Determining Moral Wrongdoing in Gaza
Hundreds of millions of people world-wide, so it appears, firmly believe that the following proposition concerning Israel’s war in Gaza is true:
Even if it is morally permissible for Israel to defend itself against the threat of future attacks like the one of 7 October and therefore also is morally permissible for Israel to be waging a war in Gaza, the way in which Israel is waging the war is morally wrongful, given the extensive civilian harm it is causing.
I do not share this moral certainty. Consider the following example:
Early one Sunday morning, Cape Town is roused from its slumber by several hours of sustained cannon and missile fire from three warships belonging to a foreign power. Many Capetonians are killed or injured. Many buildings are destroyed or damaged. The foreign power states that the attack will be repeated at irregular intervals. The South African National Defence Force (SANDF) is able to destroy the warships by, and only by, bombing them.
Knowing this, the foreign power declares that, for every warship that the SANDF destroys, it will execute a thousand of its own citizens. Believing that this is an idle threat, the SANDF destroys one of the warships. The foreign power carries out its threat. Undeterred, the SANDF destroys another of the warships. The foreign power once again does what it said it would.
It clearly was morally permissible for the SANDF to destroy the second warship, notwithstanding the extensive civilian harm this was likely to and did cause. And it would be no different if the magnitude of the probable and actual civilian harm were far greater because, say, the foreign power had declared that it would execute five thousand of its own citizens for every warship the SANDF destroyed and had indeed done so after the first warship was bombed by the SANDF.
This does not mean that no moral wrong was committed against the civilians executed after the SANDF destroyed the second warship. But the perpetrator of that wrong was not the SANDF. It was the foreign power. True, the foreign power would not have committed that wrong, had the SANDF not destroyed the second warship. And true, it was known, or foreseeable, by the SANDF that the foreign power would do so. But the mere fact that one knowingly or foreseeably causes another to commit a wrong does not make one a co-perpetrator of the wrong.
This creates a puzzle. There is much about the war in Gaza that presently is not, and cannot be, known to those observing it from a distance, through the frequently distorting lenses of their preferred sources. The possibility that Israel’s conduct in Gaza is in all morally relevant respects on all fours with the SANDF’s conduct in the example above cannot, therefore, be excluded by such observers.
That being so, those observing the war in Gaza from a distance also cannot exclude the possibility that Israel’s conduct in Gaza is morally permissible rather than wrongful, notwithstanding the extensive civilian harm it is causing. Nor can they exclude the possibility that, in so far as wrongs are being committed against civilians in Gaza, the perpetrator of those wrongs is not Israel, but Hamas (even if Israel is knowingly or foreseeably causing Hamas to commit those wrongs).
Given that those observing the war in Gaza from afar cannot exclude these possibilities, it is baffling that so many of them have come to hold the view that, even if Israel is morally permitted to act in self-defence against Hamas by waging a war against it in Gaza, the manner in which Israel is waging that war is morally wrongful, because of the extensive civilian harm it is causing.
Those who hold this view may well object that it is not possible that Israel’s conduct in Gaza is in all morally relevant respects similar to that of the SANDF in my example. Why not? Because, they may say, there is only one reason that this could be possible, namely that it could be the case that Hamas is using civilians as human shields, by embedding its military operations in and under hospitals, schools, kindergartens, mosques, residential buildings, and other civilian structures.
However, so it may be said, even if it were the case (as is alleged by Israel but denied by Hamas) that Hamas is using civilians as human shields in these manifold ways, that would not be enough to establish that Israel’s conduct in Gaza is in all morally relevant respects like that of the SANDF in my example.
Why is that? Because, so it may be argued, even if it were the case that Hamas is using civilians as human shields in Gaza, Israel’s causal relationship with those civilians in Gaza who were being harmed because they were being used as human shields by Hamas would be quite unlike the SANDF’s causal relationship with the citizens who died because they were executed by the foreign power in my example.
The deaths of the executed citizens in my example were caused by both the SANDF and the foreign power. The foreign power caused those citizens to die by killing them. The SANDF, by contrast, caused them to die, not by killing them, but rather by causing the foreign power to kill them.
