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Last week Yochanan Gordon posted a blog entry on The Times of Israel’s website entitled “When is Genocide Permissible?” The answer to this question so blatantly obvious that one has to wonder why the question was asked. Indeed, this inaugural post was almost one word long. However, I felt compelled to look at Mr. Gordon’s reasoning given that it has caused such outrage among people on both sides of the conflict. To borrow from J.S. Mill, doing otherwise makes dead dogma out of living truth (Mill, 37). Genocide is obviously evil, but the forensic examination of an argument with which we disagree is the best way to refute it and, hopefully, convince those who hold it to put it aside. By the time I heard about it the newspaper had taken down the entry, the blog had been discontinued, and apologies had been issued. However, the Internet never forgets. The argument is as follows:

  1. States have a duty to protect their citizens.
  2. The nature of warfare has changed removing past constraints.
  3. If genocide is the only way to protect their citizens, then it is permissible.

This argument is flawed for a number of reasons, but let’s go through these points one by one.

1. States have a duty to protect their citizens:

It’s hard to argue that this is not true. Israel has a right to self defence in order to protect its citizens from terror attacks. However, it is a jump from self-defence to genocide. Let’s assume that I have the right to self-defence when a mugger tries to take my wallet. I may choose to exercise my right by disarming and disabling the mugger (or not depending on the circumstances). This does not mean that I have the right to kill the mugger unless I can reasonably assume he has the intention and capacity to kill me. It doesn’t mean that in defending myself I can kill or seriously harm an innocent bystander. Rights and obligations are seldom absolute. There are constraints on how they are exercised. The tradition of just war theory has attempted to formulate such constraints in one how and when states can go to war.

2. The nature of warfare has changed removing past constraints:

The main thrust of the article is because warfare has changed the constraints on the state have vanished. There are three arguments at play here. The first is that war is no longer a series of pitched battles in which one side conquers the others and then there is peace. It is a protracted affair with no clear winner. There is an element of truth here. Asymmetric warfare is certainly more prominent in the early 21st century then it has been in the past or at least it occupies more column space in newspapers and websites. But so what? The moral relevance of protracted, asymmetric war is not self-evident. The column says there are no “time outs” in war, which presumably is referring to the humanitarian ceasefires and attempts to broker a more durable ceasefire. Truces have long been a part of war. Thucydides wrote of truces to collect and honour the dead between the Athenians and the Spartans. The refusal of which was seen as breach of the traditions of war (Thucydides, IV, 97.2-99).  This custom resembles the modern humanitarian truce. Carthaginian peaces have been the exception rather than the rule of warfare. As to the length of wars, they are not universally brief. The Peloponnesian War lasted more than a quarter century. The wars following the French Revolution lasted from 1792 to 1815. The length of the Hundred Years War is understated in its name. It lasted from 1337-1453.  So this seems a bit of a red herring.

The argument moves to the nature of the threat. The threat faced by Israel, according to Mr. Gordon, is existential. It is a matter of national survival. As a non-Israeli and a gentile, I do know what it is like to live under constant threat. However, the claim that in the face of such an enemy “nothing, then, can be considered disproportional” simply does not stand up to scrutiny. Michael Walzer has described the “supreme emergency exemption” in his writing on just war. This is a condition where a state, facing an implacable foe, can legitimately set aside the ethical constraints on warfare. The threat must be imminent and the measures taken necessary, insofar as there is no other option. The prominent example he gives is the bombing of German cities by the United Kingdom after the Fall of France. In these circumstances constraints against targeting civilians or minimising civilian causalities when attacking military targets are relaxed. This is because a Nazi victory would have spelled the end of the British way of life and possibly human civilisation (Walzer, 251-55).

Is Hamas this sort of foe? They certainly give that impression. Their charter includes the destruction or dissolution of Israel and perpetuates the anti-Semitic lies of The Protocols of the Elders of Zion. However, the fact is that they do not have the capacity satisfy this goal. Hamas may be an intransigent enemy of Israel, but they are also relatively weak. They do not possess an air force or a navy. Their fighters are poorly equipped when compared to the soldiers of the IDF. The do not possess weapons of mass destruction. The Iron Dome has proved effective at intercepting missiles. The existential threat to Israel is not imminent, so the supreme emergency, which might vindicate a claim that no act is disproportional, has not occurred. I’m not saying that they cannot harm Israel. They obviously can and do, but this does not make them an existential threat.

