Monday, January 22, 2024

When Does Self-Defense Go Too Far?

This article is an attempt to answer Piers Morgan's great 'Moral Quandary' on the war in Gaza. It is also a follow-up to my previous article about genocide: Even if genocide is not being committed by Israel, is Israel going too far?

For weeks now I have watched Piers Morgan interview an extreme variety of guests to chime in on the war in Gaza, and he has repeatedly asked the same good question without receiving a good response even by pro-Israel spokespeople. He is obviously bothered by this question and rightfully so. I will quote his own precise wording for this question from an interview he conducted with Jordan Peterson:

"I asked Ben Shapiro what is the proportionate response to what happened on October 7th and he said there isn't one that there is no proportionate response and there shouldn't be... I also believe that Israel has a fundamental right not just to defend itself after what happened but has a duty to protect its people and it has to take that duty obviously very seriously. But if your mission statement, as they've made clear, is to eliminate Hamas completely, and Hamas live in Gaza surrounded by civilians, among civilians, you can only do that... you can only get rid of Hamas with massive civilian casualties. And that's where I have this moral quandary about how much is too much. Does Israel get a license to do whatever it wants to eliminate Hamas or should there be a limit, and if so, what is that limit?"

I don't agree with Ben Shapiro's response to Morgan. Although Shapiro qualified his statement about a necessary disproportionate response by saying that this did not include targeting civilians, he did not resolve Morgan's quandary. Even if Israel responds with an appropriate 'disproportionate response' towards Hamas while being careful about targeting civilians, and even if Hamas is the one putting civilians in harms way, the problem, as Morgan explained, is that possibly too many innocent civilians are paying the price of this justifiable military action. When does it become too much despite the military necessity and the 'human shield' nature of this war? To use an extreme example: would the goal of wiping out 30,000 verified Hamas members justify killing 2 million innocent civilians as casualties of war? Obviously not. So where is the limit? And once we define the limit, we can evaluate whether Israel has gone too far.

Also, by using the word 'proportionate', he added a legal aspect to this compound question by invoking a word from international law. The law, while not declaring all civilian deaths as illegal, still requires adequate justification (AKA proportionality) for any civilian casualties. I.e. proportionality does not mean the numbers on either side have to be comparable, as many wrongfully assume, but that the military goal should justify the number of civilian casualties. This is obviously a very ambiguous and complex requirement, which adds a legal quandary to this question, as presented by Morgan. 

To demonstrate how much this term is complex and ambiguous, here is an 86 page document covering only the legal issue of proportionality, containing debates and discussions by experts in Canada in 2016. Note that there are no answers, solutions or formulas provided throughout the document, and the scores of questions raised only manage to demonstrate how impossible it is to evaluate 'proportionality' with any type of precision. The document does give us some guidelines, albeit muddled ones.


I will try to respond to this question in a more in-depth and satisfying way by covering both the overlapping legal and moral aspects of the question.

I dived into some of the legal aspects in my previous article about genocide. To reiterate, expand and clarify: Legally, civilian casualties during war are allowed by law as long as the military goal justifies the deaths. To use an example I've seen mentioned several times: If an elusive and important military commander is driving in a vehicle with five civilians, and there is no other easy way to kill this commander without great sacrifice, depending on the kind of war this is, it would be legal to bomb the vehicle even though it would result in five civilian casualties and only one military kill.

In Gaza, not only have Hamas declared that they will repeat October 7 until Israel is destroyed, they are persistently firing missiles into Israel, targeting civilians, and have never stopped. Military goals do not get any clearer than this: The goal is to protect your own civilians from current military attacks as well as future ones. So the question becomes: how many civilian deaths are considered proportional by law in order to achieve this goal?

As I explained above, even international experts don't and can't provide a solid answer to this question because the law is very poorly and ambiguously defined. But we do have some guidelines and we can evaluate by ourselves what would make sense. For instance, I could safely claim that in order to protect your own civilians that are currently under attack (and to protect them from even worse future massacres the enemy has vowed to perform), and as long as you do everything within practical reach to reduce civilian casualties, multiple civilian casualties on the enemy's side would be very proportional towards the goal of protecting multiple civilians on your own side. And this applies to each and every attack launched or attempted by the enemy. This is the case even if the number of casualties is higher on the enemy's side. After all, your duty is first and foremost to your own civilians. The question is, how much higher?

