On Harms to Noncombatants in Gaza

By Jason Lee Steorts

Saturday, May 11, 2024

 

A war — culture or shooting — is like crack to moral bullies. They see their opponents as wicked, have little tolerance for complexity and for ambivalence in response to it, and demand with rhetorical and sometimes actual violence that others endorse their view. This is unfortunate, because the questions raised by a war are usually not simple. Nor are they of a single category: One must take in-principle answers to moral questions and apply them to complicated and changing factual situations, as well as to predictions about those situations made conditionally on possible courses of action. Complexity and ambivalence will be complements of realism.

 

Welcoming them, I’d like to think about whether the Israeli campaign against Hamas has been morally justified despite its harms to noncombatants in the Gaza Strip. I will often be making judgments that are conditional — “If this is so, then I think that is right,” “If that is so, then I think this must be wrong” — which should be taken as accurate statement of a complicated view rather than as a refusal to take one. You may not agree with my views but, if not, I hope you will disagree in precise ways that clarify your own — a benefit of disagreement done right.

 

Not everything is complicated. There is moral bullying and then there is moral bullying. Some defenders of the war go too far in casting disagreement as personal failure. But this cannot really be compared to ripping down posters of Israeli hostages, refusing to let Jews enter buildings and outdoor spaces on college campuses, and calling for the triumph of Hamas “from the river to the sea.” Israel has a right to exist and to defend itself. The Hamas massacres of October 7 (it is good to use the plural because it forces the imagination to become more specific), the torture and murder of whole families, the sadistic rapes, the abduction and abuse of hostages — all of that is as obvious a casus belli as can be imagined. Along with Hamas’s vow to carry out similar attacks in the future, it justifies Israel in seeking Hamas’s total destruction. To seek it even seems an obligation of state, provided that it can be sought at acceptable cost.

 

The ambiguity we will encounter is foreshadowed in that final clause. Granted that Israel’s cause is just, what are we to think of its means, and of the effects those means are having on others than their targets? Do the killing of large numbers of noncombatants — we must assume the number is large even if we should take the official Hamas figure with skepticism — and the lack of food and medicine Gaza render the war unjust in execution even though its purpose is good?

 

***

 

A just war will almost always see the killing of noncombatants, but it is wrong to kill them on purpose. That insight will be our ethical North Star. It is an application of what’s known as “double-effect theory,” a niche of ethics that began with Thomas Aquinas and other medieval Catholic thinkers and has influenced modern views and law concerning justice in warfare.

 

In his famous book Just and Unjust Wars, the modern classic on the topic, Michael Walzer sums up the conditions that must be met for an act to be permissible under double-effect theory:

 

1.      The act [of war] is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war.

2.      The direct effect is morally acceptable — the destruction of military supplies, for example, or the killing of enemy soldiers.

3.      The intention of the actor is good, that is, he aims only at the acceptable effect; the evil [of killing civilians, say] is not one of his ends, nor is it a means to his ends.

4.      The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under [Henry] Sidgwick’s proportionality rule, [according to which one may not do “any mischief which does not tend materially to the end {of victory}, nor any mischief of which the conduciveness to the end is slight in comparison with the amount of mischief”].

 

The first three requirements generalize our intuition that there will be bad outcomes in a just war but what’s wrong is to seek them. One seeks only what is “good” or “acceptable”; the “evil” secondary outcome is outside one’s intentions even if one foresees it. A way of testing this intuitively is to ask whether one would prevent the evil outcome if one could do so without forgoing the good one.

 

Why the detail that one must not seek the evil outcome as means to one’s just end? This is part of what it is for the evil effect to be unintended; one intends the end, and therefore one intends the means to it — and so it will not do, indeed it is a kind of contradiction, to say “I intend only this good end but not the evil means of achieving it.” In practice the requirement prevents casual sacrifices of innocents as motivated by sophistical casuistry. One may not, to borrow a philosophy-class cliché, throw a man onto rail tracks as one’s means of stopping the train from hitting some larger number of people. One also may not terrorize a civilian population into submission to win a war.

