The Duty to Protect in the Israel-Gaza Conflict
There has been a glut of editorials, blog posts, social media posts, open letters, and other commentary in which it is declared that the Israeli government has a special duty to protect its citizens. Such a duty, it is supposed, allows the Israeli government to weigh the lives of Israelis more heavily than the lives of Palestinians. This conceit, in turn, helps rationalize the bombing campaign in Gaza. What this view fails to recognize is that the Israeli government also has a special duty to protect Palestinians, which competes with the special duty it has to protect Israelis.
Before explaining why, it’s necessary to say a bit about the nature of the “special duty” that the Israeli government has toward its citizens. We all have limited and defeasible Samaritan duties of aid toward one another. Such duties are cosmopolitan in that they apply regardless of the ethnicity, nationality, gender, etc., of the person in need of aid. But a government is typically thought to have duties over and above those. In particular, a government is thought to have special duties to protect its own citizens specifically. These duties are “special” in that a) they are of much greater strength than our Samaritan duties, and b) they are non-cosmopolitan in that they apply solely to members of a certain group rather than to everyone. But how far can a government go in protecting its citizens? What do its special duties permit? There are at least two possibilities.
[...] the Israeli government also has a special duty to protect Palestinians, which competes with the special duty it has to protect Israelis.
According to the restrictive interpretation, the special duty requires a government to weigh its citizens’ interests more heavily when deciding whom to rescue. That is, the restrictive interpretation allows a government to put a thumb – or an elbow – on the scales when deciding whom to save. So, for example, suppose a government can rescue either one of its own citizens, or three foreign nationals. (Suppose they are all innocent civilians). The special duty might require the government to rescue the one rather than the three, even though that is the worse outcome impartially considered.
According to the permissive interpretation, the special duty requires a government to weigh its citizens’ interests more heavily not only when deciding whom to rescue but also in deciding whether to kill. Suppose a government can save three of its own citizens but only by killing one of its own citizens. Presumably this would be wrong. But now change the example so that the one it would have to kill is a foreign national. The permissive interpretation would allow this. The restrictive interpretation would not.
I find the permissive interpretation of the special duty implausible, though I won’t go into why here. But even if we assume the permissive interpretation is correct – which is what I’ll do in the remainder of this essay – it still turns out that Israel is not permitted to weigh the lives of Israelis more heavily than the lives of Palestinians. This is because Israel has a special duty not just to Israelis but also to Palestinians in Gaza and in the West Bank.
Why? Start with the West Bank, which has been under Israeli military occupation since 1967, following the Six-Day War. The Oslo Accords in the mid-1990s ceded to the Palestinian Authority (PA) nominal control of a small portion of the West Bank. These 165 fragmented “islands” containing 90% of the Palestinian population are surrounded by a spatially contiguous “ocean” which comprises 60% of the West Bank where the PA is forbidden entry. In 2000, Israel reasserted a right to enter the areas ostensibly under the PA’s control, according to Israeli “operational needs”. The result is that Israel exerts de facto control over the West Bank, including areas nominally under the PA’s jurisdiction. The International Court of Justice has affirmed the status of the West Bank as a militarily occupied territory; the Israeli Supreme Court has done so as well (excluding East Jerusalem).
Israel is not permitted to weigh the lives of Israelis more heavily than the lives of Palestinians. This is because Israel has a special duty not just to Israelis but also to Palestinians in Gaza and in the West Bank.
When a military force occupies a territory, it is morally obligated to provide at least minimal protection for the civilian population. This is because an occupying military force is the de facto political authority in the region it occupies. And a political authority has a presumptive obligation to provide minimal protection for its population. (See here for further discussion).
This point is not new. For example, Asa Kasher and Amos Yadlin write: “Belligerent occupation of the territory replaces the sovereign power of the territory by the military commander of the force that controls it, for as long as the occupation lasts. Sovereignty, even if temporary, involves duties of the authorities, including protection of human life and well-being of persons, in particular when they are not in any way involved in terror.” The result is that Israel, as an occupying power, has a special duty toward the Palestinians in the West Bank.
One might raise the following counterargument. Most Palestinians in the West Bank do not recognize Israel as a legitimate political authority. As a result, Israel lacks a special duty toward them – or so it might be argued. But the legitimacy of an occupation might not be relevant to the obligation that the occupiers have to protect the people. Though a political authority must have the political recognition of the people in order to permissibly exercise the privileges of authority, it can nonetheless be saddled with some of the obligations of authority – including obligations to protect the people – without political recognition from the people.
Still, one might raise a related worry. Even if Israel has a special duty to Palestinians, that duty must be weak, because the authority it exercises is merely de facto – or so it might be argued. But if this view were correct then dictatorships would be morally permitted to provide fewer protective services to its people, on the grounds that such regimes lack political legitimacy. The dictatorship could then justifiably claim that it does no wrong by failing to act according to the obligations it would have if it were a legitimate political authority. But this gets things backwards. The fact that an authority is illegitimate cannot serve as a justification for neglecting the welfare of its people. This suggests that an authority’s illegitimacy does not affect the strength of its special duty to provide basic protection to its people.
