On July 24 at the Catholic Social Thought, Politics, and the Public Square page on Facebook, Jackie Turvey Tait asked if any Catholic moral theologians who are conversant with just war theory would comment on the current conflict in Gaza. What follows is a co-authored (Jackie and I) reflection resulting from that request.
When Israel launched Operation Protective Edge in response to cross-border terrorist rocket-fire, European (see here and here) and US leaders endorsed their claim to have just cause. But were they right to do so? Do the on-going attacks conform to just war criteria? These are separate questions; both are important. We seek to address these issues from the perspectives of international law and Catholic theological ethics.Â
Photo from Huffington Post
The just war tradition, which St Ambrose and St Augustine, drawing from Greek and Roman thought, introduced into Christianity, is the moral bedrock for a significant body of international law on the criteria for legitimate military action and for the moral conduct of armed hostilities. Its requirements are not carved in stone, it is a living, evolving tradition that continues to develop as theologians and legal scholars critique and explore its relevance to contemporary warfare. But the potential for escalation into unconscionable atrocity remains an ever-present spectre inherent in war, and the just war tradition—however flawed and fluid its marriage of pragmatism and principle—remains our best mechanism for reining in excessive violence and keeping open the possibility of post-war peace and reconciliation.
At this time, most accounts of just war include three types of moral criteria. The jus ad bellum category has criteria that must be satisfied to justify armed military action. Even if jus ad bellum can be established, this is a necessary but not a sufficient condition for a just war. The conduct of armed hostilities throughout their duration should conform to the standards of jus in bello. Action undertaken during the course of the war should have due regard for non-combatant immunity and at minimum should weigh the likely military advantage against foreseeable collateral damage. And jus post bellum considerations have to do with establishing a just peace after the shooting stops. In sum, if you have the right to fight, you must fight rightly and, furthermore, you must win rightly.
As regards the jus ad bellum justification for the Israeli action commenced on July 7th, Catherine Cavanaugh questions whether the rocket attacks from within Gaza could be said to have breached an existing state of peace, given the long and complex history of conflict in the region in which Israel could be construed as the aggressor. However, if the parties were already engaged in hostilities, the rocket attacks clearly fail the jus in bello test of discrimination so cannot be construed as a legitimate act of war directed against enemy combatants. By contrast, the initial phase of Israeli retaliation might be said to have been within the requirements of jus in bello. Alternatively, and perhaps more plausibly, if a state of peace—however short and fragile—could be said to have been in place, Israel arguably had the right under Section 51 of the UN Charter to reasonable and proportionate self-defence as a last resort in response to an attack violating their territorial integrity.
However, there are several important caveats here and the European Institute for International Law and International Relations (EIILIR) questions whether the jus ad bellum criteria of last resort and proportionality to the original provocation were met in Israel’s decision to go to war. Moreover, whereas the EIILIR appears to accept the claim to just cause under Article 51, the International Court of Justice—in a 2004 advisory opinion—rejected its applicability to attacks originating within an occupied territory (and see here). If Israel’s relationship with Gaza is construed as an occupation, a categorisation that they refuse to recognise, the right to retaliation against rocket attacks remains, but only in accordance with jus in bello and occupation law which confers a greater duty on the occupying power to ensure protection of the civilian population.
In addition, since the objective of a just war is to confront evil with reasonable force with a view to establishing a just peace thereafter, we need to question whether the military operation was embarked upon with right intention and with a reasonable prospect of achieving its military objectives. The aim of obliterating infrastructure to punish the citizens of Gaza as articulated by Gilad Sharon in 2012 goes some way beyond the scope of “reasonable force with right intention” encoded in international law. And prospects of success—if the aim is to prevent future terrorist attacks by use of overwhelming force—are questionable if not foredoomed: terrorism feeds on the grievances of the humiliated.
Civilian casualties are clearly inevitable in any conflict—the more so where military action takes place in an urban theatre of war. However the numbers of civilians killed and injured have been extraordinary, with a very high proportion of child casualties amongst them. It seems unlikely that such extensive collateral damage can be said to have been unavoidable or proportionate to the military advantage secured, much less consistent with the duty of care owed to civilians under occupation. Hence the question arises as to whether non-combatants are being deliberately targeted in retaliation for similarly indiscriminate terrorist attacks. And—even if the bombardment can be shown consistently to have aimed only at the destruction of legitimate military targets—it is increasingly implausible to argue that the criterion of discrimination is being been upheld. Sharon’s 2012 Jerusalem Post op-ed is typical of attempts to justify indiscriminate attacks. His argument that the Gazan citizens are not innocent is irrelevant—the children of Gaza are innocent even on his own terms and international law requires military action to distinguish soldiers from non-combatants (irrespective of their “innocence” more broadly construed) and to refrain from deliberately targeting, indiscriminately attacking or disproportionately harming the latter.
