Why the International Criminal Court Would Have Arrested Churchill and Eisenhower
Legal reasoning is only as good as the ethical concepts it uses. Therefore, the International Criminal Court’s decision, last November, to issue arrest warrants for Israel’s Prime Minister and Defence Minister was flawed.
The ICC claimed reasonable grounds for believing Benjamin Netanyahu and Yoav Gallant guilty of the war crimes of “of intentionally and knowingly depriv[ing] the civilian population in Gaza of objects indispensable to their survival”, creating “conditions of life calculated to bring about [their] destruction”.
The grounds given were twofold. First, Israel’s failure to “facilitate relief by all means at its disposal”. And second, its failure to “ensure that the civilian population in Gaza would be adequately supplied with goods in need”. Consequently, the accused may have violated the “fundamental rights to life and health”.
There are two major ethical problems with this. The first concerns the concept of intention. We often do something in full awareness that it will have an undesirable consequence we don’t want, but we do it anyway for the sake of a desirable consequence we do want. And if that desirable consequence is more important, or if we are under an overriding obligation to prefer it, then our causing the undesirable consequence is proportionate—provided we take all feasible steps to minimize it. That’s the ethical principle of ‘double effect’. The desirable consequence or effect is what we intend; the undesirable effect we accept with active reluctance.
Take, for example, the case presented in the 2003 film, Master and Commander. During the Napoleonic Wars, HMS Surprise sails into a raging storm in the South Atlantic. A mast snaps and crashes into the sea. The bo’sun warns the captain that the broken mast will capsize the ship unless cut loose. The captain calls upon a nearby sailor to start cutting the connecting ropes. Tragically, the sailor’s best friend is clinging to the broken mast, and, if cut loose, will certainly drown. Nonetheless, in full awareness of the effect of his deliberate action—‘knowingly’—the sailor raises his axe and brings it down upon the rope, tears streaming down his cheeks. Should we say he intended to kill his friend? No, he intended to save the ship and its crew of several hundred. He merely accepted with the deepest reluctance his friend’s death as a side-effect—unavoidable, unwanted, but necessary.
According to this logic, characteristic of the ethic of ‘just war’ thinking, it’s permissible to attack a military objective, knowing it will risk civilian casualties, provided that risk is unavoidable and all feasible measures are taken to minimize it. One may intend the effect of disabling enemy combatants, while reluctantly accepting injury to civilians as a tragic side-effect. The reason for such permissiveness is that, otherwise, the successful waging of war, however just the cause, is practically impossible. Nonetheless, unburdened by concern for military success, the ICC considers that any military action taken in the knowledge that it will put civilians at risk of injury intends—is ‘calculated’—to destroy them.
Telling against the judgement that Israel has any such intention are the measures taken by the Israeli Defence Force to minimize harm—giving advanced warning of attacks, using weapons of minimally destructive power, and providing some humanitarian aid.
Here’s where the ICC’s second flawed concept comes into play: the idea of an absolute, fundamental human right to the necessities of life and health. This is nonsense. Suppose a situation where no water is available, or no one is capable of supplying it, or those capable of supplying it have overriding obligations forbidding them to do so. How can those dying of thirst be supposed to have a right to what cannot or may not be delivered? A fundamental human need only amounts to a right where supply exists and delivery is possible and obligatory. So, whether or not civilians in Gaza have a right to water depends on Israeli intentions, their attempts to minimize civilian risks, and the importance of their military objectives.
But that’s not how the ICC sees it. In its eyes, the fundamental right to the necessities of life have obliged Israel to “ensure” that civilians are given “adequate” provision. Its provision of humanitarian relief as far as allowed by the exigencies of waging war against an atrociously murderous, intentionally genocidal Hamas, is not enough. The right is absolute.
Had it been sitting in judgement on the prosecution of the war against the massively murderous Nazi empire by Britain and the US, the ICC would have issued arrest warrants for Churchill and Eisenhower. While invading Italy in 1943, the Allies caused old men, women, and children to be torn apart by bombs and shells, exposed to the wintry elements by the destruction of their homes, and starved of food and water. They did this ‘knowingly’, aware of the effects of their unavoidably imprecise bombing and shelling. But they didn’t intend civilian harm and sought to minimize it, as far as war-winning allowed. Nonetheless, their efforts weren’t “adequate” to save tens of thousands from perishing.