We must conclude, then, that the Israeli government has a special duty toward not only Israelis but also toward Palestinians in the occupied West Bank. So, even if the permissive interpretation of the “special duty” is correct, the Israeli government still cannot weigh the lives of Israelis more heavily than the lives of Palestinians.
Though a political authority must have the political recognition of the people in order to permissibly exercise the privileges of authority, it can nonetheless be saddled with some of the obligations of authority – including obligations to protect the people – without political recognition from the people.
What of Gaza? After all, that is where the current conflagration is occurring. Unlike the West Bank, the Gaza Strip is not under military occupation, which formally ended in 2005. Since then, Israel has possessed no operational control or authority over any areas or institutions inside the Gaza Strip. But a 2006 special session of the United Nations Human Rights Council stated that Israel is an occupying power of the Gaza Strip since Israel controls Gaza’s airspace and territorial waters, as well as the movement of people and goods in and out of Gaza. The Council wrote that “Israel continues to be responsible for the basic welfare of the Palestinian population in Gaza.” In response to the 2008-2009 conflict in Gaza, the United Nations Special Rapporteur wrote that international humanitarian law applies to Israel “in regard to the obligations of an Occupying Power.” And as recently as 2012, a UN Secretary General spokesperson stated that under the Security Council and the General Assembly resolutions, the UN still regards Gaza as part of Occupied Palestinian Territory.
These claims, however, are contestable. After all, Gaza has a government of its own – Hamas. And though Hamas rules illegitimately (since it has not held elections since 2006) it nonetheless exercises operational control within the Gaza Strip, which Israel, meanwhile, does not. Rather than contest this point, let’s grant for the sake of argument that Israel is correct in maintaining that it is not an occupying power of the Gaza Strip. Israel therefore lacks some of the obligations towards the Palestinians there that they have toward those in the West Bank; specifically, Hamas – not Israel – has a governance-based obligation to protect Gazans.
Israel [...] owes Gazans substantial compensation [...]. As a result, Israel has a special duty toward Gazan civilians which requires weighing their lives more heavily than other foreign nationals when calculating how much harm to inflict upon them for the sake of saving Israelis. The upshot here is that even if Gaza does not count as occupied territory, Israel still has a special duty toward Gazan civilians.
Even if we grant all this, Israel still has special duties toward Gazan civilians that requires giving extra weight to their lives. To see why, an analogy is helpful. Suppose you broke my leg last year in an unjust assault from which I have since recovered. Given the pain and hardship you caused, you rightly owe me much in compensation, which you have so far refused to acknowledge or pay. One day, in an unrelated event, I find myself stuck in the path of a car. Without assistance, it will break one of my legs. You can free me, but this will mean that the car will break your leg instead. Normally, morality does not require sacrificing your leg to save someone else’s leg. But it might do so if you have a special duty toward that person. And that describes the current situation. You have an unpaid compensatory obligation toward me: an obligation to make my life go better. As a result, you might be obligated to save my leg at the cost of yours as a way of discharging that compensatory obligation which you have so far gratuitously refused to pay.
Israel has unjustly immiserated Gazan civilians for decades. Israel thus owes Gazans substantial compensation – something that Israel has not acknowledged, let alone paid. As a result, Israel has a special duty toward Gazan civilians which requires weighing their lives more heavily than other foreign nationals when calculating how much harm to inflict upon them for the sake of saving Israelis. The upshot here is that even if Gaza does not count as occupied territory, Israel still has a special duty toward Gazan civilians. More generally, it is morally more difficult to wage defensive military campaigns against a people to whom you have outstanding compensatory duties. I make this argument here.
I hope to have shown that even if the Israeli government has a special duty to protect its citizens, it still has a special duty to protect Palestinians in the West Bank and in Gaza. Maybe there are other considerations relevant to weighing lives which favor Israeli civilians. Alternatively, maybe there are other considerations relevant to weighing lives which favor Palestinian civilians. The point, though, is that we cannot so blithely claim, as many have done, that Israel’s special duty toward its people justifies sacrificing Palestinians for the sake of Israelis – even if we assume the permissive interpretation of special duties.
Saba Bazargan-Forward works primarily in normative ethics, with a focus on individual accountability for cooperatively committed wrongs. He has recently published a book on that topic, entitled 'Authority, Cooperation, and Accountability'. He also works on war ethics, as well as on a variety of other issues, including: the moral analysis of coercion, the grounds for associative duties, and the morality of benefiting from injustice. His paper ‘Moral Coercion’ was featured in the Philosopher’s Annual Top Ten.
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