From: frankmenetrez[at]yahoo.comTo: normangf[at]hotmail.com
Subject: Beyond Chutzpah
Date: Wed, 24 Jan 2007 20:28:52 -0800 (PST)
Dear Professor Finkelstein,
I have just finished reading all of your books, and I want first to thank you for writing them. You write with a combination of analytical precision, passion, erudition, and dedication to the truth that I find extremely uncommon, particularly in writing on Israel/Palestine. For anyone who is interested in the facts about the Middle East and in a just resolution of the conflict, your work is indispensable.
I am writing to offer comments on two issues in Beyond Chutzpah. The first is the plagiarism issue. I believe that certain common practices in legal academic writing, of which you might not be aware, might explain why Dershowitz’s colleagues at Harvard seem to have been so unimpressed by your charges.
Most legal academic writing is published in journals that are run and edited by students, and it is a standard part of the job of the journals’ staff to “cite-check” all of the articles they publish. In theory, that means only that the staff check all of the author’s citations for both proper form and substantive accuracy (which includes, of course, checking them against any original sources that are cited). In practice, however, journals are often called upon to do considerably more. I was the editor-in-chief of a highly ranked law journal. I can remember instances in which we checked an author’s citation and found that it did not support the relevant proposition in the text, and the author, when informed of the problem, just instructed us to find a source that did support what he was saying, which we did. I have no reason to believe that the author ever looked at the source we supplied.
I actually know, through a friend, of a much more egregious example: An extremely eminent law professor published (in a more highly ranked law journal than mine) an article that, when it was submitted to the journal, had no footnotes at all. The journal assigned a team of students to round up authorities to cite for everything the author said, and the article was eventually published, fully footnoted. The faculty “author” was so pleased with the final result that he ended up republishing the piece (which was quite long) as a monograph, through a prestigious university press.
These practices are not ubiquitous, of course. Sometimes law professors do all of their own research, sometimes they do none, and sometimes they do some. Also, these practices are not limited to legal academic writing in law journals. When a law professor wants to write a book rather than an article, the professor’s research assistants will ordinarily play the role, small or large, that a law journal’s staff would have played in the case of an article. Some of Dershowitz’s more ludicrous citations (the editorial in the Orlando Sentinel; the high school syllabus) were almost certainly supplied by research assistants who trolled the internet for something, anything, to cite as “authority” for what Dershowitz was saying. They just needed to find something or other to put in those footnotes.
The bottom line is that a significant amount of legal academic writing is not scholarship in any sense that a serious historian like yourself would recognize. It is analysis, pontificating, or polemics–depending on your point of view–”supported” by “authorities” that have been sprinkled in by student assistants, and which may never have been consulted by the faculty “author.”
There is also the further issue of Dershowitz’s “lifting” of sources from Peters without crediting her for having found and collected them in the first place. Although you and Jon Wiener present a reasonable argument that this constitutes plagiarism under Harvard’s official definition, I think conduct of this kind is probably not always considered improper. A law professor might, for example, use a legal treatise to find a large collection of cases (and possibly even citations to secondary literature) on a particular legal issue. Having found the cases and secondary literature in this way, the professor can then read them, write up her own analysis of the issue, and publish it. I think you would have trouble finding a single legal scholar who would think it improper for the professor to cite the cases and secondary literature directly, without mentioning the treatise. To take another example, I first learned of the existence and relevance of the memoirs of U Thant and Odd Bull by reading your Image and Reality. If I go on to read those memoirs and later write something about Israel/Palestine that cites them, must I, as a matter of academic integrity, cite your book as the first place I learned of them? Again, I doubt that many, if any, legal scholars would say that such a citation is required.
I do not mean to suggest that Dershowitz’s conduct is as benign as either of these examples. My point is only that there is a broad range of conduct of this kind, and the line between proper and improper conduct is not immediately obvious.
