Marc LiVecche’s lecture at Christianity & National Security 2023.
Marc LiVecche discusses the Just War Tradition and the Israel-Hamas conflict. The following is a transcript of the lecture.
As much as I’d like to cede part of my time to get Becky to tell us exactly when hostage-taking is okay, she’s not in the room right now. So, I guess I’ll have to continue. All right, I’m going to give you a heavy definition, maybe of the just war tradition, and I’m going to unpack that. The definition is this: at its moral center, the just war tradition is an exercise of justice against unwarranted aggression. It helps to guide the political sovereign, the authority over whom there is no one greater, charged with the care of the political community, in determining when, in the last resort, the discriminate and proportionate use of necessary military force is the only means likely to sufficiently protect the innocent, right wrongs, or to punish evil with the aim of restoring justice, order, and peace to those who are in conflict in a manner that’s the just war tradition. Now, we’re going to unpack that definition through an examination of Israel-Hamas. Some of this is going to be sort of not remedial work, but revision, not revision review, that’s the word I want, of what Rebecca Heinrichs said and possibly Eric Patterson. I was near for his talk, so you need to hear something more than once in order for it to sink in. So let this be that.
All right, you ought to know that the just war tradition as a moral framework helps us to do two primary things. It helps us to identify when it is right to fight. This is called the use ad bellum or the JAB. This guides us toward understanding when war might be justified, justice toward war, those sorts of analyses. Secondly, there is the use in bello or the JIB, which helps us to know how to rightly fight this fight. That’s right, to fight. All right, this talk is going to have three points of focus, like probably every single time that Israel has had a fight with its neighbors, especially with Palestinian terrorists or Hezbollah. Critics decry their actions as disproportionate, and I know Rebecca touched on this. In most cases, the critics betray a fundamental misunderstanding as to what precisely proportionality requirements in war really are, both under international law, but certainly under just war cause. The just war tradition and both its JAB and JIB frameworks will help us to clarify this.
So, we’ll touch on that. The second point of focus is to discuss the second requirement or the third requirement, I’ll complicate that in a moment, of the JIB, of the use in bello requirement. And this is discrimination, so this is going to help us get at the problem of killing innocent people. And then the third thing is just sort of a Koda, and I want to reflect briefly on the importance of sovereignty and national character in fighting just wars justly.
All right, so the use ad bellum, the JAB. Maybe I should just open this up and make a quiz out of this. Can you guys tell me what are the requirements of the JAB? What’s baked into the first moral framework that tells you when it is right to fight? What are some of the things? Just call them out. Sovereign authority. Sovereign authority, and he even gets the order correct. Don’t let anybody fool you. Some people put the second or third; they’re crazy. It’s the first thing. Why? We’ll get to that. What are the other… what are two of the others? Right intention, okay, let’s call that the third one. Was that Daryl in the back? That wasn’t you, was it? Okay, you keep your mouth closed for now, Daryl. All right, what else? So, you have to have a right authority, you have to have the right intent. What else do you need before you go to war ’cause a just cause. Right, you got to have a reason, right? These let’s call these our first three primary criteria. There’s the right authority, there’s a just cause, and there’s the right intention. Thomas Aquinas maps over this Augustine’s three primary goods of political life: order, justice, and peace.
So, the reason we put sovereign authority first is that the first order of business is order, right? You need things properly ordered. It’s the sovereign authority, and then justice, the just cause, is usually broken into three things: protect the innocent, right wrongs, or requite injustices, and punish evil, right? These are three just causes. So, justice, and then the third primary requirement is peace. So, proper intention in war, the proper intent of going to war is peace. Now, it’s in the first degree; it’s peace for the people that are under siege, peace for the victims. But in the second degree, and this isn’t always up to us, the desire ideally is to reconcile with the enemy, right? The reason it’s not always up to us, of course, is the enemy always has a vote and that matters. So, if at the end of the day, we only get peace for those who have been victimized, that will have to be sufficient, right? But ultimately, we war to bring our adversary back into sort of the fellowship of nations, right? We go to war for peace, in order to get peace. It shouldn’t be forgotten, however, that the aim of war is victory. And this is sometimes bizarrely unpopular, right? But if a war is right to fight, a war is right to win. All right, so we’re going to touch on that in a little bit when it comes to the necessity of decisiveness in a fight. All right, so those three things, I call them the primary criteria; some people call them the deontological criteria. You have to have these things in order for a fight to be right. You could even stress it a little bit further: if you have these three things, not only is a fight right to fight, it might even be obligatory to fight. And you have to have good reasons for not fighting it if you have these things in place.
