TCS Daily


Vulgar Fractions and the Double-Effect

By Michael Rosen - July 19, 2006 12:00 AM

In battling Hezbollah and Hamas, are Israel's tactics unjust?

Stephen Bainbridge, responding to arguments presented by Ed Morrissey, J. Peter Pham, and Michael Krauss, examines the concept of proportionality within the Just War theory as it applies to the current hostilities between Israel and Hezbollah. He concludes that Israel "appears to be on the brink" of waging war on civilians.

According to what he terms "the need for proportionality," in applying the Catholic principles embodied in the Just War philosophy, "the use of arms must not produce evils and disorders graver than the evil to be eliminated." In other words, the ratio of one state's hostile actions to its enemy's bellicose acts and should be approximately one. If the numerator and the denominator are out of whack, the principle of proportionality has not been satisfied, and thus, Professor Bainbridge seems to say, at least one element of the Just War criteria has not been fulfilled.

Professor Bainbridge makes the case that Israel's actions in response to Hezbollah's attacks (he doesn't discuss Israel's parallel war against the Hamas-led Palestinian government in Gaza) may not satisfy this principle. Although he maintains that Israel's conduct has not been as sweeping and destructive as the Anglo-American air raids during World War II, he asserts that Israel's actions may be unjust:

"In fact, however, Israel clearly is targeting not just Hezbollah, but also Lebanon's official military, and, most important for our purposes, Lebanon's basic civilian infrastructure. The Beirut airport has been closed by Israeli attacks. Bridges, ports, roads, and power stations are all being targeted. As this column was being written, more than 100 civilian fatalities -- including some citizens of neutral countries, most notably Canada -- already had been reported. More surely will have occurred before this column is published.

In short, even a just war must be waged justly. Israel is entitled to defend itself, but is not entitled to do so disproportionately or to wage war on civilians. Yet, that is precisely what Israel appears to be on the brink of doing."

Yet while the good professor ably surveys the proportionality principle and recent history of bombing campaigns, he misapplies the lessons taught by the Just War tradition. Put differently, he sets up the equation correctly but he inflates the numerator and trims the denominator. Along the way, he neglects the important Just War (and Catholic doctrinal) concept of "double-effect."

Last things first. We are, respectively, an Orthodox Jew and an observant Catholic. We place great stock in the traditional theory of the just war. We also believe that the so-called principle of double effect, a related concept, is useful here. This principle gives guidance to one engaging in an act that has two foreseeable effects, one good and one bad. According to the principle, such acts may be licitly engaged in if four conditions are met: The act must not be wrong in itself; the agent's intention must be right; the bad effect must not be a means to the good effect; and the gravity of the reason for engaging in the act must be commensurate with the foreseen (but unintended) bad effect.[1]

With that as background, fast forward to July 2006. The evils promised and executed by Hamas and Hezbollah are much more far-reaching and deadly than Bainbridge allows. While the proximate causes of Israel's attacks in Gaza and Lebanon, respectively, were the kidnappings of Gilad Shalit, Eldad Regev, and Ehud Goldwasser (although the prof appears to question whether even these were sufficiently grave acts of war to merit a forceful response), the ultimate cause of this conflict has been the revanchism of militant Islam.

Hamas-linked militants have been lobbing Kassam rockets from Gaza into the nearby Israeli town of Sderot ever since Israel quit the Gaza Strip almost a year ago.

Hezbollah has rained hundreds of Katyusha missiles on Israel's northern towns and cities over the years, a barrage that it only renewed after Israel signaled it would take action to rescue its captive soldiers.

In fact, the group's mere stockpiling of over 10,000 rockets designed exclusively for attacks on major Israeli population centers (the Katyushas have little battlefield accuracy) is itself a belligerent act.

Far worse is Hezbollah's deliberate targeting of Israel's cities, including Haifa, its third-largest metropolis, and Safed, an ancient holy city. Its leader, Sheikh Hassan Nasrallah, gleefully boasted that the group refrained from attacking strategic installations and has announced his intention to hit even more concentrated civilian areas like the Tel Aviv region.

But the "evils" perpetrated by Hezbollah extend to its treatment of its own civilian population. Like most terrorist organizations, the "Party of God" intentionally blends in with everyday Lebanese, daring its pursuers to attack the innocent. Hezbollah has also insinuated itself into an otherwise democratic Lebanese government while explicitly maintaining its allegiance to Syria.

And we also mustn't discount the misdeeds carried out by Hezbollah's principal sponsors: Iran and, to a lesser extent, Syria. Iran in particular has threatened to sow widespread destruction in Israel, which has every reason to take the Islamic Republic's nuclear program seriously. No serious observer doubts that Hezbollah's recent "adventurism" -- as critical Egyptian and Saudi officials have called it -- is being underwritten by Tehran's mullahs; the very missiles being sent into Israel were manufactured in Iran.

In short, the denominator -- the evils (both potential and actual) carried out by Israel's enemies -- is far larger than Prof. Bainbridge acknowledges.