Given the numbers I posted in my genocide post about the IDF averaging, at worst, 0.5 casualties for every bomb in Gaza, and given that Gaza has already fired 10,000 rockets into Israel (more if we include pre-October 7 attacks), and that Israel needs to stop these missiles in order to save lives, I would say that Israel is not only absurdly well within the range of a proportional response, but is also being too careful at the expense of its own soldiers and at the risk of extending the war. By warning Gaza about impending missiles, obviously their military successes will be reduced and the war will last longer.

Let us use a specific but realistic example: A single missile fired from Gaza could kill multiple civilians in Israel. Whether it actually does so or not and its low rate of success is not as important as the potential loss of life. When you shoot an armed and dangerous criminal, you don't tell yourself 'oh, he will probably miss so I will allow him to shoot this time'. Taking out a missile launcher planted inside a civilian building which could fire hundreds of missiles, could definitely save many dozens of lives. Therefore even if the building has a hundred Gazan civilians inside it, it is a valid and proportional military target. Except that Israel usually warns the civilians in that building before it bombs the building. Hence the average of 0.5 deaths per Israeli bomb. By warning the Gazans, Israel may still take out the missile launcher, but will lose the opportunity to kill the Hamas combatants hiding in that building. As you can see, not only is this example proportionate, it is arguably disproportionate in the enemy's favor.

So the legal answer to Piers Morgan is as follows: So far, Israel is being so proportionate that it sometimes hurts its military goals and risks being disproportionate in the enemy's favor. If it were to fire indiscriminately, or cause many more deaths, then you may have a moral quandary. But, so far, given the numbers, Israel is well within the boundaries of proportionality, given the constant and current threat to civilian lives posed by Hamas. Just remember what I said above: That it is not about comparable numbers of casualties, but about military goals and the amount and quality of imminent as well as potential threats that need to be stopped.

But What About The Humanity?

I will now add a different approach that is less cold, and which addresses and prioritizes the moral and human aspects of the question:

Let's eliminate governments, wars and states from the equation and use a simplified and more relatable example: Imagine a psychotic murderer goes on a rampage in a park shooting civilians including children. The police respond and target him with their guns, except that he has grabbed a civilian hostage and is holding the hostage close to obstruct the line of fire. The problem is, while the criminal is holding the hostage as a shield, he is also about to shoot the policemen, or other civilians. Can a policeman shoot through the hostage to take the criminal down in order to save his own life? How about shooting dangerously close to the hostage in order to save other civilians?

This is called an imminent threat and, to the best of my knowledge, a policeman is normally allowed to shoot in this case, even at risk of killing the hostage. This would make sense since not only is this an act of self-defense, but refusing to shoot can place other policemen and civilians at risk, and it is therefore arguably his duty. Giving his life for the hostage is not even an option since it's not merely his life at risk. Plus, the hostage may not survive in any case. Obviously he should try to aim at the criminal behind the hostage as precisely as he can, or at least minimize damage to the hostage, but he has no choice but to shoot in this scenario even if the hostage dies as a result. The final decision is a possible risk to the hostage, but a definite save for other civilians.

(As a side-note, Judaism is actually much more strict in this case in terms of his ability to shoot, but is more permissive in circumstances of war. According to rabbis, there is a vast difference between individual cases of life and death where you are often not allowed to kill innocents in order to save others, versus war. This is because war is defined as a fight between nations, not individuals, and it is often impossible for one side to try to guess the intentions of each and every civilian during a war. And civilians, by default, are involved in their nation that has chosen to go to war. For example, they could leave, revolt or surrender if they don't want to become involved. To be clear, Judaism still demands mercy and judicious, discriminate killing, it just doesn't ludicrously define all civilians as innocent and protected just because they didn't pick up a gun. Compare this to the massive confusion of the law of proportionality described previously where you risk people's lives trying to separate friend from foe, which is often an impossible task. But, in this article, I am restricting myself to common law and popular morality.)

At this point, Piers Morgan would probably ask, what if the park criminal has taken ten or more civilians hostage? How far do we take this scenario? Is there no limit to self-defense?

One answer is that, in this scenario, many more than ten civilians could get killed if the ten hostages are not put at risk and possibly killed as casualties. Because if the policemen put down their guns, the murderer would continue on his rampage. In fact, in our scenario, the murderer is still actively continuing on his rampage even while under fire (by firing rockets) and has declared his intention to continue killing every civilian he meets.