The most important issue in Beyond Chutzpah, as you have repeatedly pointed out, is Israel’s appalling human rights record, and Dershowitz’s disgusting whitewash of that record. Apart from that, and apart from the general scandal of the debased norms that prevail in legal academic writing (which is a scandal not limited to Dershowitz), the real scandal is that Dershowitz relied heavily upon Peters, given that her book is internationally and uncontroversially regarded as a fraud. It’s not that he cited her improperly–which he disputes–but that he relied on her at all–which he admits. But the incorrect quotations and citations (e.g., missing ellipses, or citation to the wrong edition of Twain) are not going to bother Dershowitz’s Harvard colleagues. That’s stuff that the cite checkers are supposed to catch and sort out; an august faculty author like Dershowitz needn’t be bothered.
One last observation on this issue: The letter from Dershowitz’s research assistants to The Nation is actually very comical, if you read it carefully. The letter purports to tell us what the “standard operating procedure” was for Dershowitz’s RAs. Standard operating procedures are all well and good, but they are not followed in every instance. The relevant question is: What procedure was in fact followed concerning The Case for Israel? Billington et al. don’t say. (The importance of this distinction, between standard procedure and the procedure actually followed in a particular case, is well known to any experienced litigator. Dershowitz, who presumably drafted or at least vetted his RAs’ letter to The Nation, is undoubtedly familiar with it.) And even the description of the “standard operating procedure” is laughable. It required the RAs to “check out or request the original sources” from the library. That means that as long as they requested the sources, they complied with the procedure, even if they never received them! With “standard operating procedures” like that, it is no wonder that Dershowitz’s book is riddled with the errors you exposed.
The second issue concerns a minor point. When addressing Dershowitz’s argument that Israeli killings of civilians are not as bad as Palestinian ones because the Israelis don’t kill civilians intentionally, you quote with approval B’Tselem’s statement that “the lack of intent makes no difference. Israel remains responsible.” (Beyond Chutzpah, p. 100) This response strikes me as very weak, and unnecessarily so, for several reasons. First, I am not sure whether B’Tselem meant to be making a legal point or a moral one. If their point is not about the relative moral wrongfulness of Israeli and Palestinian killings of civilians, then I think it is irrelevant to Dershowitz’s argument, which seems pretty clearly concerned with morality.
Second, if B’Tselem’s point is about morality, then it is just wrong. I have not read Dershowitz’s book (and do not plan to), but I assume that not even he claims that Israel is not responsible for the foreseeable civilian deaths that Israel’s intentional conduct causes. His point, I assume, is that although Israel is responsible for causing those deaths, Israel’s conduct is still not as bad, morally speaking, as it would have been if Israel had intended to cause those deaths. The idea is that conduct can be morally permissible even if it has certain very bad consequences, as long as those consequence are merely foreseen but unintended. The abstract principle underlying this argument, which moral philosophers call the “doctrine of double effect,” is pretty uncontroversial among ethicists and accords with common sense beliefs about right and wrong, and I cannot believe that B’Tselem would really, upon serious reflection, want to reject it.
A few examples will illustrate the doctrine and, I hope, its soundness. Subject to the proportionality principle, it may be permissible to bomb a military base even if one knows that the bombing will cause some destruction and consequent loss of innocent civilian life at a neighboring elementary school. But it is not, of course, permissible to bomb the elementary school directly, even if one does so in such a way as to cause no more innocent deaths than would foreseeably have been caused by the attack on the military target. That’s double effect: You cannot intentionally attack those children, but you can (subject to proportionality and perhaps other constraints) intentionally attack the military base even if the attack will foreseeably cause the same number of those children to die. Intent does make a difference.
A much more forceful response than B’Tselem’s to Dershowitz’s argument is that Israel is in fact targeting innocent civilians, so they cannot plead double effect at all. A simple modification of the previous examples illustrates the point: Suppose that an active-duty soldier happens to be at the school (perhaps picking up his child). You cannot then bomb the school and claim that you were targeting only the soldier, and that the deaths of the children thus were merely foreseen but not intended. Of course you killed the children intentionally. You were targeting the children just as much as you were targeting the soldier, by bombing the school in which you knew they were all present. This example parallels, of course, the case of Salah Shehadeh and who-knows-how-many other of Israel’s “targeted killings” that just happened to kill scores of nearby innocents.
