Disproportionate and Intended Harm to Innocents in Israel’s War in Gaza (guest post)

“Experts on just war disagree on what precisely counts as permissible proportion. But clearly this is grossly disproportionate.”

In the following guest post, Nir Eyal (Rutgers University), argues that Israel’s military actions are clearly immoral, explaining that they involve severely disproportionate harm to Gaza’s innocent civilians and that there is reason to believe much of that harm was not merely foreseen, but intended.

It is part of the ongoing series, “Philosophers On the Israel-Hamas Conflict“.

Disproportionate and Intended Harm
to Innocents in Israel’s War in Gaza
by Nir Eyal

As I write on December 13, 2023, widespread and comparably indiscriminate Israeli bombing in Gaza’s dense northern residential areas is reported to have killed women and children at a faster pace than any military campaign since the Rwanda genocide. But this war is far from ending. In many armed conflicts, disease kills more people than direct fighting does, especially the very young and very old. Unfortunately, extreme numbers of deaths due to disease may well occur, as two million Gazans are cramped into a small area in the south where clean water, food, electricity, gas, means of communication, and medical supplies and services are scarce or nonexistent. With members of Israel’s ruling coalition and some opposition members suggesting truly extreme measures, the number of noncombatant victims may become catastrophic.

Following Hamas’s unspeakable crimes on October 7, several Israeli philosophers wrote, “80 years after the Holocaust, the threats facing Jews are again truly and plainly existential.” Another philosopher described Hamas as an “existential threat to the State of Israel.” Crucially, however, as soon as Israeli soldiers and tanks were in heavy presence near Israel’s border with Gaza, the short-term risk of anything like a recurrence of the October 7 events was eliminated. Hamas had entered Israel on foot, in cars, and on bulldozers. Such forces cannot defeat a significant Israeli army presence. Setting aside the question of whether the border should have been guarded more heavily in advance and who is responsible for this failure, once an army on high alert was present, infiltrations and attempted entries were quickly quashed.

Hamas missile attacks kill only a few Israelis per year, and Israel’s air defense against missile attacks does not require war. In short, Hamas may wish to pose an existential or formidable threat to Israel and Israelis, and many Israelis feel themselves to be under acute immediate threat that requires a war. Objectively, however, with the border well-staffed, Hamas cannot kill a great number of Israelis or replace the government in Jerusalem, even absent a war. Hamas has proven itself both ruthless and creative, but there are caps on the military equipment it may develop or import and those will remain in the foreseeable future and protect Israel from far worse attacks. That means that, once Israel’s border was staffed, failing to launch a full-scale would in the short run cost Israel only a few lives. Hamas would occasionally kill a few soldiers before an attempted incursion would be thwarted, or a few extra civilians from potentially worse missile attacks. Avoiding a war would have allowed Israel to recover its Gazan hostages through the prisoner exchanges to which it is now resorting with no risk of bombing those hostages. Israel could then fight Hamas financially and demand Qatar’s, Turkey’s, or neighboring Egypt’s assistance in clamping down on the import of weapons into Gaza, weakening Hamas. It could use its moral high ground to request the prosecution of Hamas leaders by international courts or, failing that, authorize Mossad to capture leaders for fair trials in Israel, or, failing that, attack their properties and person in highly targeted ways.

Proportionality in defense, unlike proportionality in punishment, weighs harms inflicted against harms to be prevented, not against harms already suffered. The staggering disproportion between the massive numbers of innocent Gazans currently expected to be killed and the relatively few Israelis who would have been killed had Israel not gone to war but held Hamas leaders accountable in one of those targeted ways is staggering. I would not be surprised if the ratio is 10,000 to 1. Experts on just war disagree on what precisely counts as permissible proportion. But clearly this is grossly disproportionate.

Israel’s philosophical apologists offer (or may want to offer) four responses. First, the war is essential to preventing even worse events from occurring in Gaza, the West Bank, inside Israel, in Lebanon, or within global geopolitics. For example, the war, though it involves collaterally killing many Gazan civilians, may be thought unavoidable to teach Lebanon’s stronger Hezbollah that it cannot escape Israel’s ire by hiding amongst Lebanese noncombatants (and Hezbollah cares about its neighbors more than Hamas cares about its neighbors).

These philosophical responses are often over-pessimistic about the highly indirect worse scenarios they envisage absent war, and overoptimistic that war would generate longterm benefits which rely on intricate causal pathways and will not descend into regional military escalation and instability, boost the extreme right in Israel and Hamas in the West Bank, and result in other, particularly unwelcome, outcomes. They also ignore more promising responses to the worse scenarios envisaged, e.g. assertive direct signals to Hezbollah that its greater military power (which exceeds Hamas’s) will not spare it Israel’s ire. Ethically, killing Gazan civilians simply to retaliate against a third party like Hezbollah, for whom civilian deaths matter, instrumentalizes these civilian casualties. Far from defending Israel, such reasoning exposes a non-obvious way in which this war may involve terror bombing.