 

The fourth principle is a problem because it is vague. What amount of mischief is disproportionate, Professor Sidgwick? And how are we to measure it? Answers will seem artificial and arbitrary if we try to assign exact amounts of utility and “weigh” outcomes as on a scale. But the requirement can be interpreted more holistically, as an “on the whole” taking of everything into account. Nothing depends on Sidgwick or utilitarianism (Sidgwick was a utilitarian); statements of double-effect theory normally include some vague total proportionality criterion of this kind, which takes the form of the writer’s preferred meta-ethics.

 

I think the fourth principle cannot plausibly mean, for our purposes, that justice in war requires that one cause fewer deaths than one’s own side suffers. If terrorists were to kill a hundred civilians and counterattacking the terrorists killed a thousand, to counterattack would not therefore be unjust, because it matters that one side is killing civilians deliberately while the other is trying to stop the first from doing so.

 

On the other hand, most of us would agree that not any amount of suffering may be inflicted on people, even if unintendedly, in order to achieve any legitimate military purpose. It matters how important the purpose is; it matters, so to speak, that no one burn the world down while winning a battle.

 

Here is a standard example to illustrate an act of war that would easily meet all the double-effect requirements. Suppose there is a missile factory. Suppose you need to bomb it. You intend to bomb it at night when a janitor is working there. There is no way to warn him without endangering the mission. You know that by bombing you will kill him. But you are not aiming at his death — it is an unfortunate but unsought consequence of what you must do. You are even trying to minimize such deaths by not bombing during the day. So it is all right to bomb the factory and kill the janitor.

 

***

 

Consider now the Israeli military campaign, and in particular the highly destructive bombing of targets in urban areas. There is a strong prima facie case that it satisfies the first three conditions. The war and its aim — to destroy Hamas — are just. The intended effect of the bombing — to kill Hamas leaders and fighters and to destroy Hamas’s underground tunnel network — is legitimate. And I think there is no good evidence that Israel intends the deaths of noncombatants as either means or end.

 

A case can even be made that Israel has met a stricter form of the third requirement than has been traditional. Walzer, concerned that the standard version justifies too much, adds the portion I have italicized:

 

3.      The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends; and, aware of the evil involved, he seeks to minimize it, accepting costs to himself. 

 

Israel has tried to minimize the evil effect of harming noncombatants by warning them in advance of attacks — something that presumably reduces the element of surprise and involves the use of time, money, and equipment for purposes other than military victory.

 

It has not been easy or even always possible for Gazans to flee, given the damage to roads and other infrastructure, the difficulty and expense of finding transportation, the overall chaos of the war, and Hamas’s contrary demand that everyone remain in place. But it is hard to see how such problems could have been prevented if a large-scale bombing campaign was to be conducted at all. Walzer reports that Maimonides counseled besieging a city on three of its four sides and pronounces this absurd (since it is no longer a siege). But it is not the worst description of what Israel has tried to do as it has bombed and invaded Gaza, nor can the attempt be dismissed as an absurdity.

 

Israel has been criticized for not using smaller or more precision-guided ordnance, or simply refraining from bombing in certain areas. Some of those criticisms have come from the Biden administration, which has noted occasions in the Middle East when the United States fought with more restraint. In the early days of the war, Israel’s air-force chief, Brigadier General Omer Tishler, said that “there is always a military target, but we are not being surgical.” This could be taken as a simple refusal to “minimize” the “evil involved” and an argument for the Biden administration’s position. But it could also reflect an elevated sense of the urgency of the military goal and a consequently higher tolerance for civilian casualties. If, after October 7, it is more important to destroy underground tunnels and kill Hamas fighters and leaders without delay, then the use of large bombs, and bombs dropped in crowded areas (which have been warned), may be closer to a necessity.

 

That is an important point: the relationship between double-effect requirements and the perception of necessity. What counts as a good-enough effort at harm reduction, just like what counts as a proportionate “on the whole” cost, depends on our prior conclusions about the importance of the military goal. The mischief of double-effect theory when it justifies too much usually comes from a false belief that we simply have to go do this or that disturbing thing and therefore, very sadly, must tolerate the evil consequences of doing it. The motivating force all comes from the judgment of necessity. So we had better get it right, lest what seemed a regrettable side effect turn out to be a sin.