I realize that you have made a related point when you have argued that if Hamas blew up a bus and claimed that it was only targeting an Israeli soldier on board, no one would take it seriously–everyone would just laugh. But the most important point is not that such statements of “innocent” intentions are usually in bad faith. The crucial point is that if you intentionally kill someone by blowing up the house/apartment/bus in which he is present, then you equally intentionally kill everyone else you know to be present in that house/apartment/bus. It is a direct, intentional attack on everyone inside. Double effect never enters the picture.
One last example: Imagine, if it’s possible, a Palestinian millitant leader spending the night at the apartment of a left-wing, Jewish Israeli friend, in Israel. If the IDF bombed the apartment building, killing the dozen or so Jewish Israelis who were sleeping inside, and then argued that it was only targeting the Palestinian leader, no Israeli would take them seriously. Everyone would see those deaths for what they are, namely, the cold-blooded murder of innnocent civilians. The very inconceivability of this kind of conduct from the IDF speaks volumes about the Shehadeh case and others. To the IDF, Israeli civilians count, and Palestinian civilians don’t.
Sorry to have gone on at such length. I hope I have not been belaboring the obvious, and I hope you will take these comments in the constructive spirit in which they are intended. And thank you again for your invaluable work.
Best regards,
Frank J. Menetrez
P.S. If you would like to post any part of this message on your web site, please feel free.
Reader letters
Dershowitz will of course argue that virtually all IDF operations comply with the DDE. It is desire that differentiates the foreseen from the intended, and desire is difficult to prove without an outright admission. The U.S.legal system says that if a consequence is inevitable, then the perpitrator likely desired it, but Dersh can always argue that a different standard applies to the killing of a smoking gun terrorist who is bent on mass murder. He basically converts the DDE from an “AND” test to an “OR” test “We knew that the killing of innocent civilians was inevitable but we can point to proportionality as evidence that we really didn’t desire it.” Given the relatively small threat posed by the Qassams, recent IDF “collateral” damage in Gaza hardly meets the test of proportionality; however, the dropping of cluster bombs in Lebanon (see article in today’s NYT) is a much more useful example because it speaks to both proportionality AND intent, forcing Dersh to argue that everyone in Southern Lebanon is a combatant.
Mr. Menetrez,
I found your comments to Norman Finkelstein very interesting. However,on the issue of the doctrine of double effect, I did find it difficult to see the difference between the doctrine’s accepted conclusion (that an act with foreseen wrongful consequences is still permissible so longas such harms were not intended) and your example of rephrasing the issue by suggesting that targeting a militant in a civilian area somehowconstituted intent to harm civilians. How is it that you’ve established intent, as opposed to foreseen harmful consequence, in that case?
Nevertheless, your last argument about the hypothetical example of a Palestinian militant among Israeli Jews is sufficient to making the point. I’ve enjoyed reading your comments.
Sincerely,
Omar
From: timbirdmm[at]hotmail.com
To: normangf[at]hotmail.com
Subject: Menetrez, ethics, and the IDF.
Date: Wed, 31 Jan 2007 19:26:27 +0000
Dear Norman,
I read the Frank J. Menetrez letter published on your website with interest, particularly his observations on the moral status of Israeli attacks on civilian targets.
First of all, however, I have some doubts over whether his strict distinction between “double effect” and “direct, intentional” consequences is tenable. He posits two hypothetical examples, one an attack on a military base situated next to a school, resulting in “foreseen but unintended” consequences, the other an attack on a school at which an individual soldier is known to be collecting his child.
Some obvious objections spring to mind immediately: does the morality of the bombing of the school change if it is a case of more than one soldier collecting his or her children? What about 5? 10? 20? 100? According to Menetrez’s paradigm, the morality of the attack would seem to be unchanging.
This sort of absolute approach is hard to square with anyone’s general moral instincts. Imagine, for instance, that 10 soldiers were visiting the school to pick up their children; the school is bombed, killing them and, say, another 30 civilians. Compare this with a base manned, for the purposes of this example, by a small skeleton staff of 10. The base is bombed, causing 30 civilian casualties at the neighbouring base – a consequence predicted by the military commanders overseeing the bombing. Is there really much of a moral distinction? I would argue that, quibbling aside, there is none. Indeed, how can there be? In both cases the commanders are attacking (or claiming to be attacking) military personnel with the anticipated consequence of exacting a heavy civilian death toll. The exact spatial position of the soldiers and civilians is incidental, and therefore surely irrelevant.