In the light of mounting evidence of indiscriminate attacks, Archbishop Silvano Tomasi, Vatican representative to the UN Human Rights Council, called for restraint on both sides. “Consciences are paralyzed by a climate of protracted violence, which seeks to impose solutions through the annihilation of the other,” Tomasi said. “Demonizing others, however, does not eliminate their rights. Instead, the way to the future lies in recognizing our common humanity.”
Oxford scholar Dr. Sara Yael Hirschhorn agrees, arguing that”‘dehumanization is our worst enemy.” She questions how we can ever have peace “without acknowledging the ‘other’ as a person with human rights” and how we can ever co-exist without compassion. Recalling Shylock’s defence of our common humanity in Shakespeare’s Merchant of Venice (“Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?”), she suggests that “if we can continue to remind ourselves that both Israelis and Palestinians are people deserving of human rights—and also capable of acts of vengeance—historical empathy may lead us one step closer to an enduring peace.”
Since the establishment of the State of Israel there has been a flourishing of Jewish thought on the ethics of war—following a long history of stateless existence which occasioned no practical necessity for such reflection. This body of thought acknowledges such concepts as discrimination and proportionality (Charles Guthrie and Michael Quinlan, Just War: The Just War Tradition: Ethics in Modern Warfare [London: Bloomsbury, 2007], p. 48). Similar moral reasoning about just war may be found within Islamic thought (e.g., Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations [New York: Palgrave Macmillan, 2011]). Vengeance is by nature indiscriminate and disproportionate; it intends only harm. It is futile and counter-productive: in harming the prospects for future peace, vengeance harms the avenger and the common good as well as its intended victim. Let us hope that both Palestinian and Israeli leaders will reject Shylock’s insidious rhetoric (“the villainy you teach me I will execute…”) and listen instead to the better angels of their nature.
Jacaranda Turvey Tait is a doctoral candidate in the Department of Theology and Religious Studies at the University of Chester. She is a graduate in chemistry and law, and her research interests are in the application of Catholic natural law theory to environmental ethics and public policy. Tobias Winright holds the Maeder Chair in Health Care Ethics at the Gnaegi Center for Health Care Ethics and is Associate Professor of Theological Ethics in the Department of Theological Studies at Saint Louis University. He co-authored After the Smoke Clears: The Just War Tradition and Post War Justice (Orbis 2010).
Can’t thank Jacaranda and Tobias enough for this reflection, for putting their expertise on the ethics of the use of force in the Christian tradition to the sad task of assessing the limits of justice with respect to the Israeli/Palestinian conflict as it presently stands.
The massive amount of horror with which this current flare up of violence confronts the international community has left me relatively speechless. However, I want to comment on the issue of the use of force from a different perspective than just war theory, that of liberation from occupation. Other questions brought up on the CST Facebook page referenced above regarding the ethics of this current war include whether the construction of tunnels for supplies (some supplies being ammunitions), the storing of supplies in schools and other civilian centers, and the indiscriminate firing of rockets from Palestinians in Gaza to civilian Israeli targets respects any of the criteria of the just war tradition. On first instance the answer to this is no.
However, history provides multiple examples where occupied peoples resort to these measures in order to be able to resist the occupying force. A classic example are the revolutionaries during the war of independence in the nascent United States, who stored munitions in taverns and other public buildings, sabotaged civilian ships, and in other ways tried to interrupt England’s economic interests in the colonies. These efforts were in addition to direct warfare between the colonies and its allies, and the British.
Jacaranda and Tobias have done a good job of noting that whether just war criteria is met in this conflict depends on how we define aggression, and, more difficult still, how we define peace as a right intention. What does peace look like to the parties involved? Evidently, for Israelis peace means strictly the cessation of violence, with no consideration of the possibility for a Palestinian state, with all the land rights this would entail, whether boundaries defined by the United Nations and other efforts at coexistence in 1948, nor in 1967, nor even in 2000. But from a post-colonial perspective, peace for Palestinians does not come with the mere cessation of the violence, but, rather, necessitates the acknowledgment of the Palestinian state and respect for internationally recognized borders. Therefore, until this happens, there will be no peace.