 

Some argue that Israel’s military goal — to destroy Hamas — is unachievable. If this were true then the campaign could not be necessary, since what is impossible can hardly be required. Reports of new Hamas fighters in northern Gaza and the recent launching thence of Hamas rockets have been cited in support of such an argument. But this is to be too literal about the meaning of “destroy.” Israel may not be able to neutralize every Hamas cell in such a way that no new attacks will happen. It nonetheless is good that Israel attack as many Hamas fighters as it can and weaken the organization as much as possible.

 

There is also, however, a way of being less literal about the idea that the war goal is impossible. It is to think that the destruction of Hamas will have to have a diplomatic component, will happen somewhat gradually, and will involve in some measure a reduction of the group to irrelevance rather than its complete military destruction. In the early days of the war, former Israeli prime minister Naftali Bennet — no political progressive — outlined for New York Times columnist Bret Stephens a plan to sideline Hamas that would not have seen a large-scale ground invasion or a massive bombing campaign, but rather the creation of a buffer zone, the use of special-forces raids, and an eventual exile of some of Hamas’s political leadership to a state that would have them. This, Bennet maintained, would be more realistic as strategy and would not turn world sympathy against Israel.

 

One feels the possibility of tragedy in our inability to know whether Bennet was right. But I don’t think that this lack of certainty warrants us to conclude that Israel’s actual strategy has been wrong. The judgment that large-scale bombing and invasion were necessary seems at least reasonable: It is possible to see the strategy as necessary. To say that it must necessarily be seen as necessary would be to set a very high bar.

 

Something similar goes for the idea of relying more on special-forces raids. Walzer cites the Vemork raid in World War II, in which the Allies destroyed a heavy-water plant in Nazi-occupied Norway, as compliant with his revision of the third requirement. Rather than bomb the plant, which would have killed many civilians, a special-forces team was dispatched to destroy it. The first effort failed and the special forces were all killed. The second effort succeeded. Certainly the raid was heroic. But it seems wrong to say that bombing the plant would have been wrong, given the stakes. And regardless, as Walzer notes, one cannot fight a whole war of Vemork raids. That applies also in Gaza if, again, something like the Bennet plan was not going to be followed. We might criticize targeting decisions, but if bombing and invasion are plausibly necessary, then criticisms should be circumscribed to the execution of that strategy and exclude demands for a different one.

 

***

 

It is necessary, however, to reassess what is permissible in relation to a goal if the costs of pursuing the goal become too high. One cannot really know the cost of a military goal in advance, since one cannot really predict the course of a war. Urgent recently has been the question whether Israel should bombard and invade Rafah, in southern Gaza, in order to kill the remaining thousands of Hamas fighters and destroy the large underground tunnel complex there. It has already instructed some hundred thousand people to evacuate the city, and air strikes and ground fighting have begun.

 

The returns on killing common fighters by bombing and invading urban areas can be expected to diminish the more fighters have been killed, even as the reputational damage to Israel rises with the number of noncombatant deaths. Since Israel depends on alliances with and sympathy from other states, an outcry over the death toll must be considered a matter of strategic concern for it. The concern is also moral; as we said above, justice in a warfare is not a simple matter of which side kills fewer people, but the amount of mischief still does grow with the civilian death toll. Whatever our precise judgment, we should all want the campaign to become more surgical if it can.

 

There is also now a risk of famine, or already an incipient famine, throughout Gaza. Whether it has begun is disputed, but it is not reasonably in dispute that Gaza cannot feed itself and that widespread death from malnutrition and attendant disease is imminent if large amounts of food aid and medicine are not distributed soon.

 

Early in the war, Israeli defense minister Yoav Gallant said that no food would go into Gaza until the hostages came out — a threat of an act that would clearly violate double-effect requirements. But actual Israeli policy before the Rafah fighting began had contradicted his statement, by consistently seeking to increase food aid (for example, by opening more border crossings and endorsing a U.S. plan to build a pier on the Mediterranean for the delivery of aid by boat). The food and medicine massed along the Gazan border had not been distributed effectively for various reasons: delays inherent in Israeli inspections (to ensure that prohibited items were not smuggled to Hamas), looting of aid convoys (by Hamas fighters among others), road damage, and combat. Since the Rafah fighting began, however, almost no aid has gone in at all, because Israel has closed the most important crossing while Egypt has inexcusably declined to let food trucks enter through a different one.