The question is surely one of the seriousness with which one takes civilian loss of life – one which Menetrez of course deals with in his hypothetical example putting Israeli civilians in the place of Palestinians, correctly concluding that “to the IDF, Israeli civilians count, and Palestinian civilians don’t.”
A different objection, of course, might be raised on purely factual grounds: namely, is it true that the IDF does not deliberately target civilians? Some concrete examples certainly spring to mind. In 2004, for instance, a Christian Aid delegation was fired on by Israeli soldiers in the Gaza strip. Sarah Malian, Christian Aid’s communications officer for the Middle East, was cited as saying, “I can’t believe they fired at us. We were clearly civilians. We were surrounded by children at the time.” The news item also reports that “a group of British MPs and peers also came under fire in the same place” two days later.
http://www.christian-aid.org.uk/news/stories/040625.htm
The context of this event, and others like it, was revealed by IDF soldiers in September 2005, part of the pressure group Breaking The Silence, who told the Guardian of orders to “fire at anything that moved”. They also spoke of “pressure to get kills”, and reported that “The commanders said kill as many people as possible”. One noted that “Gaza was considered a playground for sharpshooters.” Another summarised his orders thus: “”Every person you see on the street, kill him.” And we would just do it”.
http://www.guardian.co.uk/international/story/0,,1563255,00.html
In the face of evidence like this, the objection that Israeli soldiers do not deliberately target civilians is simply not credible.
Regards,
Tim Holmes P.S. Please feel free to publish any of this email.
Menetrez replies to (friendly) critics
02.17.2007
One issue raised by the reader letters is: How can I claim that intent to kill civilians is present in my third example (bombing the school because the soldier is there) but not in my first (bombing the military base) given that (1) in each case the attacker knows that the children will be killed, but (2) in each case the attacker’s ultimate purpose is not to kill the children, but rather to take out a military target (i.e., the soldier, or the base)?
My answer, which may or may not be satisfying, begins with the following premise: One always intends not only one’s ultimate purpose but also one’s chosen means for achieving that purpose. In the third example, the chosen means is a direct attack on the school in which the children are known to be present. That constitutes a direct attack on the children, because the means of attack does not distinguish between the soldier and the children. And it is an intentional attack on the children because the attacker always intends his chosen means. In effect, he has chosen to attack the soldier by attacking the children as well. None of that applies to the first example, in which he is attacking the military base.
Moreover, the difference between attacking the school, on the one hand, and attacking the base but foreseeing some damage to the school, on the other, is not merely a matter of “rephrasing” the example. It is a real world difference in the attacker’s intentional conduct. When he is attacking only the base, he targets his bombs, artillery shells, etc. only on the base. The foreseeable damage to the school arises from the fact that he knows his bombs and shells are not 100 percent accurate, and that even for the ones that do hit their intended target, he cannot precisely contain the damage they will do. If he is really trying to avoid civilian casualties, he will try to bomb the base as precisely and accurately as he can.
But if the attacker is targeting the school, the foreseeable deaths of the children are not the result of unavoidable inaccuracy in the attacker’s weapons. Rather, the attacker has chosen to destroy the building in which he knows the children are present. He cannot avoid or mitigate the risk to the children by improving the accuracy of his weapons or his use of them. On the contrary, the more accurate and effective his weapons are, the more likely it is that the building will be destroyed, and the more likely it is that the children will die.
There are, of course, any number of variations on all of these examples. The details matter, and there are surely borderline cases. But choosing to destroy the school containing the children is not a borderline case. To take another example, if one attacks the base by dropping a nuclear bomb on it, and one knows that the nuclear explosion will obliterate everything within a certain radius that includes the school, then that would constitute an intentional attack on the school. Thus, if Hiroshima had contained a single military target (a single building that served as a military barracks, for example), and if the nuclear bomb had in some sense been aimed only at that building, the bombing would still have constituted an intentional attack on the city’s civilian population.
I don’t know whether any readers will find any of this persuasive, but I hope it at least clarifies how I had conceived of the examples I used. And I’m sorry if the concerns that prompted some of the reader letters were caused by my own failure to have described the examples in more detail.
