Killing civilians intentionally: Double effect, reprisal, and necessity in the Middle East

Political Science Quarterly

Volumn 120, Issue 4, 2005, Pages 555-579

  Gross, Michael L ^a  

^a UNIVERSITY OF HAIFA   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33644772617     PISSN: 00323195     EISSN: None     Source Type: Journal    
DOI: 10.1002/j.1538-165X.2005.tb00557.x     Document Type: Review

References (62)

1. Commentary and Article 3, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, accessed at http://www.icrc.org, 14 September 2005.
2. Serge Schmemann, "US Peace Envoy Arrives in Israel as Fighting Rages," Ha'aretz, 15 March 2002.
3. Leslie C. Green, The Contemporary Law of Armed Conflict, 2nd ed. (Manchester, UK: Manchester University Press, 2000), 124.
4. I use the word "insurgents" to describe Palestinian forces engaged in armed combat against Israel. Defined by the Oxford English Dictionary as one who "rises in active revolt," "insurgent" also captures the meaning of the word "Intifada" (uprising) that the Palestinians use to describe their conflict. Insurgent forces include terrorists and members of the various Palestinian security forces and militias. The latter are lawful combatants, insofar as their military organizations maintain an "internal disciplinary system," enforce "compliance with the rules of international law applicable in armed conflict," and commit their soldiers to carrying their arms openly during military engagements, although not necessarily to wearing identifying uniforms or insignia (Protocol I,1977, Articles 43,44). Terrorists are those insurgents who indiscriminately and intentionally target civilians and wantonly violate the laws of armed combat.
5. Robert L. Holmes, On War and Morality (Princeton, NJ: Princeton University Press, 1989), 193-200.
6. Robert L. Holmes, On War and Morality, Ibid., 199.
7. H. L. A. Hart, Punishment and Responsibility, Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), 119-120.
8. Alison MacIntyre, "Doing Away with Double Effect," Ethics 111 (January 2001): 219-255;
9. Holmes, On War, 199.
10. Hart, Punishment and Responsibility, 127.
11. Warren S. Quinn, "Actions, Intentions and Consequences: The Doctrine of the Double Effect," Philosophy and Public Affairs 18 (Fall 1989): 334-351.
12. Jeff, McMahon, "Revising the Doctrine of Double Effect," Journal of Applied Philosophy 11 (1994): 207.
13. Quinn, "Actions," 342.
14. A. J. Coates, The Ethics of War (Manchester, UK: Manchester University Press, 1997), 244.
15. Susan Uniacke, "Double Effect, Principle of in Edward Craig, ed., Routledge Encyclopedia of Philosophy (London: Routledge, 1989), 202. Some philosophers also have suggested that TB, like SB, does not actually need to cause civilian deaths in order to demoralize the enemy and hasten the end of the war. All TB requires is the appearance of their death. McMahon, "Revising the Doctrine," 202. "If, unbeknownst to the government, the civilians were to escape harm by hiding in deep shelters until after the surrender, this would not frustrate the terror bomber's plan." (The Hizbollah, for example, will often leave the impression of having killed their victims without ever confirming that this is so. They have created the appearance of death necessary to undermine enemy morale without necessarily having actually killed anyone. Something like this occurred when they kidnapped three Israeli soldiers in 2000. A year later, the Israeli army declared the soldiers dead but only recovered their bodies in 2004. While the Hizbollah sought to trade information about the soldiers for captives held by Israel, the action undoubtedly affected the morale of soldiers serving on the Lebanese border. Their morale was equally undermined regardless of the state of health of the those kidnapped earlier.
16. Ruevan Pedazur, "The Wrong Way to Fight Terrorism," Ha'aretz, 11 December 2002.
17. Eldar Akiva, "Liquidation Sale for the Peace Process," Ha'aretz, 4 January 2001.
