, and indeed that the current Israeli onslaught on the whole of Gaza itself contains widespread episodes of their armed forces committing war crimes that may well amount to terrorist acts. Such a verdict will be greeted by many Israelis and supporters of Israel’s latest war with the defence that Israel is simply exercising a legitimate right to self-defence, a right which is part of international law and is underpinned by the philosophical moral theory of The Just War. I will examine that defence and others in what follows in the light of just war theory which is often appealed to explicitly or implicitly. Just war thinking has medieval origins but has been revived and much analysed in contemporary philosophy especially since the 1970s and Michael Walzer’s influential book Just and Unjust Wars.

Such an assessment is necessary whatever the fate of the latest “Israeli truce proposal” weirdly announced on June 1 by Joe Biden rather than an Israeli official and remains unconfirmed in full by any Israeli authority as the time of writing. Indeed, the Israeli PM Netanyahu promptly called it a “non-starter” unless all of Israel’s conditions were met, and two of key ministers threatened to resign and bring down the government if what is increasingly being called Biden’s proposal were accepted. Since these standing Israeli conditions include an ongoing violent blitz to eliminate Hamas entirely, the prospects of Biden’s truce look grim. The assessment of Israel’s war by just war principles thus remains urgent.

So, firstly, the right to self-defence response relies upon only one aspect of just war theory, namely, the jus ad bellum which spells out the moral conditions under which it is right to go to war and it relies upon only one of the conditions of the jus ad bellum, namely that requiring a just cause. The other conditions include that war must be a last resort, that it must have reasonable prospects of success, that it must be a proportional response, and that it must be waged with the right intention. Then there is the other element of Justification, the jus in bello, which provides conditions that must be satisfied while conducting war. A central one of these is that innocent people must not be intentionally killed or otherwise harmed in conducting the war, which condition is often described as “the principle of discrimination (or distinction)” and canonised in international law as “the immunity of civilians”.

Endless talk of Israel’s right to self-defence ignores so much of the above as to be almost irrelevant. Admittedly, vital external criticism of Israel’s conduct of the war on the grounds of its army’s killing or maiming tens of thousands of Palestinian civilians, and rendering hundreds of thousands, homeless, has produced some Israeli official attention to the matter with claims that the army is instructed to avoid unnecessary civilian casualties. But the sheer scale of the massacres, destruction of homes and extensive bombing of crucial civic institutions, such as homes, hospitals, refugee camps, and universities, violates any sane understanding of proportionality and throws into doubt those disavowals of intention to cause such slaughter and mayhem. Much the same is true of the Israeli denial of necessary access to food supplies.

Such doubt is increased by the numerous statements of Israeli senior political and military officials now and in the past to the effect that all Palestinians are equally guilty with the Hamas invaders of October 7, and indeed cannot be viewed as fully human. Israel’s Defence Minister Yoav Gallant, for instance, has said of the current conflict that Israel “is fighting human animals and we are acting accordingly” clearly intending to treat Palestinians as too low in the human scale to deserve the moral respect required by the principle of discrimination (while ignoring the fact that he and all of us belong equally to the animal species). Amihae Eliyahu, the Minister for Heritage, described the massive destruction in Gaza as “a pleasure for the eyes.” President Isaac Herzog proclaimed “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.” This last appeal is basically a version of the discredited plea of the “collective guilt” of whole nations or communities often used or subliminally at work in many defences of violent atrocities such as ethnic cleansing.

In somewhat the same vein, though less overt, Israel’s ambassador to the UK Tzipi Hotovely cited the Allied city bombings of World War II, specifically the mass bombing of Dresden, as a justification for the campaign in Gaza. It is an apt comparison, but far from a justification. Those bombings and the parallel American fire-bombings of mainland Japanese cities plus their nuclear bombings of Hiroshima and Nagasaki were palpable violations of the principle of discrimination and helped the later creation of a stronger international legal prohibition of attacks upon civilian populations. Even Winston Churchill who authorised the British city bombings of Germany once glibly defended them by saying that it was “absurd to consider morality on this topic”. He then added with astonishing superficiality: “In the last war the bombing of open cities was regarded as forbidden. Now everybody does it as a matter of course. It is simply a matter of fashion changing as she does between long and short skirts for women.” His conscience kicked in on other occasions, however, as when, after viewing film of devastating RAF raids upon cities in the Ruhr region, he questioned whether he and his team had become “beasts” by pursuing relentlessly what was often called “terror bombing”. Later, after the similarly devastating bombing of Dresden in 1945 he admitted that ‘the destruction of Dresden remains a serious query against the conduct of Allied bombing… I feel the need for more precise concentration upon military objectives… rather than on mere acts of terror and wanton destruction”. It is instructive that this bombing was precisely the one that Hotoveley calmly cited as justification for Israel’s bombings, even though Churchill’s comment effectively acknowledges that the bombing of civilian targets were intentional.

