Responding to the amazing Shaiya Rothberg:
On “Intentionality”:
We are living inside a discourse able to rationalize the intentional mass extermination and starvation of the Gazan civilian population. It’s a kind of newspeak involving rhetorical sleights of hand which help dull our critical and moral faculties. For example, we as a society talk about how the mass killings in Gaza are “unintentional”.
If I do something unintentionally, that means I didn’t expect it to happen. If I knew what was going to happen and did it anyway, I did it intentionally.
For example, if someone unintentionally steps on your foot, it means they didn’t mean to. If they meant to, then it wasn’t unintentional. That’s how we use this word. Even if they stepped on your foot to kill a scorpion about to sting you, they still did it intentionally.
Israel is intentionally killing and starving tens of thousands of Gazan civilians. No one is surprised that they are dying. It is a repeat performance every day for months on end. Everyone knows that the next bombing or shooting will kill more civilians. It is intentional.
If I shoot someone in the head so as to kill the person standing behind him, I shot them both intentionally. I can honestly say that my purpose was to kill the other guy, and can be sorry I killed the guy whose head was in my way, but I can’t say I did it unintentionally.
This is how the slippery oil of militaristic newspeak works: We start off making the claim that the state is killing thousands of Gazan civilians for a higher purpose (to destroy Hamas). That claim then takes on the less accurate form of “we don’t mean to kill the civilians”. That then is transformed into the full-on false claim that “the killing of civilians is unintentional”. This enables us to walk around feeling like the death and starvation of civilians perpetrated by Israel in Gaza is somehow an accident, rather then the fully expected result of the actions taken by the state.
As perverse as this distinction has become in the current Gaza war, I have to disagree that the idea of killing someone knowingly through an intended action, but not intentionally is “militaristic newspeak”. These kinds of terminological problems are very old within moral and legal discourse. For example in the English-speaking, common law tradition you usually have the distinction between “willingly” (which can have stronger qualifications, like “malicious intent” and “premediation”) and “knowingly”—if you kill someone by some action with a different intention while knowing that it will or might kill the person for example, it might be a different crime. In German penal law the term “vorsätzlich” (which in everyday language would translate to “intentional”) however is also applied to deeds that would merely be called “willingly” committed in Common Law (and even “recklessness” from Common Law is described as “bedingt vorsätzlich” in German penal law, while the term “absichtlich”—“deliberately”—is reserved for not including mere “knowing”). So we already see that just by translating between different languages there will be confusions about this distinction concerning merely normal issues of penal law unrelated to war. My Hebrew is very limited, I cannot tell what all the different terms involved in Hebrew are, but while there is of course a lot of downplaying of the degree of intentionality involved, it is linguistically not that clear that the claims are “full-on false”, or even intentional lies.
Such distinctions have been most prominently introduced by Thomas Aquinas with his theory of double effect which is also considered as the basis for understanding collateral damage and proportionality in modern international humanitarian law/laws of war:
“Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental as explained above. Accordingly the act of self-defense may have two effects, one is the saving of one’s life, the other is the slaying of the aggressor. Therefore this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in ‘being,’ as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful, because according to the jurists, ‘it is lawful to repel force by force, provided one does not exceed the limits of a blameless defense.’ Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s. But as it is unlawful to take a man’s life, except for the public authority acting for the common good, as stated above, it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good, as in the case of a soldier fighting against the foe, and in the minister of the judge struggling with robbers, although even these sin if they be moved by private animosity.”
Here it is also very clear that Aquinas considers an “intentio” not to include every known effect. What is also interesting is that in the context of war Aquinas allows the soldier to have the intention to kill. Of course we have to see this in the context of Aquinas considering not just wars in self-defence to be potentially just (for example according to Aquinas also a humanitarian intervention to stop a genocide might be just). But we arrive at the problem that in war there will be different intentions involved, i.e. at least the one of the individual soldier and the one of the “public authority”, so when talking about the bad intentions involved in the war at least according to Aquinas we have to give additional respect to the circumstance of the soldier acting on behalf of public authority, which makes certain otherwise evil intentions even inevitable, while at the same time the intentions of the decisions of the public authority must be scrutinised as well. Aquinas does not provide any details about these questions anywhere in his works (he actually devotes only a few pages to war). In modern international humanitarian law and international criminal law a criminal intent to target civilians alongside combatants for its own sake or to commit disproportionate collateral damage can be situated on all levels of command, furthermore there are State obligations to prevent these things, even if there is no criminal intent to be established anywhere.