18. McIntyre, "Doing Away," 229, citing the traditional DDE;
19. Holmes, On War, 199;
20. John C. Ford, "The Morality of Obliteration Bombing" in Richard A. Wasserstrom, ed., War and Morality (Belmont, CA: Wadsworth Publishing, 1970 [1944]), 27.
21. Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881-1999 (New York: Knopf, 1999), 161-258.
22. Ford, "The Morality of Obliteration Bombing," 24, emphasis added.
23. Ford, "The Morality of Obliteration Bombing," 24, Ibid.;
24. Geoffrey Best, Humanity in Warfare (London: Methuen, 1980), 242-285;
25. Biddle Tami Davis, "Air Power" in Michael Howard, George J. Andreopoulos, and Mark R. Shulman, eds., The Laws of War: Constraints on Warfare in the Western World (New Haven, CT: Yale University Press, 1994), 140-159;
26. Frits Kalshoven, Belligerent Reprisals (Leyden: A. W. Sijthoff, 1971);
27. George H. Quester, "The Psychological Effects of Bombing Civilian Populations: Wars of the Past" in Betty Glad, ed., The Psychological Dimensions of War (Newbury Park, CA: Sage Publications, 1990), 201-235.
28. Kalshoven, Belligerent Reprisals;
29. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 207-222;
30. Burton M. Leiser, "The Morality of Reprisals," Ethics 85 (January 1975): 159-163;
31. Andrew D. Mitchell, "Does One Illegality Merit Another? The Law of Belligerent Reprisals in International Law," Military Law Review 170 (December 2001): 155-177.
32. Abraham Sofaer, "Agora: The US Decision not to Ratify Protocol 1 to the Geneva Conventions on the Protection of War Victims (contd): The Rationale of the United States Decision," American Journal of International Law 4 (October 1988): 784-787.
33. See "States, Parties and Signatories," accessed at http://www.icrc.org/ihl.nsf/WebNORM?OpenView& Start=1&Count= 150&Expand=52.1#52, 14 September 2005.
34. Frits Kalshoven, "Belligerent Reprisals Revisited," Netherlands Yearbook of International Law 21 (1990): 67;
35. C. Greenwood, "The Twilight of the Law of Belligerent Reprisals," Netherlands Yearbook of International Law 20 (1989): 61, 65.
36. Less poetically: "The psychological reality prompting [reprisals] was often merely thirst for revenge, lust to hurt and punish, or simply self-indulgent desire to save trouble [that] unless carefully regulated tended to escalate into horrid spirals of cruelty and counter-cruelty"; see Best, Humanity of War, 167.
37. See also Bryan Brophy-Baermann and John A. Conybeare, "Retaliating against Terrorism: Rational Expectations and the Optimality of Rules vs. Discretion," American Journal of Political Science 38 (February 1994): 196-210;
38. and Kalshoven, Belligerent Reprisals, 214.
39. Michael L. Gross, "Fighting by Other Means in the Mideast: A Critical Analysis of Israel's Assassination Policy," Political Studies 51 (June 2003): 350-369.
40. These efforts are not always successful. According to B'tselem, forty-two civilians were killed and eighty-six Palestinians were assassinated. "Fatalities in the al-Aqsa Intifada, 29 September 2000-15 February 2003," accessed at http://www.btselem.org/, 18 February 2003.
41. See also John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 79-80 for a similar distinction. A liberal society upholds human and civil rights, whereas a decent society need only respect human rights. For Rawls, human rights roughly encompass articles 1-18 of the Universal Declaration of Human Rights. The International Covenant on Civil and Political Rights (1976, Article 4) is less restrictive. The only nonderogable rights during war or public emergency include the right to life, freedom from torture, slavery, servitude, and retroactive legislation, freedom of conscience, the right to recognition before the law, and the right to not to be imprisoned for breach of contract.
