What do the “moral constraints that apply to defensive force” imply in a situation as complicated as the conflict between Israel and Hamas?
In the following guest post, Victor Tadros, professor of criminal law and legal theory at the University of Warwick, discusses the complexity of proportionality in the context of the current war between Israel and Hamas.
It is the first post in a brief series, “Philosophers On the Israel-Hamas Conflict.”
(Discussion welcome; see the comments policy.)
Proportionality and Responsibility in the Israel-Hamas Conflict
by Victor Tadros
Whatever the wrongs suffered by the Palestinians, the appalling terrorist attacks on civilians in Israel that began on October 7th cannot be justified as an act of resistance. They were intentionally inflicted on civilians; they had no prospect of improving things for ordinary Palestinians; and they were inflicted to further an abhorrent religious and political ideology by a political organization that only worsen the lives of those it claims to represent.
Those Hamas operatives who perpetrated these horrific acts are liable to punitive harm. That includes those who intentionally assisted or facilitated the attacks. Furthermore, those who currently threaten such attacks are liable to defensive harm. To this extent, those who assert Israel’s right to defend itself are right—Israel has a right to defend innocent civilians from ongoing terrorist attacks. But it has that right only insofar as, and to the extent that, it successfully defends civilians in a way that satisfies moral constraints that apply to defensive force.
Israel’s predictably violent response to terrorist violence is unjustified due to the intentions of the perpetrators (does anyone doubt it?) to inflict suffering on innocent Palestinians—to terrorize them, as collective punishment, or in vengeance. Its response is also already disproportionate. Even now, far more deaths have been inflicted in response than were lost in the original attacks. Of course, this alone does not show the response to be disproportionate. Harms that have already been inflicted can no longer be undone by a military response. They cannot contribute to the proportionality assessment. Violence can be justified only if it prevents future harm. But it is hard to believe that Israeli violence on the scale we are witnessing is justified by the need to prevent future violence by Hamas. Any future attacks that this might prevent, if indeed it prevents them, are unlikely to have a death toll that is sufficiently high to justify the deaths of thousands of innocent Palestinians, the destruction of substantial parts of the infrastructure in Gaza, and the displacement of over one million people, which will certainly result in many more deaths.
Proportionality is a complex matter, and I can’t set out the right view of what it involves here. But one rough and ready test that typically holds true is that the use of military force is proportionate only if the harms inflicted on non-liable people—innocent Palestinian civilians in this case—are significantly smaller than future harms prevented. The harms that are caused, and that weigh against the use of defensive force, include those that result from escalation. Some harms inflicted during the conflict will be the responsibility of those in conflict with Israel, including Hamas; but some harms inflicted by Hamas that result from the Israeli response will also be the responsibility of the Israeli government. The same thing is true for Hamas—the predictably violent response of the Israeli government is not only the responsibility of the Israeli government, but also the responsibility of Hamas.
The common political strategy of denying one’s own responsibility for violence by asserting the responsibility of one’s opponents rests on an illusion. When deciding whether and how to inflict violence, we must not only consider the immediate effect of our own actions, but the violent response that others will make to our violent acts. Harms that will be inflicted on civilians that results from their being used as human shields also count against the use of violence; the responsibility of Hamas for these deaths does little or nothing to reduce Israel’s responsibility for them (see my “Permissibility in a World of Wrongdoing” in Philosophy and Public Affairs for discussion).
Whilst Israel’s response is clearly disproportionate, what makes the response disproportionate and how disproportionate will it be? To answer these more challenging questions, we need to make comparisons. But what should compare? As Patrick Tomlin shows in the book he is currently writing, Violence in Proportion, we shouldn’t compare doing nothing, initially tempting though that may be. For doing nothing may not be a permissible alternative, and there may be other ways of preventing or ameliorating future harms that are relevant to determining whether and how disproportionate a violent response is. Nor should we compare the status quo—in this case, Israel’s conduct prior to the Hamas attacks. Its treatment of the Palestinians was unjustified, and cannot provide a baseline to compare the effects of intervention. And we should not compare what Israel would do were it not to attack—that would also almost certainly have been unjustified given the absurd racism of its current government. To determine whether the attacks are proportionate, or how disproportionate they are, we must compare the effects of the attack with some moralized alternative—compliance with duties of justice.
My responding to an attack in a way that harms innocent people, for example, is not proportionate if I could avert future threats in some other way, especially if that other way is not very costly to me, or if I am independently required to do the things that would avert those threats. That is so even if the threats posed are unjustified, and even if the harm will only be inflicted on those who are responsible for unjust threats. For example, suppose that I have stolen some territory from you, and am required to return it. If I don’t return it, you’ll intentionally kill me and 10 of my innocent friends. Your response, of course, is seriously wrong. Suppose I can keep the territory and prevent you from killing me and 10 of my innocent friends by killing you, but 5 of your innocent friends will be killed as a side effect. Doing that, let us suppose, would be proportionate were I unable to return the territory. But suppose that I can return the territory. If I do this, you will still be enraged and you will kill one of my friends. Now it is disproportionate for me to kill you and 5 of your friends. I’m required to return the territory. Preventing the death of my friend cannot justify my killing 5 of yours. The fact that I won’t return the territory, or wouldn’t do so, does nothing to make my response proportionate, even if returning the territory is costly to me.
In the Israeli case, the right comparison to determine whether the attacks on the Palestinians in Gaza is proportionate, then, is between that conduct and a baseline which fulfils its duties of justice—responding appropriately to the systematic violation of the rights of Palestinians by the Israeli government and its supporters that have been perpetrated for over 75 years. When we compare what Israel would achieve were it to do this, on any reasonable conception of what doing this involves, and what it will achieve by its violent response to the violence it has suffered, it is even more difficult to believe that the current military response is justified. When states are victims of unjustified violence in response to their oppressive acts, their first inclination should be to address their own violent history and respond to that. Only in the light of that can they assess what it is proportionate to do to address the violence of others.
[image: edit of M.C. Escher’s “Drawing Hands” by J. Weinberg]