The 2014 Gaza War
Was Operation Protective Edge A Just War?
By Professor Helen Frowe (Stockholm University)
April 1, 2015 Picture: Israel Defense Force/Flickr
This article is part of the Critique’s exclusive The Great War Series (Part I): Gaza, Isis and The Ukraine
I. INTRODUCTION
One of the most striking aspects of the widespread and often heated debate over the recent conflict in Gaza was the effort made by commentators and participants to articulate, criticise and defend Israel’s campaign by invoking components of what is commonly known as just war theory. Many of these debates followed a pattern of either:
(a) conflating the moral theory of the just war with legal conventions concerning the fighting of war,
or
(b) treating just war theory as a single, established set of rules or principles, usually those proposed by early Christian theologians such as Augustine and Aquinas, that we can invoke to give us clear guidance about the ethics of war.
Both approaches are misleading. The first, legalistic approach is mistaken in a fairly familiar way: it is generally wrong to think that the laws governing an activity are identical with the moral rules that apply to that activity. Whether Israel’s campaign was just [See Jeff McMahan’s answer to this question] and justly fought – the question often asked of commentators – is not the same as whether it was legal, and legally fought – which is, in essence, the reply those commentators often give when asked about the justice of the war. The question of what international law permits with respect to declaring and fighting war is an important one, but we should be careful not to equate it with what morality permits. Simply citing the Geneva Convention on the issue of human shields, for example, does not settle the question of the moral status of human shields [See Seth Lazar’s discussion of this particular issue in the Gaza war]. I take this point concerning the gap between law and morality to be fairly uncontroversial, and will not defend it further here.
“The question of what international law permits with respect to declaring and fighting war is an important one, but we should be careful not to equate it with what morality permits”
Instead, I will focus on the second kind of approach, and try to briefly explain why what are often presented as settled principles for justly declaring and fighting war are in fact deeply contested, in terms of both their moral grounding and their application to specific issues in war. I will then explore the implications of these divergent approaches for the issue of the necessity Operation Protective Edge.
II. The Just War Tradition
Many scholars who work on the ethics of war refer to the ‘just war tradition’ rather than ‘just war theory’ precisely because, despite the impression often given by the media, there is no broad consensus concerning the conditions under which one may wage or conduct a just war, even amongst those working in the broadly Western, analytic just war tradition.
Some of the disagreements between these scholars reflect deep philosophical schisms about the nature of morality – in particular whether there is any distinctive ‘collective’ morality that might apply to the actions of states or other political groups, and whether there is something morally special about war that requires us to apply special moral principles to both its declaration and conduct. Often, one’s commitments on these more general issues will be reflected in the conclusions one draws about specific moral questions in war.
The two central camps in modern just war theory can be roughly divided into the traditional account and the revisionist account. Advocates of the traditional account generally share two beliefs: that war is properly understood as a relationship between collectives – usually states – and that war is morally sui generis and thus cannot be understood through the lens of what we might call ‘ordinary morality’. It’s this position that is largely reflected in international law, which is very state-based in its approach. For example, the only legitimate cause for unilateral war recognised by international law is the defence of sovereignty – that is, the defence of the political and territorial integrity enjoyed by states.
In contrast, revisionists typically argue that there is no robust collective or political morality that generates special moral permissions for the declaring or fighting of war. War is not, on this view, a distinctive moral sphere, with its own moral rules. Rather, war is governed by the same moral principles that obtain in ordinary life – most obviously the principles governing self- and other-defence – and these moral principles are grounded in the rights and duties of individuals.
According to the leading revisionist theorist, Jeff McMahan, when we are thinking about the permissibility of harming a person in self-defence, we need to consider whether she is morally responsible for an unjust threat of harm, and whether harming her is necessary for averting that threat and proportionate to the harm we will thereby avert. Or, in some cases, we might think that there is a less-evil justification for harming someone.
If a plane will crash into a heavily populated residential area, it might be permissible to destroy the plane in the air, killing its innocent passengers, if this is the only way to stop many more people being killed, as will happen if the plane crashes. In this case, the passengers are not morally responsible for an unjust threat to the people on the ground, but the disparity in numbers could provide a moral justification for killing the passengers in defence of the residents’ lives.