Nor should the numerator be unduly overstated.

For one thing, contrary to the Prof's depiction, Israel is not "targeting...Lebanon's basic civilian infrastructure." What Israel is targeting is nothing more and nothing less than Hezbollah's strategic military assets. These include the various airfields the group employs to fly in materiel from Iran, the highways and bridges it uses to transport personnel and weaponry from Syria, and the sea lanes it exploits to receive arms from other patrons. The Israeli Air Force (IAF) didn't exactly lay waste to the runway at Beirut International in order to deprive tourists of duty-free unfiltered Parliaments.

Instead, the IAF's strikes have significantly degraded Hezbollah's fighting ability. Yet Israel needs more time, and possibly a limited ground invasion, to permanently cripple the organization. Once this is accomplished, Israel would like nothing better than for the Lebanese army to do exactly what U.N. Security Council Resolution 1559 calls on it to do -- namely, to deploy to the southern border and displace Hezbollah.

Israel's attack thus provides a serendipitous opportunity for the Lebanese to fully take control of their own affairs.

Furthermore, by vanquishing Hezbollah and/or Hamas, Israel will send a message to Iran and Syria that they may no longer interfere in the affairs of other sovereign nations. They will also be put on notice that any escalation of their already destabilizing activities will yield a firm and swift response from the Jewish State. It's an understatement to say that an Israeli victory will strike a major blow for the free world in the War on Terror.

In the short, medium, and long term, then, Israel's actions will inure to the great benefit of humanity.

This is not to say, of course, that the IAF's bombardment is without consequences. Tragically, these airstrikes have killed civilians. They have also disrupted the lives of at least as many everyday Lebanese as Israelis affected by Hezbollah's missiles. And the bombing has accidentally taken the lives of soldiers in the regular Lebanese army as well.

However, applying the principle of double effect, Israel's actions and intentions can be seen to be defensive and reactive and thus not wrong in themselves. Furthermore, the bad effects (civilian casualties and disruption of civilian life) are not the means to the good effect (an end to Hezbollah's attacks), and justification for Israel's actions is substantial indeed. And when the numerator and denominator are properly defined, the gravity of the justification is commensurate with the gravity of the bad effects.

Furthermore, the bad effects of Israel's actions -- while far from excusable -- are fundamentally distinct from the evils committed by Israel's enemies. Israel intends to attack strategic military targets while Hezbollah and Hamas intend to maim and kill Israeli civilians. While the effect of both sides' bombardments is to hurt noncombatants, in one case the effect is unintended and in the other it is intended. That only 100 Lebanese civilians have been killed, despite the tonnage dropped by IAF jets is a testament to Israel's restraint and accuracy, not its recklessness. The good of Israel's campaign far exceeds both the foreseen and the actual harm.

Thus, the numerator is far smaller than Bainbridge makes it out to be. When properly considered, Israel's actions in the face of two implacably hostile enemies on two fronts -- and in the context of a genocidal regional power on the brink of acquiring the means to carry out its exterminationist designs -- comply just fine with the principles of Just War and double-effect.

Michael M. Rosen, TCS Daily's intellectual property columnist, is an attorney in San Diego. Thomas J. Van Gilder, M.D., is a patent attorney and physician in Milwaukee.


[1] The Stanford Encyclopedia of Philosophy offers this relevant example of the application of the principle of double effect: "The terror bomber aims to bring about civilian deaths in order to weaken the resolve of the enemy: when his bombs kill civilians this is a consequence that he intends. The strategic bomber aims at military targets while foreseeing that bombing such targets will cause civilian deaths. When his bombs kill civilians this is a foreseen but unintended consequence of his actions. Even if it is equally certain that the two bombers will cause the same number of civilian deaths, terror bombing is impermissible while strategic bombing is permissible."

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15 Comments

Just War???
Why are we even having this discussion? The Israelis are faced with numerous TERRORIST groups, many of which are state-sponsored, who if given the opportunity would kill each and everyone of them! Israel and its people are fighting for their very survival. And the Vatican, Europe and much of the American Left are having a philosophic debate on whether this Israeli tactic or that tactic is "proportionate" and "just." Hey, get a clue! This is survival time! Whatever it takes to survive is "just" and "proportionate" if it keeps the murderers at bay and allows the Jewish people another day of life. True, Israel should use -- AND IS USING -- the commonly accepted code of military conduct, i.e., don't purposely target civilians, work to avoid collateral damage, etc. But to demand that Israel fight a "just war" "that it use proportionate tactics (whatever that means)" as defined by third parties not facing Israel's risks, is to hold the Jewish state to a standard that no one else has ever been held to. It is just another example of the contemptable double standard much of the world holds Israel (and the U.S.) to.

proportionality
Hezbollah is using Lebanon's infrastructure to rearm, and to move soldiers and supplies about.

This entitles Israel to destroy that infrastructure.
The fact that the civilian population is inconvenienced by the loss of the airport and bridges is irrelevant.