Were it the case that Hamas is using civilians as human shields in Gaza, the deaths of the civilians who were being so used would similarly be caused by both Israel and Hamas. But it would be Israel that is causing those civilians to die by killing them. Hamas, by contrast, would be causing those civilians to die, not by killing them, but rather by causing Israel to kill them.
It is undeniable that there is this difference between the way in which, in my example, the SANDF caused the deaths of the thousand citizens executed after the destruction of the second warship and the way in which, were Hamas using civilians as human shields in Gaza, Israel would be causing the deaths of those civilians. But that is not enough to exclude the possibility that Israel’s conduct in Gaza is, in all morally relevant respects, on all fours with the SANDF’s conduct in my example.
Imagine that the facts of the example differed in the following way:
The SANDF’s destruction of the second warship caused the death of a thousand of the foreign power’s citizens, not because the foreign power subsequently executed them, but rather because the foreign power had imprisoned the thousand citizens in the warship’s hold so that whatever destroyed it would simultaneously destroy them.
The deaths of the thousand citizens in this variation were caused by both the SANDF and the foreign power. The SANDF caused the deaths of the citizens by killing them. The foreign power, by contrast, did not cause the deaths by killing the citizens. It did so, instead, by causing the SANDF to kill the citizens. The SANDF’s causal relationship with the thousand citizens in the variation is therefore identical with what Israel’s causal relationship with the civilians being harmed in Gaza would be if those civilians are being harmed because Hamas is using them as human shields.
This matters to the determination of moral wrongdoing in Gaza. As in the original example, so in the variation, the SANDF committed no wrong by destroying the second warship, notwithstanding the extensive civilian harm this was likely to and did cause. As in the original example, so in the variation, the citizens whose deaths were caused by the destruction of the second warship were wronged. But they were wronged by the foreign power, not the SANDF, even though the foreign power would not have wronged them, had the SANDF not destroyed the second warship, and even though it was known or foreseeable by the SANDF that the foreign power would do so.
The puzzle therefore remains. As shown, Israel’s causal relationship with the civilians being harmed in Gaza, if those civilians are being harmed because Hamas is using them as human shields, would be identical with the SANDF’s causal relationship with the citizens whose deaths were caused by the destruction of the second warship in the variation. As was also shown, in the variation, the citizens whose deaths were caused by the destruction of the second warship were wronged, not by the SANDF, but by the foreign power. It follows that, if the civilians who are being harmed in Gaza are being harmed because Hamas is using them as human shields, Israel likewise would not be wronging those civilians. It would, instead, be Hamas that is wronging them.
Why, then, do so many people believe that, even if it is permissible for Israel to defend itself by waging a war against Hamas in Gaza, the way in which Israel is waging the war is wrongful, given the extent of the civilian harm it is causing? Perhaps they do not share my caution about what we, far removed from the war in Gaza, can and do know about it. Perhaps they are confident that we have enough reliable information about it to know – for sure – that, contrary to what has been claimed by Israel, Hamas is not using civilians as human shields in Gaza.
Such confidence would be misplaced. Israel, or (more accurately) the Israel Defence Forces (IDF), has made public many photographs and videos documenting Hamas’s use of tunnels under civilian structures, as well as its use of those civilian structures themselves, for military purposes. It is improbable that the IDF is trying to pull the wool over everyone’s eyes: because the tunnels in fact do not exist; because they do not really run under, and have shafts surfacing in, hospitals, schools, mosques, kindergartens, and private dwellings; or because the IDF planted weapons, rather than found them, in various civilian locations.
But even if (improbably) the IDF were playing a massive confidence-trick on us, there would at present be no way for us to ascertain that it is. We do not have enough trustworthy information available to us to dismiss the IDF’s claims, backed up as they are by photographs and videos, as false. Nor, therefore, are we able to exclude the possibility that the IDF’s conduct in Gaza is, in all morally relevant respects, on all fours with the SANDF’s conduct in my example and the variation to it.