 

Israel will not have intended a famine if one does occur, which is to say Israel will have satisfied the original three requirements of double-effect theory as quoted above. It nonetheless seems wrong in all but the most exceptional circumstances to use methods that, predictably, will trigger a famine — and even if other parties are also casually and morally responsible for its occurrence (as Egypt and Hamas are in Gaza). To say this is not to claim that Israel should offer a permanent cease-fire and give up the goal of destroying Hamas militarily. It is only to say that, however the war continues, it must not continue in a way that causes the noncombatant population to starve.

 

To knowingly trigger a famine would of course violate Walzer’s revised third requirement: It would involve accepting rather than minimizing a catastrophic harm to civilians who could not, as with the bombings, be directed to flee. The logic of besieging a city on three sides does not apply to a famine.

 

Not all will accept Walzer’s revision, but there is also the original fourth requirement: to do on the whole proportionately more good than evil. It is hard to see how the excruciating cost of a famine, in both moral and strategic terms, would be worth the marginal benefit of killing the few remaining battalions of common Hamas fighters. Leaders of the organization are known and can be targeted opportunistically at a later time, as can tunnels be bombed. Common fighters may disperse but will not be effective without leadership and organization, and can perhaps also be targeted later.

 

My claim is not that, in principle, one may never trigger a famine (strange thing to consider; rarely discussed in advice columns). But again I would refocus discussion on the questions of necessity and certainty. If for whatever reason the only way to prevent a nuclear attack were to invade the prospective attacker’s territory in a manner that would cause a famine there, and if one were certain or close to it that no other method could prevent the attack, then I think one would have to invade and regret the famine. Similarly, if we had very strong reasons to think that Israel’s survival, or even the prevention of more October 7 massacres, required military activities that would cause a famine, then I would consider the famine a tragic necessity. But I do not think such a connection has been shown clearly enough to justify such a course now. Nor do I think that the remaining Israeli hostages will fare well as food runs out.

 

Notice how our moral and factual uncertainties rise with each statement: (1) Israel has a right to exist and defend itself and its people, and therefore, given October 7, it should seek to destroy Hamas and rescue the hostages. (2) A large-scale bombing and ground invasion is part of the best strategy for destroying Hamas and rescuing the hostages. (3) The pursuit of those goals requires that the campaign be continued right now rather than postponed for any length of time, even if continuing it now will trigger a famine. The moral and rhetorical force of (1) does not transfer all the way to (3). It diminishes, in the style of multiplying denominators, at each step along the way.

 

This observation helps give form to the fourth requirement, that one not do too much mischief in relation to the good to be achieved. This should not mean that Israel must accept more October Sevenths as preferable to famine in Gaza if that definite choice is put to it. It should mean that the immediate continuation of the war cannot be connected so clearly to the prevention of another October 7 as to make famine an acceptable cost. It looks like burning a world down speculatively.

 

Of course, we have been assuming that famine is sure to follow the continuation of the campaign and can be prevented otherwise. Perhaps that is false. But the moral risk of uncertainty goes both ways. It would be correct and tidy to say that continuing a strategy becomes wrong at just the point where we know that doing so will cause a famine. But it may not be possible to identify that point. Responsibility and blame therefore apply in a probabilistic way, so that to risk a famine is more wrong the smaller one’s margin of error and the lower one’s certainty as to the need for acts that might cause the famine. An obligation exists not to be reckless, and it rises with the magnitude of the risk.

 

***

 

Let me end by considering two kinds of objections that seem like natural replies to the arguments I have made.

 

The first acknowledges that the harms to noncombatants are atrocious but assigns responsibility for the atrocity to Hamas alone. It is, after all, Hamas that prolongs the war by not surrendering, Hamas that started the war by committing acts worthy of Satan. Hamas routinely uses noncombatants as human shields; it commands Gazans not to flee combat zones; it hides tunnels and weapons beneath hospitals and mosques and schools; it abducts and abuses and kills hostages; it loots food trucks; it fights without uniform. Surely whatever harm comes to Gazans is Hamas’s fault, not Israel’s.