Second, Israeli apologists assert that any disproportion is purely Hamas’s fault, owing to its embedding soldiers among dense populations of civilians. Had Hamas instead camped in Gaza’s agricultural lands, away from crowded residential areas, Israel could achieve its objectives while sparing noncombatants, but Hamas’s strategy forces Israel to use tactics that threaten large numbers of Gazan civilians. Yet, whether Hamas’s culpability would leave Israel fully blameworthy or only substantial blameworthy for Israel’s killings of noncombatants, surely some substantial blame remains on Israel. By analogy, consider a police officer chasing an armed suspect who runs into a thick crowd for cover; we’d think the officer would be acting wrongly were they to start shooting into the crowd, and would be at least substantially blameworthy for any injuries or death they cause to bystanders, even though it was the suspect who chose to hide in the crowd. Or consider that if Israel took military actions against Hamas fighters fully expecting to kill scores of Israeli hostages who, it knew, were locked in with them, instead of choosing an alternative action that, while being equally effective against Hamas, would spare the hostages’ lives, the Israeli military would bear substantial responsibility for the hostages’ deaths. The underlying morality of such cases does not change when we replace “a crowd” or “Israeli hostages” with “innocent Gazans”. Hamas’s hand in the tragedy does not eliminate Israel’s responsibility for its own lethal choices.

A third response by Israel’s apologists is to emphasize the difference between Hamas’s intentional (and taboo-trampling) violence against noncombatants and Israel’s merely foreseeable (and conventional) violence against noncombatants. But the principle of proportionality assesses an act of war that does not target noncombatants only by comparing its likely harm to noncombatants with the harm to noncombatants that it is likely to prevent. Whether the harm to noncombatants that it would prevent would be inflicted on them intentionally is irrelevant to the proportionality of the defensive act. Certainly the intentions behind and cruelty of past acts that sparked the war are not directly relevant. A’s especially evil motives and actions in attacking B hardly increase the collateral damage that B may inflict on A’s innocent neighbor C.

There is also a further non-obvious way in which Israel’s harm to noncombatants may be intended. Even when an action is not immediately driven by an intention to kill noncombatants, such a drive may ultimately lie behind that action. This can be the case when an agent had earlier intentionally forced a consequent situation in which even if she intends to minimize innocent killing, the deaths of many would result from her legitimate self-defense at the time.

In the early days of the war, Israel’s leaders still openly defined their aims in terms that might dissuade international observers, such as to turn Gaza City “into rubble” and to “roll out the Gaza Nakba.” Prime Minister Netanyahu said that Israelis are fighting “Amalek” (here is what that means) and his Minister of Defense said that Israel is shutting Gaza’s electricity, food and fuel because this is how you fight “human beasts”. Israeli leaders and media personalities have regularly used genocidal language. Israel’s President explained that there is no room for separating Gazan civilians from Hamas fighters. A ubiquitous TV presence concluded that a great many of these civilians should be intentionally killed. It was then that the Israeli Defence Forces clarified that in Israel’s plans for bombing in dense residential areas, “the emphasis is on damage and not on accuracy.”

Later, while using those bombs, Israel took measures to minimize noncombatant deaths. Perhaps its operations lacked the simultaneous intent to kill civilians. But highly destructive 150-, 1,000-, and even 2,000-pound bombs in Gaza’s densely-populated north ensured unprecedented collateral death and destruction. Recall the earlier rhetoric seeking harm to all Gazans, and the desire to mobilize a large collateral toll for the purposes of retaliation. That early cap set by Israel on the success of its later attempts to minimize civilian harm, namely, that these attempts would have to “target” Hamas fighters with inaccurate bombs, may well have been intended. If that is so, Israel can be judged as one would judge intentional killers.

A fourth response by Israel’s apologists may be that legitimate partiality permits Israel to prioritize its own soldiers’ and civilians’ lives overwhelmingly above Gazan civilians’. But prioritizing Israelis by a factor of 10,000 is egregious. Mossad should not (and would not) blow up a Gazan Club Med with 9,000 English tourists if someone planning to kill one Israeli hid there.

Besides, not all severe harms that Israel visits on Gazan civilians have any tendency to save Israelis from severe harm. When Israel goaded noncombatants in Gaza’s north to move to the south while it handled the combatants in the north, minimizing civilian suffering and risk within the constraints of their evacuation would have cost Israel money and the restraint of machismo pride, but not necessarily Israeli lives. Yet Israel did not commit to permitting these civilians to return to the north later. It did not apologize in advance for the inevitable burden and risk. It did not give them time to complete their affairs, fill medical prescriptions, or obtain cash. Safety, basic medical care, and aid en route to the south were not offered. Instead, Israel continues to obstruct aid to these starving civilians in more ways than one. That systematic failure to minimize civilian suffering and risk can be understood as a violation of the necessity requirement of just war theory. It can also be understood as intentional harm to civilians, say, for revenge, dominion, collective punishment, or third-party deterrence, or to turn Gazan civilians either against Hamas or to international destinations. I am not sure which understanding is more damning.

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