All right, if the innocent are being sufficiently threatened, you need to do something about that, right? If injustices have gone on to an extreme, you need to requite them. If evil needs to be punished, you would better do it. So, it’s not just permission; you should feel the stress of obligation. Now, why wouldn’t you do these things then? Well, there’s another set of criteria that are sometimes called the credential criteria of the JAB, of the use ad bellum. Anybody know what some of the credential criteria are? Chance of success, the gentleman over there at the good tie. Chance of success, probability of success, right? Does that get the juices flowing? You look like you’re about to say something, Stu. He stole yours? All right, any others? I usually, and here, depending on who you talk to, you get all sorts of criteria, right? I think, and I’m trying to remember how many I count. I think I count three, right? There’s probability of success, there’s proportionality of ends, ∂kand the stress here is important because if cutting the kid’s leg off is going to be so traumatic to his already wounded self that he’s not going to survive the surgery then I probably don’t do the surgery and I just render whatever care I can to you know help escort him into the next life right. Is it proportional? Am I going to cut off both legs or just the one right? Of course, it’s going to be proportionate to the aim that I have. Is it the last resort? If I could just give medication to clear up the Gang Green maybe I should just do that right.
So you see all the pieces that tell us when it is right to kill people and break things exist whenever two or more goods come into conflict. Alright, so that’s important. There are times that the credential criteria overrule the duty, right, and those moments are tragic. But it may be that I’ve identified a proper cause, something needs to happen, but I can’t do anything that’s going to fix this situation. I’m only going to make matters worse, right. Some people will say Rwanda was a case like that. It wasn’t, they were wrong, but that was their excuse, rightly or wrongly. And those moments are tragic, but they exist, okay.
The main point of this is to talk about the jib, the using bellow, so I’m going to leave that there. If you have questions about the jab afterward, we can get back to them. I want to give a little bit of background, darl, did you talk about Gene Elin yesterday? Oh, you didn’t, okay. Gene Elin, so this is going to make any sense to you, but Gene Elin was my PhD supervisor, a dear friend of darl and eyes, and this year marks the death scenario, the 10 years, 10-year anniversary of her death. I was just going to reference Daryl’s comments by saying Elin was always adamant, and this is so obvious it’s a truism, but before you can do any kind of ethical work, you have to have the facts on the ground as clear as you can get them, right.
When we talk about Israel Hamas, it’s going to be helpful here to say a little bit about Hamas, and Paul touched on some of this, but I want to touch on a little bit more to set the stage. Hamas, you ought to know, is a breakaway group from the Muslim Brotherhood. In their original 1988 Charter that justified their existence, they emphasized four main themes: the obliteration of Israel and the establishing in its place of an Islamic theocracy in Palestine. This is their essential thing, their reason to exist. They emphasize unrestrained Jihad as being necessary to achieve this goal. They emphasize that negotiated resolutions, political solutions to Jewish and Palestinian claims to the land, are simply unacceptable, right, forget about them. And then fourth, they use historic anti-Semitic tropes to reinforce these goals.
They have an updated 2017 Charter which moderates their position by stating that Hamas is not anti-Jewish per se but simply anti-Zionist. But it neither renounces any element of the 1988 Charter, and it explicitly retains the goal of completely eliminating the state of Israel. So the pithy motto which you might have heard recently, from the river to the sea, means that Palestine will only be free when there is at least no Jewish State between the Jordan River and the Mediterranean. Now whether or not this pithy statement allows for the existence of individual Jews between the Jordan and the Mediterranean is maybe less clear. However, I would suggest that October 7th makes sufficiently clear that Hamas’ vision seems simple to say, but it sometimes has to be said that the planned and executed torture, rape, kidnappings, setting aflame, and murder of civilian men, women, children, and infants is an abomination.
There is simply no warrant for the crimes that Hamas perpetrated. In response to such atrocities, the just war tradition presumes a two-fold obligation of punitive and non-punitive justice. I’ll unpack this. So more than morally permitted, Israel is obligated, as I’ve alluded to, they are duty-bound to seek justice by punishing Hamas, by vindicating the victims, and by defending itself from further harm. Alright, two kinds of victims are in view here, both direct and indirect. Hamas committed atrocities directly against particular individual persons, each with a name and a history and a uniquely appointed divine vocation that has now been extinguished. Indirectly, the nation as a whole is a victim too of a general threat, the fear and insecurity of knowing that they could and would have been victims of the enemy if the enemy’s grasp could extend that far.