Perhaps there is a different reason why so many people are convinced that, even if it is acceptable for Israel to defend itself by conducting a war against Hamas in Gaza, the way in which it is conducting the war is wrongful, given the extensive civilian harm it is causing. Perhaps this conviction is not grounded upon the (improbable) belief that Hamas is not using civilians as human shields. Perhaps it is grounded, instead, upon the (less improbable) belief that, notwithstanding Hamas’s use of civilians as human shields, the IDF is causing far more civilian harm than is necessary for it to achieve its aim of destroying Hamas.
Again, however, it is unclear how those observing the war in Gaza from a distance could possibly know this. Consider a second variation to my example, constructed by adding the following facts to the first variation:
The SANDF did not need to bomb the second warship to prevent it from carrying out further attacks on Cape Town. It could, instead, have captured it. The capture was likely to have involved the death of three hundred members of the SANDF. But it was also likely to have caused the death of no more than two hundred of the thousand citizens imprisoned in the second warship’s hold.
In this new scenario, the SANDF, by bombing the second warship as it did, caused far more harm to the thousand citizens imprisoned in the warship’s hold than was necessary for it to achieve its aim of rendering the warship incapable of carrying out further attacks on Cape Town. It could have achieved that aim by capturing the warship instead. And that would have spared the lives of eight hundred of the thousand imprisoned citizens.
Does this mean that the SANDF, in this new scenario, committed a wrong by bombing rather than capturing the warship? It does not. The SANDF would have captured the ship only at the probable cost of three hundred of its members’ lives. The SANDF could not possibly have been obliged to sacrifice so many of its personnel to spare the lives of eight hundred of the citizens which the foreign power had imprisoned in the second warship’s hold. Correspondingly, the SANDF could not possibly have committed a wrong by not sparing them.
This can be generalised. For action taken by the military of (people or nation) A with the aim of defending A against a threatened attack by the military of (people or nation) B to have been wrongful, it is not sufficient that it caused more harm to non-combatant members of B than was necessary to avert the threatened attack. It might, however, be sufficient in a qualified form.
Exactly how it would have to be qualified is not obvious. One possibility would be for it to require that the action taken by the military of A caused more harm to non-combatant members of B than was necessary, not merely to avert the threatened attack, but to avert the threatened attack without unreasonable cost to the military of A. But there are other possibilities too.
Let it be assumed, for a moment, that no conceptual mistake is being made by those who are convinced that, even if it is permissible for Israel to defend itself by waging a war against Hamas in Gaza, the way in which it is waging the war is wrongful, given the extensive civilian harm it is causing. It would follow, from the foregoing, that this conviction could not be grounded upon the belief that the IDF is causing far more civilian harm in Gaza than is necessary for it to achieve its aim of destroying Hamas. It might, however, be grounded upon the belief that the IDF is causing far more civilian harm in Gaza than is necessary for it to achieve its aim of destroying Hamas without unreasonable cost to the members of the IDF.
How could those who are observing the war in Gaza from afar be justified in holding this belief? Much has been made of the civilian casualties caused by the IDF’s bombing of buildings and tunnels occupied by Hamas combatants. The IDF could have sent troops into those buildings and tunnels instead. But could it have done so without unreasonable cost to those troops?
That depends on many factors. How many Hamas combatants were in those buildings and tunnels? How well armed were they? Where were they located? Were they forewarned? Were the buildings and tunnels booby-trapped? People sitting in armchairs thousands of miles away could not possibly know the answers to these questions. Nor, therefore, could they possibly know that, by its bombing of those buildings and tunnels, the IDF caused more civilian harm than was necessary for it to achieve its aim of destroying Hamas without unreasonable cost to the IDF’s members.
Those convinced that, even if it is not wrongful for Israel to defend itself by waging a war against Hamas in Gaza, it is wrongful for it to wage the war in the way it is, given the extensive civilian harm it is causing, might offer the following response to the arguments above:
Imagine that the number of citizens that the foreign power would execute in the original example, if the SANDF destroyed the second warship, were not a thousand, not five thousand, but many, many more than that. At some point that number would be so large that it would not only be the foreign power that would be committing a wrong by killing those citizens, but also the SANDF which would be committing a wrong by causing the foreign power to do so.