My third example (bombing the school because one soldier is there) was meant both to parallel the Shehadeh case and to sidestep the first question Tim Holmes raises, namely, “What if there were more soldiers at the school?” This kind of objection always comes up as a challenge to any purportedly absolute moral prohibition, like the prohibition on torture or on intentionally killing innocent people. “What if you could save 100 innocent lives by killing/torturing one innocent? What about 1,000? 1,000,000? . . .” Personally, I am inclined to believe the absolute prohibition is correct, but I realize that opinions differ widely. I deliberately sidestepped this issue because, as far as I can tell, it does not undermine my point that intent does matter. Even assuming that the prohibition on intentionally killing innocent civilians is not absolute, the prohibition can be overcome only if the numbers are sufficiently skewed. In contrast, for an attack on a military target to be legitimate, it merely must satisfy the proportionality contraint, i.e., the foreseen military gains of the attack must be proportionate to the foreseen harm to civilians. One does not need to foresee overwhleming military benefits in order to justify an otherwise legitimate military attack that poses some risk of harm to civilians. But only overwhelming benefits could justify intentional targeting of civilians (assuming the prohibition is not absolute). So intent does matter.
As for Holmes’s own examples (targeting the school when 10 soldiers are there vs. targeting the base when 10 soldiers are there, with 30 children killed in each case), I respectfully disagree with his analysis for the reasons I’ve already explained. According to Holmes, “In both cases the commanders are attacking (or claiming to be attacking) military personnel with the anticipated consequence of exacting a heavy civilian death toll.” But this characterization is importantly misleading, in my view, because it omits the fact that when the commanders target the school, they are attacking the children by targeting for destruction the building in which the children are know to be present. I thus cannot accept Holmes’s conclusion, that “The exact spatial position of the soldiers and civilians is incidental, and therefore surely irrelevant.” There is an enormous moral difference between a stray shell that is targeted at a military base but accidentally lands on a school, on the one hand, and a shell that is targeted at the school, on the other. It makes no difference to the dead children, of course, and in either case their deaths are tragic. But it surely makes a profound difference in the moral appraisal of the attacker’s conduct.
That said, I certainly agree with Holmes’s point that there is plenty of evidence that the IDF has targeted civilians without even a hint of a military justification (without a single soldier at the school, so to speak). My point was that even in cases like the Shehadeh assassination, the IDF’s claim that the civilians were not killed intentionally is false. The chosen means, not just the ultimate purpose, is always intended. Because the IDF’s chosen means to get Shehadeh was to obliterate the home in which Shehadeh’s entire family was sleeping, the IDF intentionally killed Shehadeh’s family.
Finally, I agree that “Dershowitz will of course argue that virtually all IDF operations comply with the [doctrine of double effect]” on the grounds that “It is desire that differentiates the foreseen from the intended.” What I was trying to show was that Dershowitz’s argument is a morally barbarous distortion of the doctrine of double effect, because “desire” (i.e., the attacker’s ultimate purpose) is not always what differentiates the foreseen from the intended. Again, the chosen means, not just the ultimate purpose, is always intended. If the chosen means does not distinguish between military and civilian targets, then the attacker is targeting civilians and those civilians are being intentionally attacked, period. Their deaths are not merely foreseen–they are intentional.
Look at it this way: Suppose we knew absolutely for certain that the sole purpose of the 9/11 attack on the World Trade Center was to kill the American military and government personnel who were inside the towers. Would anyone conclude that the attack was therefore not an intentional attack on everyone inside? Of course not. If the hijackers chose to go after some of the people inside by bringing down the towers, then they chose to attack all of the people inside. All of those resulting deaths are intentional, regardless of whether the hijackers’ ultimate purpose (or “desire”) included those deaths.
For any readers interested in learning more about what moral philosophers have to say about the doctrine of double effect, I can make a few recommendations. Warren Quinn has an excellent paper called “Actions, Intentions, and Consequences: The Doctrine of Double Effect,” which is reprinted in his collection “Morality and Action.” Also, G.E.M. Anscombe has several papers on morality and war (”War and Murder,” “The Justice of the Present War Examined,” and “Mr. Truman’s Degree”) that touch on issues of double effect. They are reprinted in volume III of her collected papers (the volume is entitled “Ethics, Religion, and Politics”). Anscombe’s papers are excellent, I think, but her writing is often opaque, making her arguments sometimes extremely difficult to follow. The Quinn piece is much more accessible. Any university library ought to have both of these volumes.
