Mick Hartley

Good points from Nigel Biggar in the Spectator on the ICC ruling against Netanyahu and Gallant:

The ICC claims reasonable grounds for believing Benjamin Netanyahu and Yoav Gallant guilty of the war crimes of ‘intentionally and knowingly depriv[ing] the civilian population in Gaza of objects indispensable to their survival’, creating ‘conditions of life calculated to bring about [their] destruction’. The grounds are these: Israel’s failure to facilitate relief ‘by all means at its disposal’ and to ‘ensure that the civilian population… would be adequately supplied with goods in need’ amounts to a violation of the ‘fundamental rights… to life and health’.

There are two major ethical problems with this. The first concerns the concept of intention. We often do something in full awareness that it will have an undesirable consequence we don’t want, but we do it anyway for the sake of a desirable consequence we do want. And if that desirable consequence is more important, or if we are under an overriding obligation to prefer it, then our causing the undesirable consequence is proportionate – provided we take all feasible steps to minimise it. That’s the ethical principle of ‘double effect’. The desirable consequence or effect is what we intend; the undesirable effect we accept with active reluctance….

According to this logic, which characterises the ethic of ‘just war’ thinking, it’s permissible to attack a military objective, knowing it will risk civilian casualties, provided that risk is unavoidable and all feasible measures are taken to minimise it. One may intend the effect of disabling enemy combatants, while reluctantly accepting injury to civilians as a tragic side-effect. Certainly, this is permissive, but that’s because, otherwise, the successful waging of war, however just the cause, is practically impossible. Nevertheless, unburdened by concern for military success, the ICC considers that any military action taken in the knowledge that it will put civilians at risk of injury intends – is ‘calculated’ – to destroy them.

Telling against the judgement that Israel has any such intention are the measures taken by its military to minimise harm – giving advanced warning of attacks, using weapons of minimally destructive power, and providing some humanitarian aid.

Plus the fact that much of the humanitarian aid coming in to Gaza was seized by Hamas for their own use.

Had it been sitting in judgement on the prosecution of the war against the massively murderous Nazi empire by Britain and the US, the ICC would have issued arrest warrants for Churchill and Eisenhower. While invading Italy in 1943, the Allies caused old men, women, and children to be torn apart by bombs and shells, exposed to the wintry elements by the destruction of their homes, and starved of food and water. They did this ‘knowingly’, aware of the effects of their unavoidably imprecise bombing and shelling. But they didn’t intend civilian harm and sought to minimise it, as far as war-winning allowed. Nonetheless, their efforts weren’t ‘adequate’ to save tens of thousands from perishing.

Plenty of examples from WW2 – also, for instance, the destruction wreaked on Normandy after the D-Day landings, as the Allies advanced on Paris.

The presumptuousness of a court that declares itself devoted to the cause of ‘lasting peace’, its novel and imprudent intrusion of a concept of fundamental human rights into the laws of war, and its neglect of the principle of double effect, all combine to drive a legal interpretation that makes successful war-fighting unlawful, however just its cause. Thereby the ICC undermines its own authority, forcing states intent on military victory to repudiate its jurisdiction.