These conditions of permissible defensive killing obtain equally in war. When an Israeli soldier kills a Hamas soldier, the permissibility of such a killing is to be assessed in terms of the individual rights and duties of each soldier. Was the Hamas soldier morally responsible for posing an unjust threat to either the Israeli soldier or some other person, and was killing her necessary and proportionate? If so, the Hamas soldier will lack a right against being killed, and the Israeli soldier will not wrong her by killing her.
The soldiers’ roles as representatives of a political group, or the fact that their actions are part of a war, do not give either special moral permission to kill or maim the other. Rather, as in ordinary life, the existence of a permission to inflict defensive harm is determined by whether the target of force has, as an individual, done something that renders her usual rights forfeit, or whether there is some lesser-evil justification for harming her.
“When an Israeli soldier kills a Hamas soldier, the permissibility of such a killing is to be assessed in terms of the individual rights and duties of each soldier. Was the Hamas soldier morally responsible for posing an unjust threat to either the Israeli soldier or some other person, and was killing her necessary and proportionate?”
Adhering (as I do) to this revisionist approach produces many conclusions about the ethics of war that are at odds with both the traditional account and the laws of war. I want here to set aside the divergence from international law, because I think that there can be good reasons to legislate in ways that do not exactly map onto the correct moral principles. But for those who are interested in the morality, and not merely the legality of war, it will be useful to sketch some of the ways in which the revisionist view gives a different perspective on important aspects of the morality of war.
Both traditionalists and revisionists usually distinguish between jus ad bellum (the justness of declaring war) and jus in bello (the justness of how the war is conducted). Each category contains a set of conditions that must be satisfied if a war is to count as just in that respect. Jus ad bellum requires that war have a just cause, be proportionate to that cause, be a last resort for securing the cause and have a reasonable prospect of success. Some writers also believe that wars must be fought by a legitimate authority and with a right intention – that is, be fought for the reasons that in fact justify the war, and not for some ulterior motive. I’m not sure how important these conditions are, and will not discuss them here. Jus in bello requires that the specific offensives of a war discriminate between legitimate and illegitimate targets, inflict only harms that are necessary for securing a military advantage, and that these necessary harms are proportionate to that advantage.
Listing these requirements of course lends credence to the idea that, contrary to what I have suggested, there is fairly widespread agreement about what makes a just war. But even though there is agreement about several of what we might call these ‘formal’ conditions – everyone agrees that war must have a just cause, aim only at legitimate targets, be proportionate and so on – there is widespread disagreement about their substantive content. For example, there is disagreement about what counts as a just cause, or who or what counts as a legitimate target, or which goods and harms are relevant to proportionality. And it’s the substantive accounts that matter: we can answer the question of whether a war is proportionate, or has a just cause, only once we know what we mean by those terms.
III. Jus ad bellum and Jus in bello
Some of the most significant differences between the traditional and revisionist views come from how each understands the relationship between jus ad bellum and jus in bello. Traditionalists claim a moral independence between these two parts of war. On this view, even if Israel’s war is ad bellum unjust, it’s still possible for its soldiers to satisfy the in bello conditions of necessity, proportionality and discrimination.
Again, this traditional view is reflected in international law. Even though declaring an unjust war is illegal (and constitutes the crime of aggression), fighting in an unjust war is not. Soldiers who fight on the unjust side of a war enjoy legal equality with those fighting on the just side. They will not be prosecuted for the harms they inflict as long as they obey the laws pertaining to the conduct of war.
IDF/Flickr
The traditional account of just war endorses the moral analogue of this position, holding that there is moral equality between just and unjust soldiers, usually in virtue of the fact that ordinary soldiers are not responsible for decisions of their leaders regarding which wars to fight.
According to this view, there is what Michael Walzer calls a ‘division of moral labour’ between the state and the soldier: state leaders are responsible for jus ad bellum, and soldiers are responsible for jus in bello. On this view, then, it makes sense to talk about whether a particular offensive carried out as part of Protective Edge was proportionate, or satisfied necessity, even if one believes that Protective Edge as an enterprise was unjust.
No such independence between jus ad bellum and jus in bello exists on the revisionist account. On this approach, one cannot conduct a war justly – that is, meet the in bello conditions of proportionality, discrimination and necessity – if one fails the ad bellum conditions.