Follow-up replies
02.22.2007
I think the disagreement between Menetrez and myself centres partly on the difference between the “real world” and the examples contrived here for the purpose of illustrating moral principles. The idea that IDF commanders can fully and accurately foresee which missiles, and how many, will go astray in the targeting of a particular military base is, of course, not tenable in the real world; nonetheless, if we allow in the hypothetical example that the consequences of the bombing can be, and are, fully foreseen as we have, the example stands.
One further example Menetrez uses – the dropping of a nuclear bomb on the military base – may be used as an effective illustration. We can imagine, for example, the bombing of the same base with progressively lower-yield bombs, until we have a situation in which the blast radius encompasses, say, the entire base and half the school. Compare this with a situation in which bombers using conventional weapons have, for logistical reasons, to attack from the north, with the school to the south of the base, with the consequent bombing patterns resulting in a high level of “collateral damge”, to coin an ugly phrase, in the school – a consequence the commanders fully predict. Again, quibbling aside there is surely very little, if any, moral distinction that can reasonably be made between the two cases. Menetrez objects that, if the base is the target, the commander may make his weapons more accurate, and aim them with a view to avoiding civilian casualties. Maybe so, but in that instance he will then be “foreseeing” a different number of casualties to before, based on the changes he makes. Thus we will be dealing with an entirely different situation, and an unequal comparison. The question, however, remains whether, all else being equal (including numbers of civilians and military killed), there is a serious moral distinction between the two acts (deliberate attack on the school and deliberate attack on the base with inevitable civilian casualties). I maintain that there is not.
In the hypothetical World Trade Centre case Menetrez constructs, describing the resultant killing of civilians as “foreseen but unintended” would be, to my mind, a lot more accurate than considering them “intended” – Menetrez here seems to be making the mistake of conflating the intended consequences of the means of killing (killing the officials/military personnel) with the foreseen but unintended ones (mass killing of civilians). If the hijackers’ aim was indeed to kill military/governmental personnel only, it would have made no difference to them or their plans if every one of the civilians in the towers had access to a hang-glider or jet-pack which had allowed them to make their escape (though they of course knew they probably wouldn’t); whereas if their aim was to kill every civilian in the towers, it most certainly would. In the proposed example, the hijackers are not exactly intending to kill these civilians, they simply foresee that this will be the resultant consequence of their actions, and are indifferent to their deaths – as indifferent as the IDF commander killing children as a consequence of his attack on a neighbouring military base.
I agree that every attacker intends her means – but in the case of the hypothetical attacks the school and the base, “means” in both cases equals a course of action expected to exact a heavy civilian death toll. If the neighbouring base, for example, had to be completely obliterated, with such a heavy bombardment that 70% of the school would inevitably be taken with it (and the IDF commanders knew it), the moral distinction between that course of action and an attack on the school itself – perhaps one deliberately destroying the front 70% where the soldiers were known to be entering – would again be miniscule, if we could find any meaningful distinction at all. Again, with all due respect to Mr Menetrez, and having yet to investigate the moral philosophers he cites, the “intended”/”foreseen but unintended” distinction just does not seem to hold any water.
Nonetheless, as we both seem to agree, the level and nature of Israeli violence against the Palestinians is unjustifiable by any reasonable moral system. It is this, perhaps, which needs to be stressed more than anything else.
Tim Holmes
02.20.2007
From: kenthogshire[at]hotmail.com
To: normangf[at]hotmail.com
Subject: RE: Amended Response to Menetrez
Date: Tue, 20 Feb 2007 02:40:03 +0000
While Menetrez’s focus on “chosen means” is incremental to the discussion of IDF intent, those tasked with justifying IDF collateral damage are ready to respond to it.
When painted into a corner, Dershowitz can’t defend the systemic killings of Palestinian civilians using accepted standards of what constitutes unintentional behavior.