What is true of Israeli comparisons of their own city bombings with that of World War II, is that such violations of just war principles have been widely practiced in many theatres of war in the past and increasingly since the development of massively damaging weaponry in the 20th and 21st centuries. Moreover, their violation of just war principles, such as those involving the immunity of non-combatants, have often been ignored or implausibly denied by perpetrating governments, witness the United States’ behaviour in the context of its bombings of Cambodia and much else during the Vietnam War.

One form of the denialism which is used, as noted earlier by Israeli authorities, consists in claiming as unintentional the widespread killing and other serious harmings of civilians. such as wounding, rendering homeless, destroying hospitals and universities, and denying food supplies. The idea is that such outcomes are unintended, though clearly foreseeable, side-effects of a legitimate military aim, namely the defence of Israel by the total destruction of Hamas. Leaving aside the questionable feasibility of such a project, this appeal to incidental death and destruction invokes an aspect of just war thinking that allows for harming, including killing, non-combatants incidentally while attacking legitimate targets. This is even allowed when such harming is not accidental but fully foreseen. The idea is that such incidental harming can be justified and regarded as non-intentional where the harmful consequences to civilians are proportionate to the importance of the target directly attacked and necessary because no other less damaging consequences have been available. (This is to apply the often philosophically contentious principle of double- effect.)

But the palpably foreseeable effects of the Israeli attacks have been so staggeringly large-scale—more than 35,000 Gazans dead at the current count of whom a vast proportion, probably at least 80%, are civilians including an alarming proportion of children—that it not only fails the double-effect proportion criterion but raises the question whether the attacks are actually directly intended, as were what Churchill admitted to be the “acts of terror and wanton destruction” of the Allied city bombings of WWII. Certainly, the vicious comments about the status of Palestinian civilians, cited earlier, support a positive answer to the question raised. People sometimes regard intentions as inaccessibly “in the mind” but they can be standardly read off from public behaviour despite agent’s denials or even delusions. If someone who hates flies takes a sledgehammer and knowingly smashes a person on the head with it in pursuit of a fly, it is hard to deny intent to smash the head in, whatever the agent declares. In this context, it is worth recalling the impressive philosopher Elizabeth Anscombe who endorsed a cautious use of the double effect principle but warned against “double-think about double-effect”.

Are then some or many of the Israeli attacks terrorist acts? I usually define such acts as requiring (amongst other things) the intention to seriously harm innocent people for political purposes. From what has been discussed above there seems a serious case to conclude that such an intention is at work in at least some of those attacks which are therefore terrorist. Some philosophers, otherwise sympathetic to my approach, would include as terrorist acts those which lack the full intention to kill or damage the innocent, but are reckless or heedless of the disproportionate damage their attack inevitably inflicts on them. Under this approach there is strong reason to conclude that a great deal of the IDF’s attacks are terrorist.

Finally, what of other defences commonly produced against criticisms of the moral or legal standing of the Israeli war? One of these has recently been loudly proclaimed by Israel and its supporters in reaction to the request by the ICC Prosecutor for arrest warrants against Benjamin Netanyahu and Yoav Gallant. He also requested similar warrants for the Hamas leaders who were deemed responsible for the October 7 slaughter of Israeli citizens. The defence has two parts. The first is the cry of “no moral equivalence” between Israel and Hamas, and the second, offered partly to back this up, is that, unlike many of its enemies, Israel is a democracy. To this, it must be replied that a country being a democracy is no guarantee against its leaders’ perpetrating crimes, including war crimes. The British and US city terror bombings of German and Japanese cities are prime examples. As for “moral equivalence” sweeping claims for or against it are almost meaningless, unless the respects in which such equivalence or its absence are specified and evaluated, and even then, one must be wary of the pitfalls of ever-present nationalistic prejudice. If the scale of harms is built into the moral weightings, then the vastly greater tally of death, destruction and homelessness brought about by Israel’s attacks compared to the Hamas attack of October 7 would tip the balance against Israel. But I think this sort of comparison brings out the weirdness of computing such matters in the way the equivalence argument apparently requires.

I conclude that Israel’s exercise of a right of self-defence has resulted in a war that is morally in violation of just war criteria, and its defences of its conduct are unconvincing. Given the links between such criteria and the international law relating to warfare and its conduct, this analysis strongly supports the proposal that the ICC should bring charges of war crimes against Israel’s Prime Minister and Defence Minister.

P.S. My brief discussions here of the nature of terrorism, just war theory, and the relevance of intention, double effect etc. are more fully explored and defended in my books The Meaning of Terrorism (OUP, 2021) and Morality and Political Violence (CUP, 2008).

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