Thinking about necessity gives us one way to see why revisionists hold this view. Both jus ad bellum and jus in bello contain what are effectively necessity requirements. Jus ad bellum requires that war be a last resort, which we can interpret as requiring that war be the least harmful means of securing the just cause. Jus in bello requires that the specific harms of offensives be necessary – that is, the least harmful means – for securing specific military advantages.
“According to traditionalists, even though declaring an unjust war is illegal (and constitutes the crime of aggression), fighting in an unjust war is not. Soldiers who fight on the unjust side of a war enjoy legal equality with those fighting on the just side. They will not be prosecuted for the harms they inflict as long as they obey the laws pertaining to the conduct of war”
But it seems plausible that the fact that a harm is necessary for securing a military advantage can speak to its moral justification only if that advantage is part of securing a proportionate just cause that could not be achieved in any less harmful way than war – that is, only if the war is ad bellum just. The mere fact that a harm achieves a goal cannot by itself provide a justification for inflicting that harm.
For example, it might be that the only way I can steal your watch is to kill you. The necessity of killing you for achieving this end does nothing to counteract the wrongness of killing you. The goal of stealing your watch is unjust, and the fact that killing was the least harmful means of achieving that goal does not somehow make killing you permissible, or less bad.
On the contrary: if the overall endeavor is unjust, then the fact that harming you contributes to the success of that endeavor seems to be a moral strike against harming you. I’ve now performed two wrongs: I’ve killed you and doing so has helped me to steal from you. When the end is unjust, it seems that any means I take towards that end must also be unjust, even if they are necessary.
“The mere fact that a harm achieves a goal cannot by itself provide a justification for inflicting that harm. It might be that the only way I can steal your watch is to kill you. The necessity of killing you for achieving this end does nothing to counteract the wrongness of killing you”
For necessity to form part of a moral justification, we need to know whether the goal we are pursuing is a good goal – that is, a morally valuable goal. And when soldiers are pursuing military advantages as part of an unjust war, often their goals will not be morally valuable – or at least, not sufficiently morally valuable to warrant pursuit by the massively destructive means of war. If so, the fact that harms to civilians are necessary or unavoidable in achieving those goals does nothing to make it permissible to inflict those harms.
IV. Necessity in Operation Protective Edge
We might think that when it comes to Operation Protective Edge, the goals of the Israelis were morally valuable – they were trying to stop missiles from killing Israeli citizens. Even if we accept that these genuinely were the ends of Protective Edge – and that the operation was not merely a means of enabling Israel to continue its unjust occupation of Gaza – it would not follow that it is permissible for Israel to use force to achieve those ends.
The fact that an end has moral value is not enough to make its pursuit permissible. It’s morally valuable that I get my dangerously sick child to a hospital. But this doesn’t mean that I can lethally run over your child in a bid to make it to the hospital in good time. I could perhaps be permitted to do this if I have five or ten sick children in the car – I could have a lesser-evil justification in that case. But it would be wrong to foreseeably kill your child just to save my own child’s life, even though saving my child’s life is a morally valuable end.
Killing your child is not the lesser evil compared to letting my child die. Importantly, and germane to our purposes here, it would be especially wrong to kill your child if I have other ways to get my child to the hospital that will not involve killing any innocent people at all. Killing your child in this case would not only be disproportionate, but also unnecessary, because it would not be the least harmful means of saving my child’s life.
I suggested above that the ad bellum condition of last resort is best understood as requiring that war be the least harmful means of achieving the belligerent’s just aims. And it seems deeply implausible that Israel lacked alternative, less harmful methods of eliminating or significantly mitigating the threat posed to its citizens by Hamas’s rockets than waging a war.
Whilst it’s hard to gather precise information about the number of casualties and their civilian or combatant status, even a very conservative estimate would put the number of dead Palestinian civilians at well over a thousand – and to properly estimate the harms of war we also need to include harms arising from the widespread destruction of homes and infrastructure.
Israel typically seeks to justify these numbers by, amongst other things, pointing to the number of combatants it has killed in these offensives. But whilst that might help Israel to satisfy proportionality, if by killing those combatants it eliminates threats to its own citizens, it does nothing to show that the war was necessary in the sense of being the least harmful means of averting those threats.