Instead, he uses proportionality to argue against intent. (”It’s a shame that this Palestinian schoolgirl died, but hundreds of Israeili schoolchildren were saved……..We had no choice.”).
Herein lies the distortion of the Doctrine of Double Effect, which is an “AND” test, not an “Or” test.
The difference is essential, because an “Or” test has little meaning as a standard of just war conduct and could be used to justify all sorts of atrocities.
-Kent
Frank Menetrez’ final reply
03.02.2007
From: “Frank J. Menetrez” frankmenetrez[at]yahoo.com
Subject: response to most recent reader letters
Date: Thu, 1 Mar 2007 14:43:23 -0800 (PST)
Norm, below is my final response to your readers concerning Dershowitz, double effect, and all that. I don’t know whether it will be of interest to anyone other than Tim Holmes and Kent Hogshire, but I thought I had a few points worth making, so here they are:
In response to the second round of reader letters, I’d like to make just a few observations about the overall course of the discussion.
My original response to Dershowitz’s argument concerning civilian casualties had two steps. The first step was that Dershowitz is right, and B’Tselem is wrong, about the abstract principle that intent makes a difference. The second step was that Dershowitz’s argument still fails, because his application of the principle is wrong–the IDF does intend the deaths of civilians in cases like the Shehadeh assasination. One can disagree about the first step of my response, or the second, or both. Tim Holmes, for example, appears to disagree about both.
The initial point I want to make here is that if I’m wrong about the first step, then Dershowitz’s argument is still no good, because B’Tselem is right–intent makes no difference.
The next point I want to make is that all of my hypothetical examples (bombing a military base that’s next to a school, etc.) presuppose that (1) there is such a thing as a just war, and (2) the attacker is, with the possible exception of this particular attack, fighting a just war. I mention this only because Israel is patently not fighting a just war in the occupied territories, for reasons too numerous to list here. Consequently, all of the death and injury and suffering that Israel is inflicting in the occupied territories is immoral. In that sense, I certainly agree with B’Tselem that Israeli intent makes no difference.
Finally, I’d like to make just a few observations about each step of my original response. As regards the first step, the principle that intent makes a difference does seem to me to be pretty pervasive in common sense moral thinking. For example, it’s reasonably uncontroversial that collective punishment, like punishing a criminal’s entire family, is not OK. It’s also reasonably uncontroversial that punishing an individual criminal is OK, even if the criminal is the breadwinner for a family. But if the criminal is the family’s breadwinner, then punishing the criminal will have obviously foreseeable harmful effects for the innocent family members. So why is individual punishment OK, but collective punishment not OK? It seems to me the most obvious answer is that with individual punishment, the harm to the family is merely foreseen but not intended, whereas with collective punishment the harm to the family is intended. (This point is discussed in connection with house demolitions in Beyond Chutzpah, p. 174.) But I realize there are plenty of other potential answers, including the possibility that individual punishment of a criminal who’s a breadwinner really isn’t OK.
As regards my claim that the IDF does intend the deaths of innocent civilians in cases like the Shehadeh assasination, it seems to me that the bottom line is something like the following: Can the IDF intelligibly say, for example, “We didn’t intend to kill Shehadeh’s wife; we just intended to flatten the building in which we knew she was sleeping”? I say No. Intending to flatten the building in which the Israelis knew she was sleeping constitutes intending to kill her, so it doesn’t matter whether, in the Israelis’ heart of hearts, their only ultimate goal was to kill Shehadeh. But my answer is different with, for example, the hypothetical attack on the military base: The attacker can intelligibly say “We didn’t intend to hit the school or kill any children; we just intended to destroy the base. But given what we knew about the accuracy of our weapons, and given how many shells we needed to fire to destroy the base, we expected that the school would be hit and the children would be killed.” The civilian deaths at the school are thus, in my view, foreseen but unintended, and the lack of intent makes a moral difference. But, again, I realize that opinions can vary.
For a reasonably good overview of the doctrine of double effect, including discussion of some philosophers’ skepticism concerning the doctrine, interested readers might want to take a look at the relevant entry in Stanford’s online encyclopedia of philosophy, http://plato.stanford.edu/entries/double-effect/.