Israel was reminded again not just of the ambition of many of their neighbors for a land cleansed of Jews from river to the sea, but of the fact that there are people in this world who mean to eliminate them from the earth. It pays to remember that October 7th was the largest loss of civilian Jews since the Holocaust, right? That’s important to remember. Now, what does it mean to say that justice requires such victims to be vindicated? Focusing on justice’s non-punitive dimension, it means at least to give the victims the dignity of the injured by recognizing their injury and by making plain that what happened to them matters. To ignore such injuries, to leave them unacknowledged, is to hold the victims in contempt. Christians ought not to do that. To vindicate must also mean giving the victims support, including righting wrongs where possible, repairing damage where feasible, and giving assurances to the living that the future will not include a repetition of the past.
You should begin to see that just war is restorative work. They also have, okay, so in Hamas, we have to begin with the fact that Israel faces an organization that is committed to Israel’s non-existence. And in light of that, Israel’s stated goal of destroying Hamas’s ability and ideally will to make violence against Israel is both morally and militarily legitimate. Peace cannot begin until the end of Hamas. There’s a subset here, and that’s that Israel obviously wants to get their hostages back safely, alright. This is going to bring us to the use in Bellow. I’m skipping over quite a bit, so the Q&A should be pregnant. Use in Bellow, the jab, traditionally at least within classical Christian understandings of just war, there are two criteria in the jab: proportionality, which rears its head again, and discrimination.
Darl and I and Eric Patterson, who you heard from yesterday, have been involved in trying to reinsert or insert a third criteria, really the first criteria, into what it means to have justice in war. And you see this in international law, but you see it less in theological discussions of just war. And that’s the requirement of necessity, right? Part of the reason this isn’t there is it’s always been tacit, right, but it matters that we articulate it is our proposal. So I’m going just to jumble them around to put necessity first, alright. So the first requirement of being just in how you fight the war, that’s right to fight, is to be sure that the tactical steps you take are necessary. Necessary for what? To bring about your war aims. So we’ve already stated that Israel’s war aim is the destruction of Hamas, so anything they do in fighting this just word justly needs to be aimed at destroying Hamas, right?
Battlefield actions build one into the other until fights that are one build into battles that are one, that build into campaigns that are one, that build into a war that is one, alright. So everything you do should be geared toward bringing you closer toward this aim because war is so destructive, dead people, broken things, and expended resources need to be accounted for. They have to be justified. Their expenditure needs to be justified. So we should limit actions to what is required. You should see in this a kind of turn to Christian stewardship, right? Is the expending of resources, whether men or materials, in ways that are warranted. Now, these battlefield tactics that are deemed necessary should, to the degree possible, be modified by proportionality and discrimination.
So what is proportionality? And here, I think I’m retreading some of the terrain that Rebecca trod. I think that’s all grammatically correct, I might be wrong. James can correct me later. He thinks it’s right. We’re good to go. Moving on, proportionality now, I think Rebecca pointed out disparagingly that in everyday usage, proportionality tends to mean something like numerical compatibility, force for like force, tit for tat, this kind of thing. Which, and I think she touched on this in light of what Hamas did to Israel, would be ghastly, like if I only use force against like they use force against me, this would involve, you know, murder and rape and everything else. So, on the one hand, that’s obviously not what anybody means to say, but this idea of numerical compatibility also needs to be dismissed.
It doesn’t, the just war tradition doesn’t stress that I can only use that amount of force that you used against me. Proportionality has a different weighing. And that kind of weighing is wrong. It’s wrong because the criteria against which a proportionality claim is made is not what the enemy has done to me, but what I intend to do to my enemy or what I intend to accomplish through the war. So we’ve already established that Israel’s war aim is the destruction of Hamas. So proportionality for Israel would go something like this: take one-half step back. Proportionality, of course, is a weighing, and it’s a weighing of goods versus harms.