There is also a parallel argument that Palestinian civilians cannot be disassociated with terrorists. This has two parts. The first is that a Palestinian living in the proximity of rocket launchers or tunnels “cannot be considered an innocent civilian.” The second is that if Hamas is using people as human shields then this just shows why the gloves have to come off. Why this is the case is far from clear. Regarding the latter argument, it is absurd to suggest that when your enemy victimises innocent people you can as well. There is broad consensus that civilian casualties must be minimised in warfare and they cannot be legitimate military targets (See Geneva Convention (I), §50; Rome Statute, §8(2)(b), Walzer, 152-9). The people of Gaza did not choose to live in a warzone or to be used as human shields. This is especially relevant because of the difficulty in leaving Gaza. The person who chooses to take up arms for Hamas has agreed to hazard his or her life, their neighbours have not. Generally, we assume that people cannot be held liable for the brute luck of where they are born. Moreover, even if the proposition that all adult Palestinian civilians are complicit with Hamas is accepted, this still does not address the status of Palestinian children. Children are unable to bear responsibility for the actions of adults. The reason why states have a right to self-defence is because they are the guarantors of their citizen’s human rights. These are basic rights that do not vanish during wartime. This holds even when civilians are supporting groups like Hamas. Israeli troops can take reasonable steps to protect themselves, but treating all Palestinians like enemy combatants is unjustifiable (See Walzer, 186-93). There will always be innocents in wartime and their rights must be respected.

3. If genocide is the only way to protect their citizens, then it is permissible:

It should be noted that Mr. Gordon only asks the question whether it would be permissible, rather than answering in the affirmative. However, this is the implication of his post. Indeed, despite the title and the outrage that surrounds it, the final sentence is the only time where genocide is explicitly mentioned. For those who have sympathy with this line of thought perhaps it would be salutary to remember the definition of genocide. The Genocide Convention, which Israel has ratified, defines it as “acts committed with intent to destroy, in whole or in part, a national, ethnic, religious group” (Genocide Convention, §2). These acts include, but are not limited to killing, causing serious mental or physical harm, and deliberately inflicting conditions of life calculated to bring about physical destruction. It is difficult to imagine conditions in which a state’s continued existence would be predicated on such acts.  As stressed, the threat from Hamas is real but not existential. Yet even if it were existential, it could not justify the systematic murder of the Palestinian people. Ideas like the supreme emergency exemption accept that there are moments in history when the ordinary laws of war are suspended, when a state has no reasonable option but to break the rules of war. However, if a state was in the position to commit genocide, then it seems impossible that a people that is unable to resist their own destruction could be deemed a threat so dire that it would permit cold blooded and calculated extermination. Indeed, I am hard pressed to think of any circumstances where the massacre of innocent children would be the only way to ensure the survival of a state.

So my answer to Mr. Gordon is that genocide is never permissible.

I will conclude with a note about this blog entry. I am neither Israeli nor Palestinian. I am a political philosopher on the sidelines of the conflict. Perhaps for these reasons I should mind my own business. Indeed, I believe most Israelis would be horrified by Mr. Gordon’s post. However, one of the purposes of philosophy is to help us interrogate our judgements and intuitions. It helps us realise when we are wrong. Yet, while reading Mr. Gordon’s post I was struck by a moment of sympathy. There is a yearning for a sustained quiet in which Israelis can live normal lives without fear. This is something that all human beings deserve and is yearned for by those are denied it. However, the price can never be genocide. This delivers the quiet of the mass grave where silence brings no peace.