Once hezbollah started using the infrastructure for military purposes, the infrastructure became a legitimate military target.

The purpose of the strike was to prevent Hezbollah from rearming and to limit their mobiity.
The strikes acheived that purpose.
There were no other means for acheiving that purpose.
By defintion, the strikes were proportional.

Just War
MarkTheGreat has improved Rosen and Van Gilder's fine arguments by making clear why direct intent to destroy infrastructure, however limited, might be justified. DaveSmith is actually accepting the argument by saying that Israel is respecting conventional rules. But his way of expressing himself runs the risk of going in the shocking direction a noted international columnist pointed out years ago. He quoted an Israeli who said: "I am willing to become Nazi-like in order to defend my country and people."
RLA Schaefer Dubuque

Just War 2????
Rlash, I would be the last to advocate that Israel, or anyone else fighting for their very survival, take a lesson from the Nazi abomination. As I stated, Israel should -- and is -- observing conventional rules of warfare. What I object to is all this hair-spitting, hand-wringing and pontificating from Jew-baiting Europeans, the Vatican's anti-Jewish wing and the American Left that hold Israel to a new and unique set of rules that no other nation has ever been required to observe. I object to the double standard that puts under the microscope every action of the Israeli military, yet blythely ignores the most blatent and outragious atrocities that are routinely practiced by the Islamofacists as they seek to murder and terrorize Israel and the West into submitting to their evil will.

Scalpel
Israel is using a scalpel, while its enemys are using chain saws.

"With Beirut's international airport closed after Israeli bombs ripped apart its runway, many tourists were trapped while others drove over the mountains to Syria — though Israeli warplanes struck the highway linking Beirut to the Syrian capital of Damascus early Friday, closing the country's main artery and further isolating Lebanon from the outside world."

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/07/13/international/i201458D66.DTL

The airport is not destoyed, the runways are damaged.

Just war??!!
The only JUST war is one that JUST ended and the aggressor was JUST soundly defeated.

I'm so tired of the whole arguement that one must not fight if an innocent flea might be harmed. The only rules is that a military should do it's best to destroy the enemy and, wherever possible, limit civilian casualties. When you have intel that says the enemy is here, you do not ignore it because there are civilians in the area.

As for hitting roads, bridges, power plants, airports, etc. it is called cutting supply. Lebanon is now, effectively, cut off. The only thing that gets into the country either trickles in on foot or is approved by Israel. This is how a superior military should deal with terrorists and insurgents.

Are you paying attention America??!!

Just war also
I take your points, DaveSmith. I don't think we would include Rosen and Van Gilder's column as requiring of Israel non-universal standards--particularly when they defend Israel's actions under the standards about which they are more precise than Bainbridge. Bainbridge himself did apply his standards to many others. Nonetheless, the silence of so many others about applying these standards to non-Israel agents is exasperating. I understand a UN committee won't even call Hesbollah "terrorists"--indeed, the U.N. has a hard time even defining terrorism, precisely because it doesn't want to apply universal standards.
RLA Schaefer Dubuque Iowa

The silence is defening
Especially in the U.N. I'm for disbanding the U.N. and starting over. They are either a terrorist organization or out of touch with reality. Either way, time for it to go away.

What is an observant Catholic?
I have never heard the term "observant Catholic" before. The term I always heard is "practicing Catholic" which means the person is attending Mass on Sundays and Holy Days, receiving communion and practicing the prescripts of the Roman Catholic Church. I asked some Catholic friends and they didn't know what it meant.

It's a 'tweener
I was told (by a Catholic friend) that this is a rarely used term to describe one who observes all the tennants of the Catholic faith. Often is describes a person who is not Catholic, but follows the basics of the Catholic faith and traditions.

Observant Catholic
"Practicing Catholic" and "observant Catholic" mean the same thing. Likely the usage arose from the fact that "observance" has the second meaning of "rite, ceremony." Both terms tend to focus on keeping the Church's rules regarding Sunday observance by Mass attendance and other sacramental requirements.
RLA Schaefer Dubuque Iowa

You are right
It is unjust (and foolish) to give quarter to an enemy that has sworn to wipe you off the map.

Anyone who suggests "proportionality" or that "just war" theories apply when you are fighting for survival is either naive or your enemy!

"Practicing Catholic" and "observant Catholic"
As a non-Catholic, I always thought from observation that an "observant Catholic" was one who took Catholic beliefs seriously and tried to live by them and that a "Practicing Catholic" was someone like John Kerry or Teddy Kennedy (someone who did not let their beliefs affect their public life, known in the olden days as a hypocrite). But that is just my observation from a limited sample.

Observant Catholic
On second thought, it may be that "observant" is an adjective more commonly used of a Jew than of a Catholic.
RLA Schaefer Dubuque, Iowa

Devout Catholic
It is fairly common to use the phrase "devout Catholic," besides "practicing," or possibly "observant."
RLA Schaefer Dubuque, Iowa

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