Okay, so for Israel here, the weighing of goods versus harms is done in light of destroying Hamas. So you’re weighing the goods versus bad of doing that, and if the goods of destroying Hamas outweigh the bads of destroying Hamas, then you’re proportionate. But you’ve also got to reverse it. You also ask yourself, okay, so that’s one exercise. The second exercise would be, would the goods versus harms of not destroying Hamas be proportionate with the goods outweigh the negatives? And here again, because Israel is in an existential fight with Hamas, ultimately, I think they would come out on favor of suggesting that the goods outweigh the harms, alright. We need to recall that ultimately, the aim of war is peace.
So Israel is aimed at peace through the destruction of Hamas, that’s how all this ties together. So another way of asking the proportionality question is to weigh the goods and harms against the good of achieving peace. Are these necessary actions in war proportionate to the good of peace? And we recall that peace can only be achieved when the causes for war have been overturned, when the innocent are protected again, when justice has finally been vindicated, and when evil has been sufficiently punished. Okay, this brings us to this idea of a decisive victory. A war that is right to fight is right to win.
It’s true that we should only do those things that are necessary and that proportionality does, to some degree, counsel restraint. It might be necessary, for instance, to take out an enemy sniper, but it’s likely both unnecessary and disproportionate to take out the enemy sniper with a tactical nuke, right? So you wouldn’t do that. At the same time, and here I’m channeling Pepperdine’s Bob calman, at the same time, we need to avoid the idea of aiming at just doing that amount of force that’s required, right? He advocates wide margins, like in cancer surgery. If you’re cutting out the tumor, you don’t want to cut out just enough flesh to get the tumor, you want to err on the side of wider margins, right? Because the prospect of having to go in again is worse than the wide margin, okay?
So a decisive victory, the end of World War I, right? Germany was ready to negotiate an armistice, everybody was happy, the fight is over. Well, not everybody was happy. General Pershing, among other people, said, “We must not end now. The enemy does not know they’ve been defeated.” And indeed, we have records of German generals telling their troops in France, “You are surrendering on enemy-occupied land. Go home in triumph.” They march home to a Germany that has never seen war firsthand, right? And that gave rise to the well, “How did we lose this war? It’s never come here. Our army was never defeated in the field.” This gave rise to the stab in the back. The stab in the back gave rise to some of the anti-Semitic tropes that helped lead Hitler to power and on and on and on and on, alright? So General Pershing said, “Give me a week, and I can help the enemy know that they’ve been licked.”
And that licking would not have just been vengeance. That licking would have been a kind of grace because then the enemy would have known that they need to stand down, and we wouldn’t have then just taken a generation to raise up another crop of young men to feed to the cannon fire. Alright, I think you can draw a bright line between the botched piece of Versailles and the mushroom cloud over Hiroshima because the young men who fought World War I were the older men who fought World War II and who said, “No, the enemy is going to know they’ve been licked this time, both Germany and Japan, right? And that will be a grace to them, and the war will be over, right? Because it’s not always just an enemy that needs to be defeated, but certain ideas that need to be killed. That’s important; different wars will, of course, yield different conclusions. England’s war against Argentina, which most of you probably don’t remember, they were fighting over a chunk of rock called the Falkland Islands; that was not an existential fight. They didn’t need to fight that to the nth degree.
My argument is that the fight against Nazi Germany, the fight against militant Japan, and Israel’s fight against Hamas is a different kind of fight. You need a kind of decisive victory that is willing to go to the nth degree; regime type matters. Here, what you should see is a place where the jab and the jib come together. A lot of people will say, “Once you know the fight is right, you can dispense with the jab requirements; you go straight to the jib and you just fight the fight rightly.” Well, these are constantly coming back into conversation with each other. What is the regime type that I’m fighting? What are the causes for which I am fighting? How do they influence the kind of fight I fight? So, they go together, alright?
Hamas represents an idea that has to be killed; the fight has to be taken out of it. This will, of course, involve something more than military force, but it will at least require military force. Just like the end of slavery required much more than the Navy, but it certainly required the Navy, right? Very quickly, discrimination; what is discrimination? So, this is where we’re going to touch on the killing of innocent people.
Discrimination basically says advocates only the direct and intentional targeting of combatants. The direct and intentional targeting of non-combatants is prohibited. Now, here we have a caveat: the foreseen but unintended killing of non-combatants, though always tragic, is not necessarily unlawful. So long as it is passed through a necessity test, including some consideration of essentiality. Is this tactic absolutely necessary to achieve my ends, and is it imminent? Like, does this have to happen today, or can I give it some time and wait to see if conditions change, and therefore, fewer innocent people might be killed? Alright, intentionality is key.