“For necessity to form part of a moral justification, we need to know whether the goal that the harm is necessary for is a good goal. When soldiers are pursuing military advantages as part of an unjust war, often their goals will not be sufficiently morally valuable to warrant pursuit by the massively destructive means of war”
One obvious way of achieving significant mitigation of the threat posed by Hamas is by use of an anti-missile system, such as Israel’s Iron Dome. I think it’s an interesting theoretical question whether Israel is required to maintain such a system – presumably at significant expense – rather than try to kill Hamas militants who are trying to kill Israeli citizens. But the question is practically irrelevant given two features of the Gaza conflict.
The first is the Palestinian civilians who are endangered by Israel’s defence. It might be true that if a person is culpably trying to kill me, and I can avoid harming her in self-defence only if I engage in a costly and lengthy deflection project, then I am permitted to harm her rather than incur those costs.
But I’m unlikely to be permitted to harm her if, in doing so, I will also foreseeably kill an innocent person who is not going to harm me. And if, for every person who will be killed by a culpable attacker, I must kill ten innocent people in the course of thwarting the attack, it seems that it will be clearly impermissible for me to use force instead of using the deflection method – in Israel’s case, an anti-missile system.
When the anti-missile system very significantly reduces the risk of harm to prospective victims, its use is clearly morally required if the alternative imposes lethal costs on a large number of innocent people.
The presence of civilians therefore makes it incumbent on Israel to maintain the Iron Dome even if, absent the civilians’ presence, Israel would be fully justified in using force against Hamas fighters. Since they are able to significantly mitigate the threat posed by Hamas without harming any innocent people, they cannot claim war as the least harmful means.
This is especially so when we notice that in waging war Israel will kill innocent people, rather than fail to save innocent people. If, as many people believe, killing a person is worse than failing to save a person, it would be worse to foreseeably kill a hundred Palestinian civilians than to foreseeably fail to save a hundred Israeli civilians.
“When the anti-missile system very significantly reduces the risk of harm to prospective victims, its use is clearly morally required if the alternative imposes lethal costs on a large number of innocent people”
The second feature of the conflict that this theoretical question ignores is whether, if Israel did not have the Iron Dome, its campaign in Gaza could even then satisfy the condition of being the least harmful means of averting the threat posed by Hamas. And again, it’s hard to see how this could be the case when Israel has a range of morally permissible – indeed, morally required – options for defusing the tensions in Gaza that Hamas exploit.
Barack Obama is right to say that Israel has a right to self-defence, and that no country should have to tolerate missiles raining down on its citizens. But it does not follow from this that defensive war is justified – there’s a reason why the ad bellum conditions extend beyond a mere just cause, demanding that war also be proportionate, a last resort and (importantly, but often overlooked) have a reasonable prospect of success.
The lack of political will on the part of Israel to permanently resolve the situation in Gaza – as evidenced by the return to land-grabbing in the West Bank almost immediately after Protective Edge – undercuts any claim the Israelis make about military defence being a last resort. Israel has other ways to prevent missiles raining down on its citizens that are not only less harmful in the short term, but are the only methods of defence that have a reasonable prospect of success in the long term.
“If, as many people believe, killing a person is worse than failing to save a person, it would be worse to foreseeably kill a hundred Palestinian civilians than to foreseeably fail to save a hundred Israeli civilians”
V. Two Objections (in brief)
There are doubtless many aspects of this argument – which I have sketched only briefly here – to which people will object. I will – again briefly – consider three of those potential objections here.
The first is a general objection to the revisionist perspective that I have endorsed. General Sherman’s view that ‘war is hell’ – an ungovernable mess that by its very nature transgresses all our usual moral rules – is perhaps less popular than it once was. War is undoubtedly hellish, but few people these days think that it is ungovernable.
We prosecute soldiers and state leaders for war crimes – a category that makes sense only against the assumption that even in conditions of war, some actions are prohibited. And I suspect that most people believe that war crimes are moral wrongs, and not mere violations of the laws of war. But even granting that war is subject to moral rules, many people are skeptical of the claim that war is subject to the very same moral rules as apply in ordinary life.
