Double Effect and Human Rights in War

When, in June, the International Criminal Court’s prosecutor sought arrest warrants for Israel’s prime minister and defence minister over their conduct in Gaza, the Conservative government objected that the ICC lacks jurisdiction over Israeli citizens. Last week, the new Labour incumbents of No. 10 abandoned that challenge. 

But lack of jurisdiction is only the weakest ground for objection. Had the reasoning of the panel of legal experts invited to justify the prosecutor’s action been applied to the Allies’ invasion of Normandy in June 1944—the eightieth anniversary of which we have just celebrated—it would have approved the arrests of Churchill and Eisenhower. 

According to the experts’ report, there are “reasonable grounds” to believe that the Israeli ministers have committed war crimes in Gaza. This is because they have “intentionally” used the starvation of civilians as a method of warfare against Hamas, by depriving civilians of “objects indispensable for their survival” and so of their “fundamental rights.” They have done this by “deliberately” impeding the delivery of humanitarian relief and by “attacks directed against” facilities that produce food and clean water, civilians attempting to obtain relief supplies, and humanitarian workers and convoys. “Either ... the suspects meant these deaths to happen,” write the lawyers, “or ... they were aware that deaths would occur in the ordinary course of events as a result of their methods of warfare.” As for the crime of extermination, “the number of deaths resulting from starvation is sufficient on its own to support the charge.”

Objections to the panel’s report could be raised on factual grounds, since responsibility for the failure of aid to reach its intended recipients and the question of whether or not Gaza has in fact been on the brink of starvation at all both remain hotly contested. But I shall let these pass, since my own objection is ethical rather than factual. 

Legal reasoning is only as good as its moral concepts. One flawed moral concept here is that of intention. The lawyers think that a deliberate act that has a foreseeable effect must intend that effect. So, when the Israelis deliberately conduct a military operation having the foreseeable effect of starving or killing Gazan civilians, they must have “meant” it. To be aware is to mean; to mean is to intend.  

This is wrong.