What applies to the SANDF in the example applies also to the IDF in Gaza. It may be permissible for the IDF to kill some civilians that are being used as human shields by Hamas. But the number of civilians (who were or are being used as human shields by Hamas) that have been, and are being, killed by the IDF is so large that it puts the IDF’s conduct beyond what was and is permissible. True, to the extent that Hamas caused, and is causing, these civilians to die by its use of them as human shields, its conduct was and is wrongful. But that does not mean that the IDF’s killing of these civilians was and is not wrongful too.
As distant observers, we do not know how many civilians the IDF has killed in Gaza. The Hamas-controlled Ministry of Health claims that the IDF has killed 28 000 people. But this figure does not distinguish between combatants and civilians. According to the IDF, it has killed more than 10 000 combatants. It is, moreover, possible that many civilians have been killed by Hamas’s own ‘friendly fire’ and misfired rockets.
The number of civilians killed by the IDF may therefore be in the order of 15 000. But we cannot be sure. While Hamas has an interest in inflating the number of civilians killed by the IDF, the IDF has an interest in inflating the number of combatants killed by it. (That said, we do have more reason to trust what is said by a state or government institution operating within a democracy (like Israel) than by one operating within an oligarchy (like Gaza).)
Let it be assumed, for a moment, that the IDF has killed 15 000 civilians in Gaza. That is far fewer than the 27 494 people who were murdered in South Africa during the year March 2022 to February 2023. Even so, it is a large number. And it is a tragedy. But is it so large a number, and so great a tragedy, that distant observers of the IDF’s war in Gaza are, as a result, justified in concluding that the way in which the IDF is waging that war is wrongful? I do not believe so.
The mere fact that the number of civilians (who were being used as human shields by Hamas) that were killed by the IDF reached a certain figure (15 000, or 20 000, or 25 000) could not, on its own, turn what would otherwise have been permissible conduct on the IDF’s part into wrongful conduct. If the number of civilians killed by the IDF has a bearing on the permissibility or wrongfulness of the IDF’s conduct, it could only be that number in relation to the harm that the IDF was preventing by its conduct.
Consider again the original example. As explained, it was permissible for the SANDF to bomb the second warship, notwithstanding the fact that doing so would cause the foreign power to execute a thousand of its own citizens. Would it have been wrongful for the SANDF to bomb the warship if the number of citizens that would as a result be executed were 15 000, or 20 000, or 25 000? Possibly. But, if so, it would depend on the harm that the SANDF was preventing by bombing the warship.
Imagine that, unless it were destroyed, the second warship would, by its cannon and missile fire over the next few months, kill five thousand Capetonians, cause hundreds of thousands of Capetonians to be evacuated, cause billions of rands of damage to Cape Town’s infrastructure, and cause those remaining in Cape Town to suffer a significant reduction in their sense of personal security. The SANDF would not, in that event, be committing a wrong, by its destruction of the second warship, against the many citizens of the foreign power who would consequently be executed by the foreign power. (If anything, the SANDF would be committing a wrong against the residents of Cape Town if it failed to destroy the second warship.)
What is good for the goose, is good for the gander. Let it be supposed that the fact that the IDF has killed 15 000, or 20 000, or 25 000 civilians (who were being used as human shields by Hamas) in Gaza is capable of justifying the conclusion that the way in which the IDF is conducting its war against Hamas in Gaza is wrongful. Whether it actually did justify this conclusion would depend on the harm that the IDF was preventing by so conducting the war.
It is possible that the harm that the IDF is preventing is of such a magnitude that the way in which it is conducting the war in Gaza is morally permissible, notwithstanding the fact that it has killed 15 000, or 20 000, or 25 000 civilians (who were being used as human shields by Hamas). Those of us observing the war in Gaza from a distance do not have enough reliable information available to us to rule out this possibility. Nor, therefore, can we rule out the possibility that the way in which the IDF is conducting the war against Hamas in Gaza is not morally wrongful.
Anton Fagan is WP Schreiner Professor of Law: University of Cape Town