Now concerning the current war I have indeed been quite puzzled by these questions since a while. People argue that there is a categorical difference between massacres perpetrated by Hamas, where civilians are murdered to tell Jewish Israelis that Hamas does not want coexistence with them, and collateral damage—and of course I agree. And supposedly intention plays a big role in the difference between the two—I am however getting less and less confident about what to do with the intention criterion, is it really morally speaking such a qualitative difference, or might it be rather dictated by certain economic and technological factors that shape the concrete forms of evil? Then even in cases where collateral damage is strictly necessary and proportionate, there might be additional intentions for example for revenge or collective punishment involved—according to the intention-centered theory of Aquinas this still makes a moral difference—many pro-Palestinian groups and human-rights groups indeed put big emphasis on those intentions—but are these intentions truly more relevant than the question of proportionality? I doubt that and I would wish if people would discuss more about the utter lack of proportionality, the insanely low standards for proportionality in the Israeli military, rather than about these additional intentions. As Michael Walzer writes: “ The principle for that reason in vites an angry or a cvnical response: what difference does it make whether civilian deaths are a direct or an indirect effect of my actions? It can hardly matter to the dead civilians, and if I know in advance that I am likely to kill so many innocent people and go ahead anyway, how can I be blameless?” So is this focus on intention (which I see by the way both with some of the most outspoken critics and with apologetics of Israeli warfare in Gaza) just some artifact from arcane Christian moral teachings? While asking about proportionality for example is at least a bit more concrete?
Yet, I actually do think intention matters. And things get complicated because there are not just double effects, but also double intentions. For example we have to ask for the intentions behind accepting disproportionate collateral damage (in actions for which we for the moment shall assume that they are directed at achieving the legitimate goal of removing the threat from Hamas in self-defence, or at least assume that some soldiers or officers believe that), either in an individual case or as a matter of military policy. One reason in the case of Israel is certainly that Israeli fatalities shall be minimised. And while I think that it is utterly immoral to bomb an appartment complex “preventively”, expecting dozens of civilian fatalities, because one does not want to risk even one of one’s own soldiers being put at risk of being targeted in an ambush from that building when trying to storm it with infantry, because this is clearly disproportionate (unless we have a very lax understanding of proportionality, and unfortunately this has not been handled well in written international laws and case law), still I would see there is a moral difference between accepting the disproportionate collateral damage for that reason rather than with the intention of collective punishment.
But then of course we have to ask further questions, what is the intention behind the intention of not wanting to accept more fatalities on one’s own side to spare civilian lifes. Racism, different valuation of human life is one aspect. Another aspect is that this government wants to remain in power at all costs and avoid criminal prosecution. This makes the more acceptable character of the intention on the lower level less acceptable again. And then these intentions might even change the originally proclaimed intentions, removing Hamas from power might at the end not be the intention at all, but because of all those other considerations keeping Hamas at power while continuing the war and the devastation and the collective punishment might actually become the intention of the whole military endeavour and then the basic point of departure of self-defence of Hamas is no longer at play.
So what to do about it? I do not know. There is a complex interaction between the government, the opposition, the Israeli public, the military leadership, middle-rank commanders and individual soldiers at play, all of them have some “intentions” which together result in this criminal war, but what is “the intention” behind it? And whose intention is this intention? All this becomes even more complicated by new phenomena like the automatisation of target selection. And in a war which is fought rather as an endless series of up-scaled targeted killing strikes and raids than as a conquest. the definitions of proportionality become hard to apply and are totally undermined (what is the military value of killing a replaceable Qassam fighter?). Of course, however when it comes to disciplinary measures and criminal persecution, we cannot just dismiss these intentionality questions.
Generally speaking I would like to speak more about the extreme devaluation of Palestinian life (based on a complex web of military strategy and tactics, economy of humanitarian relief/blockade, propaganda) on the one hand and the strategic objectives of all the war effort (whose strategy I consider to be a crime against humanity in itself) on the other hand. Those intention-focussed categories of “massacre” and “genocide” create heated debates without any end and not helping to understand. Although Israeli “free-fire” policies can be well described as enabling massacres, this is not even the central cause of all the suffering.
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