As an occupied people their strategies for resistance against the occupying force does not respect just war criteria. But as an occupying force, neither does Israel’s use of force in a war of aggression and expansion. I acknowledge many will not share my perspective. Possibilities for a lasting peace will depend on massive efforts at civil and military disobedience on both sides, but also moral will on the part of the powers supplying both sides with more ammunition than there are human beings in the region, beginning with the United States. And prayer. Dear God in Heaven, prayer, that through grace we more deeply and concretely understand our shared destiny as a human family, and the responsibilities and duties this implies.
Before one begins a legal analysis, the facts and evidence must be clearly and objectively stated and supported.
Unfortunately, the authors failed to do so.
Their opening statement,
— The statement fails to trace the actual context and sequence of events. That context MUST include
– The decision between PLO and Hamas to form a unity government for Palestinians;
– The kidnapping and slaying of three Israeli teenagers, which Israel blamed on Hamas, without evidence. It has since been determined that Hamas had nothing to do with the kidnapping and slaying of the teens, and there are indications that the Israeli government was well aware of this FACT.
Further, although Israeli officials were aware very early on that the teens were dead, the government played out a “search” for the kidnapped for many days, heightening agitation among Israelis to a state of bloodlust.
– In “retaliation” for the kidnapping of those Israeli teens, several Palestinians were killed, including a sixteen-year old who was kidnapped by Israelis, forced to drink gasoline, and set afire after being tortured (his genitals were mutilated).
– in a bid to force the family of the immolated youth to remain silent, his cousin, a 15-year old American of Palestinian origin who was visiting his sick grandmother, was snatched by uniformed Israeli forces; beaten to unconsciousness; taken to an Israeli detention facility where he was held for several days without medical treatment for his severe head and face wounds.
–The authors’ opening statement indicates a bias by characterizing one of the parties; namely, the rocket fire is attributed to “terrorists.” When all of the above evil acts carried out by Israelis, both governmental and citizenry, it seems prejudicial to attach the label “terrorist” to the otherwise powerless side that signals its resistance to those acts.
ALL of this information is essential to consider before a determination can be made whether there is a legitimate casus belli.
The authors failed to make that preliminary determination because they failed to assess ALL of the readily available context, facts and evidence.
MT Davila, thank-you for your comments. The question of how the moral constraints of just war apply to less formal warfare is interesting. Some of the discussion over at Catholic Social Thought, Politics and the Public Square raised the provocative question ‘what would count as just terrorism?’ My own view is that the word should be reserved for politically motivated and deliberately indiscriminate acts of violence against civilians. Others narrow the definition further, categorising such acts authorised by a state actor (or perpetrated without such authority by soldiers) as ‘war crimes’ and use ‘terrorism’ to refer only to attacks on civilians by individuals or groups who lack ‘legitimate authority’ to wage war in traditional just war analysis.
Solonto Croesus, regarding the question of whether the rocket attacks on non-military targets in Israel should be categorised as ‘terrorism’, I stand by our use of the word in this context. However if you want to argue that Hamas authorised the attacks in their capacity as the legitimate governing authority in Gaza as part of an on-going war in which Israel is the aggressor, perhaps ‘war crimes’ would be the appropriate vocabulary. It would be hugely constructive if Hamas were to accept the authority of the ICC and take action to ensure in future that their own military action conforms to the standards to which they would like to hold their enemies.
As a general rule, I would agree with you that ‘before one begins a legal analysis, the facts and evidence must be clearly and objectively stated and supported’. However our purpose here was not to state the case for a particular conclusion. Our aim was to provide an accessible clarification of the moral framework within which a reasonable discussion of the ethics of this complex and multi-faceted conflict might take place. Whilst the background to the conflict has been extensively covered in media reports, a just war analysis of the issues has been missing from the conversation, with moral vocabulary being misused for rhetorical effect to demonise the enemy. In the UK, analysis of this conflict has been paralysed by attempts to ban the use of the words ‘disproportionate’ and ‘indiscriminate’. Both here and in the USA it seems the right thing for moral theologians to break the silence and open up the discussion. I make no apology for calling a spade a spade, irrespective of who is wielding it.