42. Human rights organizations document avoidable deaths due to delays at roadblocks as well as increased rates of infant mortality among Palestinians. See Physicians for Human Rights, "Targeting Medical Care: Israel's Recent Incursion into the West Bank Renews Attacks on Ambulances" 4 April 2002, accessed on the website of Physicians for Human Rights, Jerusalem, at http://www.phr.org.il/phr/article.asp?articleid=198&catid=41&pcat=5, 14 September 2005;
43. B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, "Wounded in the Field: Impeding Medical Treatment and Firing at Ambulances by IDF Soldiers in the Occupied Territories," accessed on the website of B'Tselem at http://www.btselem.org/Download/ 200203_Medical_Treatment_Eng.pdf, 14 September 2005;
44. B'Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, "No Way Out: Medical Implications of Israel's Siege Policy," accessed on the website of B'Tselem at http://www.btselem.org/ Download/200106_No_Way_Out_Eng.doc, 14 September 2005.
45. Ford, "The Morality of Obliteration Bombing," 24, emphasis added.
46. In the first quarter of 2002, before the operation, there were 40 suicide bombings inside the 1967 borders; in the second quarter, 23, in the third, 17, and in the fourth, 12, and in the first quarter of 2003, 5; see Amos Harel, "Uneasy Quiet on the Western Front, Ha'aretz, 24 April 2003;
47. and Amos Harel, "Relative Success Fighting Terror" Ha'aretz, 9 February 2003 (Hebrew).
48. For the twelve-month period (March 2001 through February 2002), 99 civilians were killed by terrorists within the pre-1967 borders (8.25 per month). In March, 2002, 67 civilians were killed, prompting Israeli military action. In the twelve months since March 2002 (April 2002 through March 2003), 159 were killed (13.25 per month). Civilian deaths since 21 June 2002, the date marking the complete reoccupation of the West Bank, total 96 (through March 2003), or 10.7 deaths per month. All figures from B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, accessed on the website of B'Tselem at http://www.btselem.org/english/statistics/Casualties. asp, 14 September 2005.
49. Walzer, Just and Unjust Wars, 251-268;
50. see also Brian Orend, "Just and Lawful Conduct in War: Reflections on Michael Walzer," Law and Philosophy 20 (January 2000): 1-30.
51. Israel's Penal Law, section 22, cited in Landau Commission (3,11 "Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity," Israel Law Review 2, 3 (Spring, Summer 1989): 146-188.
52. David Cohen, "The Development of the Modern Doctrine of Necessity: A Comparative Critique" in Albin Eser and George C. Fletcher, eds., Justification and Excuse: Comparative Perspectives, vol. 2 (Freiburg: Eigenverlag MPI, 1987,1988), 973-1001.
53. Best, Humanity in Warfare, 174-179.
54. See Quester, "The Psychological Effects," 201-235.
55. C. Curran, Themes in Fundamental Moral Theology (Notre Dame, IN: University of Notre Dame Press, 1977)
56. cited in Coates, The Ethics of War, 261.
57. Yezid Sayigh, "Arafat and the Anatomy of a Revolt," Survival 43 (Autumn 2001): 47-60;
58. Kirsten E. Schulze, "Camp David and the Al-Aqsa Intifada: An Assessment of the State of the Israeli-Palestinian Peace Process, July-December 2000," Studies in Conflict and Terrorism 24 (May-June, 2001): 215-233;
59. Rema Hammami and Salim Tamari, "The Second Uprising: End or New Beginning?" Journal of Palestine Studies 30 (Winter 2001): 5-25;
60. David Makovsky, "Taba Mischief," The Public Interest 151 (Spring 2003): 119-129.
61. In a 2002 poll, 66 percent of Palestinians believed that armed confrontations have so far helped to achieve Palestinian rights in ways that negotiations could not. Palestinian Center for Policy and Survey Research, Public Opinion Poll # 6, 14-22 November 2002, accessed at http://www.pcpsr.org/ survey/polls/2002/p6a.html, 11 February 2003.
62. Thucydides, The Peloponnesian War, the Crawley translation, revised and edited with an introduction by T. E. Wick (New York: The Modern Library, 1982), I, 80-82. I admit to a rather liberal interpretation. Archidamus may simply be saying, "If you must go to war, make sure you don't lose."