 

It is true that Hamas is guilty of all those things; there really is no defending it. And it’s true that all harms to noncombatants would end if only Hamas abandoned its wicked cause, freed its hostages, and surrendered. But from this it cannot follow that concerns about the suffering of noncombatant Palestinians no longer apply, because the duty to refrain from harming them unjustly is owed directly to them. While the choices Hamas makes do place the burden of civilian casualties on it in some contexts (as when human shields are killed in necessary attacks), and do justly affect how Hamas fighters themselves may be treated (they are not owed Geneva protections, for instance), those choices do not decide in general how much Israel should care about civilians in Gaza: The human shields are on Hamas, but there are also the people in the building next door. And it changes nothing that Gazans elected Hamas as their government or that some four in five Palestinians endorse the October 7 attacks. A terrible choice and a terrible view, but civilized nations do not kill people for how they vote or what they think.

 

Consider again that whether one fights with just means is a separate matter from whether one’s cause is just. It will usually be true in a war that one side’s cause is just while the other’s is not, or at least that some side has more justice than any other; but if this means that the party with justice behind it may simply do whatever it likes and hang the pain of noncombatants around the neck of an enemy government, then not even massacres will be ruled out. And once we do adopt principles that imply limits to the conduct of war, we will have to apply them to each individual strategy or tactic. We cannot refrain from self-judgment simply because Hamas and its purpose, unlike Israel, are barbaric.

 

The second sort of objection appeals to history. Sieges and blockades and even attacks on civilians have been part of warfare since antiquity. The Union blockaded the Confederacy and Britain blockaded Wilhelmine Germany. The Allies in World War II went so far as to massacre civilians from the air in order to demoralize Germany and Japan.

 

Double-effect theory cannot be right if the firebombing of Tokyo and the dropping of atomic bombs (in preference to accepting a conditional surrender) were right. But I’ll stick with double-effect theory. Massacring civilians is wrong even in a just cause, and it’s good that doing so is less accepted now than it was 80 years ago. This is not to concede, however, that opposition to such methods is a newfangled idea. Thomas Aquinas would certainly have had to be horrified by Hiroshima if he had been around to apply his ethics consistently in 1945. As for the practice of warfare in antiquity, it is best approached as a museum of the abhorrent. Not that this especially matters, since the fact that something has been done is not a reason to keep doing it. History absolves posterity of nothing.

 

Sieges are now prohibited under the Geneva Conventions (as necessarily targeting noncombatants) while blockades are not. The Israeli policy in Gaza is neither precisely a siege nor precisely a blockade. But the blockades in the Civil War and World War I are worth considering as contrasts with the Gazan situation.

 

A defense of the Union and British policies can be found in “Noncombatant Immunity and the Ethics of Blockade,” a 2019 paper by Robert Mayer (available online). Mayer thinks that it is always wrong to starve civilians on purpose, but he does not think that that is what the British and the Union were up to. Germany had enough food to keep the whole population alive if only it had rationed more equitably. The British therefore did no more than force the German government “to choose between providing for [all] its people and maximizing its military might [by giving larger rations to soldiers].” The German government chose badly, and the ensuing deaths were on it. Similarly for the North’s blockade of the South: The purpose of the blockade was to make life harder for the Confederacy and prevent the sale of cash crops, but the blockade did not starve anyone. If people starved, it was because of Sherman going berserk and similarly colorful episodes.

 

Mayer’s argument generalizes, then, as the idea that blockade is justifiable only insofar as it compels hard choices about the allocation of resources; it should not be done if the blockading power knows that the blockade will make people starve. This of course raises the problem we mentioned above of not being able to identify a tipping point. Mayer’s position depends on the possibility of seeing that there is enough food to go around, but that certainty will often be elusive. When it is, the line between forcing hard choices and starving civilians to death collapses into a probabilistic willingness to commit slow-motion massacre (or, if you prefer, a merely probabilistic determination not to).

 

For our purposes, though, what is most important to see are two things. On one hand, the intention of Israel is better than that of the Union or the British; it is not trying to use hunger as a weapon (even one aimed only at forcing hard choices). But on the other hand, and to me dispositively, the situation of Gaza is not like that of Germany or the Confederacy. It is like that of Yemen. Yemen has in recent years suffered famine in consequence of a Saudi-led blockade of the Houthis. Discussing that blockade, Mayer wrote that it “should be acceptable for a short period at most” since Yemen is not self-sufficient in food, and that, “in such cases, fault for the starvation that ensues must be assigned to the blockading force, because it is not feasible for the local authorities to feed their own people.”