The imprudent intrusion of a concept of fundamental human rights into the laws of war, and the neglect of the principle of double effect, combine to drive a legal interpretation that makes successful war-fighting unlawful, however just its cause. Thereby the ICC undermines its own authority, forcing states intent on military victory to repudiate its jurisdiction.
" ... it’s permissible to attack a military objective, knowing it will risk civilian casualties, provided that risk is unavoidable and all feasible measures are taken to minimize it."
During this war, Netanyahu and Gallant have ordered other, more discriminating strategies causing far fewer civilian casualties and less destruction of civilian infrastructure: the targeted killing of Hamas deputy leader Saleh al-Arouri in the New Year achieved the objective of degrading Hamas' command structure, killing two other Hamas leaders at the same time. ICC Prosecutor Karim Kahn had submitted applications for warrants to arrest Yahya Sinwar, Head of Hamas in the Gaza Strip, and Ismail Haniyeh, former Head of the Hamas Political Bureau, but later withdrew them following evidence confirming their deaths. Sinwar was killed in a Rafah firefight when only 3 were killed, all Hamas combatants. Haniyeh was assassinated along with his Hamas heavy in a North Tehran guesthouse with very little damage to the room.
So the argument that "risk [of massive civilian casualties in Gaza] is unavoidable" just doesn't apply to the slaughter in the Strip. There are alternatives that have been used and were effective.
The idea that "all feasible measures are taken to minimize it [risk to civilian casualties]" is difficult to defend when 90% of Gazan houses have either been flattened or rendered uninhabitable. That's over 400,000 properties, so "weapons of minimally destructive power" have not been used here.
Eight 2000-pound bombs killed the third ICC-indicted Hamas leader, Mohammed Deif, in a designated humanitarian safe zone. Each bomb has a lethal fragmentation radius of 100m and can penetrate concrete blocks down to their foundations. It is therefore inconceivable that a large number of civilians were not also killed; in a place like Gaza, it's guaranteed, so the idea that they were "unintended" is much like Aquinas debating how many angels can dance on needless points. Furthermore, it is alleged that following the airstrikes, Israeli quadcopter aircraft waited for the ambulance and civil defence teams and opened fire as soon as they arrived.
That Deif was hiding in a safe zone and shielded by civilians is yet another example that Hamas too were exploiting the collateral damage exemption inherent in the Doctrine of Double Effect that under the conditions in Gaza was not inadvertent but calculated and deliberate.
Moral degradation in the Gaza war is no exception. The title of Lord Biggar's fine article admits that morality deteriorated in WW2, and betrays three reasons why in its final paragraph: "The imprudent intrusion of a concept of fundamental human rights into the laws of war ... makes successful war-fighting unlawful, however just its cause. ... forcing states intent on military victory to repudiate its jurisdiction".
I shall address the most alarming of the three reasons last.
The notion of "forcing" more than suggests there is no choice, when we know there are an infinite number. In my previous comment I showed how Israel has actually carried out different ways of killing Hamas terrorists in the Gaza war, and has therefore not been "forced" to kill tens of thousands of civilians, and hundreds of journalists and aid workers. Michael Walzer also succumbed to the "forcing" notion with Supreme Emergency, which he introduced into his 2000 edition, and now every combatant claims they face an existential threat from an aggressor, including President Macron in March, and so are free to act in ways that would otherwise be judged immoral.
It's a justification that has been used also by those who deliberately confuse Jus Ad Bellum with Jus In Bello. Because a combatant believes their cause of going to war to be just, therefore, their excuse goes, their conduct in war is beyond reproach, and this confusion the noble Lord reflects in his "successful war-fighting" comment: because our cause is just, we are entitled to use whatever method and however immoral in order to win the war.
It is this Morality of Immorality that is most troubling. As humans, we moralise about everything, it's our first and last line of defence, and so for ethicists such as Biggar and Walzer - all of a sudden and out of the blue - to suspend ethics for being an "imprudent intrusion" (and put themselves out of work!) seems extraordinary and somewhat perverse, don't you think?