I cannot give a full defence of the revisionist project here. But I want to emphasise the central tenet of this view because I think it is in fact a claim that many people find intuitively plausible, notwithstanding their skepticism about its implications for war.
The most important claim of the revisionist school is that the mere fact that my project is political, or pursued by a group, or pursued by a political group, cannot have any bearing on whether I am permitted to harm people who have not consented to be harmed.
This is not to say that there cannot be political goals that are worth fighting and indeed killing for – I think it can be permissible to kill for political goals, and that it can be permissible to kill innocent, non-consenting people for political goals. But it’s not the fact that the goals are political that justifies the killing. Nor is it the fact that the killing is undertaken on behalf of a group.
Many political groups have goals that are deeply immoral, and there’s nothing about the fact that they are a political group that could give them greater claim to cause harm in pursuit of their goals that would be enjoyed by an individual inflicting those same harms for those same reasons.
The only thing that can give moral justification for harming is the moral value of the goal, and even then there are weighty constraints on what can be done in pursuit of that goal, such as the constraint of necessity that I have discussed here.
If one accepts that being a group, or even being a political group, has no bearing on the moral conditions that determine when one may cause harm, then the revisionist project, which denies states and their representatives the special moral permissions to do harm that are afforded to them by the traditional view, should be an attractive one.
IDF/Flickr
The second likely objection concerns my claim that it would be wrong for Israel to kill a hundred innocent Gazans in order to save a hundred Israeli lives. Some people, such as the philosopher Thomas Hurka, believe that states are permitted to give their own citizens’ lives extra moral weight when they are determining what to do. He likens this to the permission that parents have to favour their own child’s welfare over the welfare of others. So, even if it’s generally true that killing is morally worse than letting die, in the case of a state that is acting to defend its citizens, the state may kill more people in another state than it saves in its own.
It’s worth noticing that this argument, applied in the context of Gaza, would still require that the Israelis meet the other conditions I have discussed, such as force being a last resort. We also have the complication that Israel exercises control over Gaza and is therefore effectively in loco parentis with respect to Gaza’s residents. By the lights of Hurka’s argument, this would mean that Israel is not permitted to prefer Israeli lives to the lives of people in Gaza.
But even setting these things aside, I think Hurka’s view is mistaken in principle. It has the implication that in the example I gave above of driving my child to hospital, I do nothing wrong if I foreseeably and lethally run over your child. That strikes me as very implausible. I think it is probably true that if I am able to save only my child or your child – say both are drowning in a swimming pool and I have time to pull out only one – then I am permitted to choose to save my child.
I need not, for example, toss a coin to give each child an equal chance of survival. But I may not kill your child in the course of saving mine (unless, perhaps, she is certain to die anyway, in which case a lesser-evil justification might again obtain). Even granting that an agent-relative reason to save my child has some genuine moral weight, it cannot permit me to cause equal or greater harms to innocent people than the harm that will otherwise befall my child.
Finally, but importantly, we might think that my claim that Israel’s war is unjust because (amongst other things) it is not a last resort somehow entails that Hamas’s campaign is just. But that does not follow [See Hosein & Almotahari on the morality of Hamas’ actions].
It’s perfectly possible for a war to be unjust on both sides. Indeed many – perhaps most – wars fit this model. Hamas act wrongly both in firing missiles into Israel and in exploiting Israel’s actions to gain support for their campaign. Palestinians have a right not to be subjected to Israeli control. But nothing that Hamas does, or plan to do, has a prospect of ending Israel’s control over Gaza.
Hamas cannot defeat Israel by military means, and Israel has repeatedly shown that it will react with overwhelming military force to Hamas’s strikes. Hamas’s actions therefore foreseeably make conditions worse for the people of Gaza. By hijacking the Palestine people’s legitimate grievances against Israel, Hamas undermines the Palestinians’ own interests by making peaceful resolution of the broader conflict increasingly unlikely.
Even when one has a just cause, such as the alleviation of avoidable poverty and oppression, one may not use force that endangers innocent people unless that force has a reasonable prospect of success. Given, then, that non-violent alternatives not only avoid pointlessly harming innocent people but also have a better prospect of success, Hamas’s missile campaign against Israel is also unjust.
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