So, what do I mean by intentionality? Something basic like aligning your will with something, desiring something for its own sake. Right, actively aligning your will with something. So here, you might have heard the term double effect; this is where double effect comes into play. An action can have one or more effects; one of those effects can be intended, others of those effects can be foreseen but unintended. You can take this to some degree to the nth degree, so that, as Paul Ramsey argued, if you shoot an assailant, even if you’re shooting center mass, it might be that your intention is to stop the threat. Now, a foreseen but potentially unintended side effect is the death of the assailant. Alright, Nigel Biggar, a friend of Providence, will sometimes say very provocatively, “Just warriors, including US Marines, do not shoot to kill.” And then every US Marine I know goes, “What?” And they get very excited, right? Don’t tell a Marine he doesn’t shoot to kill.
Okay, double effect, right; discrimination is sometimes defined as not intentionally targeting the innocent. What innocent means is both morally and practically complicated. Hamas enjoys significant support among non-combatant Palestinians; they celebrate the attacks, many of them. They give aid to Hamas, many of them. This doesn’t mean that those non-combatants are now therefore targetable. So, instead of talking about the innocent, or if we talk about the innocent, what we really mean are those who are doing harm. Those who are actively seeking to harm, intending or facilitating harms, alright?
In closing before a Q&A, some of the questions that have cropped up in this recent fight between Hamas and Israel. Questions like, can you fight a just war when the enemy refuses to? Right, do you need two sides, both sides fighting a just war in order for you to be able to fight justly? Hamas has sown into its war-making apparatus or has sown its war-making apparatus into civilian communities, right? That’s their tactic. They store munitions in churches, mosques, schools; they fire rockets from beside hospitals, sometimes at hospitals, it turns out. They commandeer homes and fire from them, these sorts of things. It’s really difficult to protect Palestinian children, to be discriminate when your enemy shields themselves with those children. And here I am using “shield” somewhat euphemistically; I know Rebecca touched on this. Palestinians don’t use, or Hamas, sorry, Hamas doesn’t use innocent people as shields. They use them as something more like press kits or like product placements. They mean for them to die, right? Because the one war that Hamas has any chance of really winning is the propaganda one, right?
We have a weird situation, it’s not a weird situation, it happens often enough in war, in which the innocent in Israel are under direct intended attack by Hamas. And in order to respond to that direct threat against Israeli innocence, Israel now has to put Palestinian innocence at greater risk than it wants because of how Hamas is freely choosing to fight. So Israel, forced to choose between different groups of innocents and being the kind of sovereign that it is, is going to choose its own innocence over Palestinian innocence almost every time when the imminent threat is significant enough, right? That’s how that’s going to happen. And, frankly, goddamn Hamas for that, right? For making Israel have to make those kinds of choices. Alright, the last thing I want to touch on is this bit about sovereignty.
Hamas was elected in 2006, right? We make a big deal out of this; oh, they were duly elected, they were duly elected in 2006. Then they suspended elections, and nobody’s voted ever since, right? So that has to be taken into account. Many adult Palestinians have never voted in their lives. The day after October 7th, a Hamas spokesman was boasting on a TV show that Hamas had made Israel think for the last two years that we were focused internally on investing in the lives of our 2.2 million civilians. And they’re boasting over this. And then he says, “But really, we were planning this attack,” right? So here you’ve got a spokesman for the ruling authority boasting that we were pretending to be competent, wise, caring kings, but we really weren’t. That was a sham; we were really just going to attack them the whole time, right? So they tipped their hand there, but they were giddy over it. They were giddy over the idea of having duped Israel by making Israel believe that they were being responsible political authorities caring for their own people. And so maybe you’ve seen the meme where it involves a baby carriage, where you see an Israeli soldier standing in front of a baby carriage, which is positioned behind him. And you see a Hamas fighter with a baby carriage in front of him, right? So you’ve got one king that shields its people; you’ve got another king that makes a shield of its people, alright? Why am I saying anything about this? We have it on good authority that the sins of the father will weigh on the next generations; the same is true for nations.
Hamas, in abdicating any pretense at being a just ruler, has brought hell to its own people because the consequences, the choices of national leaders will fall on the lead. So when we see the innocent deaths of Palestinians or the deaths of innocent Palestinians, those need to be laid squarely at the feet of Hamas. And again, goddamn them for that. And this might be the only time that a talk at the National Security conference has ever ended with “goddamn it,” but I’m done.