Bibliography:

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html [accessed 5 August 2014

J.S. Mill, On Liberty and Other Writings, (Cambridge: Cambridge University Press, 2009)

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 5 August 2014]

UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at: http://www.refworld.org/docid/3ae6b3ac0.html [accessed 4 August 2014]

Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th edition(New York: Basic Books, 2006)

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4 Comments

  1. Muhammad al-Hakeem
    August 7, 2014 at 12:21 am — Reply

    To boot, it seems Osama bin Laden’s rationalization of killing American civilians – liability for any ramification of their democratic choices – is resurfacing in pro-Israel rhetoric:
    http://www.mondoweiss.net/2014/07/israel-leader-rabbis.html
    http://www.ynetnews.com/articles/0,7340,L-4554583,00.html

    Can you also elaborate on how Hamas’ threat is “real”? According to the analyses below*, about 20 people, half of the total killed to date and including soldiers, have been killed by Hamas’ rockets prior to the institution of the Iron Dome, and the rate of fatalities have been highest during the Israeli offensives against Gaza throughout these 13 years since rocket firing commenced. With the greatest of respect, Hamas’ rocket attacks seem to me plainly largely innocuous and merely signify reckless, nominal resistance to the Israeli occupation. If Hamas poses a real threat to Israel, then what does Israel currently pose to Gazans as a whole?

    *http://mondoweiss.net/2012/11/dissecting-idf-propaganda-the-numbers-behind-the-rocket-attacks.html; http://mondoweiss.net/2014/07/rocket-deaths-israel.html#Rocket_Fatalities_notes

    • August 13, 2014 at 3:03 pm — Reply

      Dear Muhammad,

      Thanks for your comments. The question of democratic responsibility is interesting and problematic. The central issues with these arguments is that, even if a stringent argument for democratic responsibility can be made, the problem of children remain. I would certainly have reservations about a theory of intergenerational responsibility that would leave people open to sudden violent death based on the decisions made by previous generations. However, this is something that I will have to think more about.

      I stand by my claim that Hamas poses a threat to Israel, though not an existential one. It is clear from statements from their leaders and their actions, regardless of whether they are effective. This does not mean that Israel does not pose a threat to Palestine or that their ability to harm Palestinians is not significantly greater than Hamas’ ability to harm Israelis. The proportionality of Israel’s response to acts of Palestinian resistance is a source of great concern. This is clear from the great disparity between Palestinian and Israeli civilian fatalities. The point of my blog entry was to explain why genocide is never a proportional response and I think we agree. The question of what constitutes proportional responses to threats and justifiable resistance is more difficult and I hope to address them more comprehensively in the future.

      Best wishes,
      David

  2. Robert Adam
    August 7, 2014 at 3:37 am — Reply

    Hi,

    I agree with the bulk of you analysis and certainly it seem that children can never justly be the victim of a mass murder but I would like to suggest a scenario in which your final point would not stand up. You say “Ideas like the supreme emergency exemption accept that there are moments in history when the ordinary laws of war are suspended, when a state has no reasonable option but to break the rules of war. However, if a state was in the position to commit genocide, then it seems impossible that a people that is unable to resist their own destruction could be deemed a threat so dire that it would permit cold blooded and calculated extermination.”

    In a nuclear standoff where both parties are equipped with a nuclear arsenal capable of destroying the other it seems possible that one party could deem the other an existential threat yet also be in the position to commit genocide and, perhaps, compelled to do so to prevent their own destruction. What are your thoughts on this? My knowledge of the ethics of warfare is rather limited so….

    • August 13, 2014 at 3:03 pm — Reply

      Dear Robert,

      Thanks for this interesting test case. I’ll have to mull it over a bit, but there are three points that strike me. The first is that in cases where both parties have nuclear arsenals they are in a situation of mutually assured destruction. If this were the case then they wouldn’t be in a position to commit genocide (at least without suffering the same fate). Secondly, if the nuclear state was not in a position of mutually assured destruction then they could not be under an existential threat. If they could destroy their enemy without consequences then it stands to reason that they would possess an acceptable amount of security to keep the genocide prohibition in play. However, these are a little superficial. The third point goes to our understanding of genocide. The major documents in international law that relate to genocide (Rome Statute, Genocide Convention) stress that it is a series of acts (ethnic cleansing, concentration camps, mass killing) carried out with intention of destroying a specific national, ethnic, or racial group. In the nuclear standoff situation might not meet the intentionality requirement for genocide, since, as you say, the state is compelled to act in self-defence. However, the self-defence argument is somewhat worrying since it could be used as a cipher for less justifiable reasons.

      Best wishes,
      David

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