How far can this go? We could ask what is a proportionate response to an active threat to kill 7 million civilians by an army that has proven able and more than willing to complete the task? And in case you think this is unrealistic and just bluster on their part, since they face a superior army, just imagine what would happen if Iran supplied Gaza with weapons of mass destruction. Or if multiple Arab countries overwhelmed Israel all at once, leaving Hamas free to perform continuous massacres. Plus, the next massacre could involve 100,000 instead of 1,400. Their attacks have been growing in intensity for decades. It must be put to a stop at some point before it gets even worse.

But there is another moral argument to be made here, one that is overlooked by most people: I have misrepresented reality in all of my above examples by stating that the civilian casualties and hostages are innocent bystanders. What if they aren't?

In the above scenario in the park, imagine if there is another park pedestrian on the scene who hates the police and other civilians of a specific race so strongly that he actually cheers the murderer onward and encourages his attacks, and even helps him by warning him about policemen sneaking up on him, thus putting lives in danger. Then, in a plot twist, the criminal grabs this misanthropic, racist individual and uses him as his hostage. Would you feel bad if the policeman misses and shoots this version of the hostage unintentionally? Or would you feel that this is karma?

To be clear: Intentionally targeting this despicable hostage is still not legal according to international law since he is not a combatant. (This absurd law seriously needs to be revised). But, morally speaking, is his accidental death still a tragedy? And how far should policemen go to save his life? Should a policeman risk his own life to save this 'hostage'? Should he delay his shot and risk other civilians by doing so? And so on. The answers to such questions change radically given the background and behavior of the hostage.

What I am claiming here is that not all civilian deaths are moral quandaries. Sure, small children are always tragedies. But not all civilians in Gaza are innocent and not all of them deserve extra protection, morally speaking.

First of all remember that Hamas purposely do not wear uniforms, and many of the so-called civilians are anything but non-combatants.

But imagine if an actual non-combatant civilian does any or all of the following: He cheers whenever Hamas kills an Israeli civilian or launches a missile, votes for Hamas, supports terrorism in polls, expresses his opinion publicly that Israel must be destroyed, violently attacks or humiliates hostages brought back by Hamas, allows Hamas to use his home for storing weapons, helps Hamas digs tunnels and build weapons, broadcasts Hamas propaganda and lies on the internet, and so on. Gazan 'civilians' have been proven to do all of these things and more, often on video. International law says that these people are not military targets since they are non-combatants. And yet they are doing everything they can to help kill Israeli civilians without actually picking up a gun. And this means that they are protected and that a soldier should possibly risk his life to avoid killing them. The law doesn't get more absurd than this.

Take this gentleman as a single example. This link presents a video from an Israeli news channel posted a couple of weeks after October 7th. At the 2:35 mark, it shows a Palestinian civilian cheering Hamas as they fire rockets at Israeli civilians, and using his internet channel to spread Hamas propaganda. Two weeks later, this same gentleman is shown crying in a hospital at the horrible consequences that have been unleashed on Gaza. Is his suffering a tragedy or karma? Should soldiers bend over backwards and risk their lives to try and protect this civilian from the consequences of the war he encouraged? Note that this is a mild example. There have been videos of civilians even attacking hostages.

Finally, I will repeat what I said in a previous article about the often-used quotes from Israeli politicians and media personalities when they talk about Gazan civilians being responsible and involved: They are most definitely involved, as I argued above. That does not make them legal military targets, and it doesn't mean these politicians intend to target them directly, but it also doesn't mean we have to risk our lives or make super-human efforts to save them from the war that they themselves helped launch. There is no moral quandary when it comes to such civilians.

Closing Thoughts

Granted, this last argument is not a comprehensive one and only covers a subsection of civilians, excluding young children who are obviously innocent. But given that 90% of civilian Palestinians support terrorism and 75% want to destroy Israel consistently in many polls, this does cover an overwhelming majority, including women and teenage 'children' that are capable of making moral decisions. However, this article is a compound answer to a compound question, and one must combine everything I said here to get a satisfying response, including its legal and practical aspects.

One final note regarding the poor, suffering, innocent children in Gaza: I am reminded of the interview I saw with a Zaka worker. The job of these workers is to collect body parts and blood of the deceased and ensure they get a dignified burial. Some of them have seen atrocities and horrible accidents for decades. But October 7 broke them completely. In this interview, the despicable Channel 4 interviewer tries to raise the same old equivalent-morality argument with a man who is emotionally broken and asks him about the suffering children in Gaza. His response:

"My heart is very with them. I wish I could save them. I wish I can have those families bring them here to my house; the problem is Hamas won't let them."

When asked: "Isn't the danger that the cycle of hatred of violence of revenge is just perpetuated?" He answers: "That's war. And who started the war?"

No comments:

Post a Comment