The weeks leading up to the one-year anniversary of the October 7th attacks have been marked by an escalation of violence across the Middle East. Iran has recently fired a series of missiles against Israel’s capital and various military sites, and Israel has warned of retaliatory strikes against Iran. The war, sparked by the attacks against Israel by Hamas, waged in Gaza and more recently Lebanon, now threatens to engulf the region.
The pager and walkie-talkie explosions in Lebanon in late September have drawn attention to the vulnerability of networks and infrastructures and highlighted how common-place technology can be weaponized. The Israeli-orchestrated device attacks were themselves a precursor to a series of air strikes aimed at dismantling Hezbollah’s senior leadership. The conflict has now expanded into a ground invasion of Southern Lebanon and ongoing aerial attacks are wreaking havoc on Beirut, leaving hundreds dead and thousands wounded and displaced in what the New York Times has called “a brazen sequence of escalatory moves.” As is so often the case, innocent civilians are caught in the crosshairs.
Analysis of this acceleration of violence has mostly oscillated between two poles of instrumentalism: the strategic utility of Israel’s moves and countermoves, and the legality of the attacks under international law. While both have their place and importance, neither are sufficient for the present moment. Prudential and legal-based analysis has occluded the significance and urgency of grappling with the basic morality of this crisis.
A recent encounter between a member of the press and the Pentagon Press Secretary Major General Pat Ryder is instructive. When asked if, “ethically speaking,” the pager attack in Lebanon fell “within the ethical conduct of a war,” Major General Ryder replied: “I’m not a lawyer.” This rhetorical dodge is indicative of a broader shift in thinking. Ethics has been rendered down, either systematized into a checklist of battlefield permissions or fully sublimated by legal process. Deeper questions, pertaining to not only the means but also the ends of violence, have been pushed aside. So too has the recognition of the sheer catastrophe that is war, and the critical need to conclude it in favor of a just and durable peace. These are matters of politics and law, but also, critically and unavoidably, ethics.
It is crucial to bear in mind the difference between law and ethics and why this difference matters. Law is a schematic for ordering social, political, and ethical parameters. In the context of war, law governs the reach and limits of violence on the international stage. Customary law and bedrock legal principles — the crime of aggression, the rule of discrimination, and so forth — are essential in delineating basic, reciprocally held standards, without which accountability for misconduct would be virtually impossible. Ethical deliberation, by contrast, is without firm structure or form. Ethics understood as a practice is open-ended and deliberative. It is not a problem-solving exercise — the most important ethical questions, including those relating to war and violence, lack definitive answers. What ethics does require is responsibility for actions taken and not taken. The law is subject to interpretation. Ethics is subject to contestation. The former needs institutions, the latter reflexivity, space, and often time.
As military ethicist Desiree Verweij rightly observes, ethics must come before and after the law is in place. In a world characterized by “multiplicity and change” the law must be a living instrument informed by, and responsive to, ethics. Otherwise, it risks becoming petrified in its moral mandate, and, eventually, immoral. Ethical and “critical reflection is needed,” Verweij notes, because “the petrification of norms will eventually lead to unacceptable and unwanted behavior.”
The regulation of anti-personnel landmines offers a historical example. The Ottawa Treaty, prohibiting the production, development, and use of anti-personnel landmines was signed in 1997. Landmines were no more nor less harmful to civilians in the 1990s than in previous decades. What had changed was the ethical landscape. Strengthening norms around human security and the protection of the individual created a window of opportunity for a well-organized campaign to agitate for legal improvement. This is as it should be — moral advancement as an impetus for legal change.
Recall also that compliance with international law is the minimal obligation that parties to a conflict must meet. Parties to an armed conflict should, as much as feasible, go beyond legal requirements to meet their moral duties on the battlefield, particularly when it comes to civilian protection. Legal Scholar Charles Garraway was correct in his observation that, just as morality without law is an aspiration, “the law of war without ethics is an empty shell.” The law at its best instantiates moral principles — it makes tangible our moral demands for fairness and justice. Strip away enough morality and the law collapses, no longer able to hold and sustain its shape on account of its technicity, or instrumentality alone.
We are veering toward this collapse. The unmooring of law from ethics has incentivized and provided cover for the expansion of violence across the Middle East, and foreclosed critical discussion on the questionable utility and ruinous cost of the hostilities. Tens of thousands of innocent people are dead and a true accounting of this moral emergency is needed. Dry legalism alone will not do.
Again, it is not our claim that the law lacks importance; nor that ethics and law cannot co-exist. The relationship between law and ethics is intricate and its exact contours are contested. From the genesis of armed conflict, there has been “an intimate and inseparable relationship” between the two, and striving to morally improve the law is a worthy project. But the law can never be, and must never become, a stand in for moral reasoning. The precise threshold between proportionate and disproportionate attacks matters, as do questions about whether the Convention on Certain Conventional Weapons allows or disallows the booby-trapping of pagers and walkie-talkies. But they cannot only be what matters. Morality is always in excess of the law. The privileging of legal questions of “can” over moral questions of “should” blocks out the forest for the trees, even when the forest is ablaze. It prevents us from recognizing when the collective suffering we are bearing witness to, legally and illegally inflicted, has exceeded what common morality should tolerate. What is needed at this moment is a stepping back — a recognition of the human rights catastrophe impacting a growing number of people across the Middle East and a fair appraisal of the rights and wrongs of it.
An ethical reckoning is overdue, foregrounded by the fundamental question Hannah Arendt knew to ask: what are we doing? And why? Amidst this latest explosion of violence, policymakers must not shy away from the ethical questions: How has this violence impacted the civilian population? Is this harm justifiable through any ethical reasoning? What is ethically owed to the innocent of one’s own side, but also those of the adversary, neighboring countries, and the region? These bounded ethical questions are propped up by broader moral concerns about values: If we chose to permit the treatment of humans as objects, what fundamental values are we enshrining? If we permit the erasure of an entire people, what does this reflect about our willingness to co-exist with others, and how will this transform our society? Are the actions that are unfolding, and are permitted to unfold, likely guiding us toward a more stable or peaceful future?
We are under no illusion as to the difficulties of the present moment, nor of the political complexities involved. But if institutional instruments are to be of value when they are most needed, attention must be paid to what they come to represent in form and content. Just as the law is no silver bullet, ethical deliberation will offer up no checklist of easy answers, no steps to take to “solve” the violence engulfing the region. However, what it may do, and what law by itself cannot do, is to give a clearer sense of the questions that matter and the trade-offs that must be considered when navigating them. If nothing else, ethics forces us to recall that we are bound together, and that mass violence and suffering is a poison injected into the collective bloodstream.
How to slow or reverse the violent trajectory of our times is a question too weighty to even begin to answer here. What should be clear, however, is that little good will come from treating ethics as an afterthought or hindrance in this pursuit. In discussions on violence, suffering, and death, the bigger moral questions of how we wish to live, and how we get to peace must be asked. Ethics must be foregrounded; its centrality affirmed and reaffirmed. Because without it we are lost, doomed to endure an endless spiral of legally systematized violence and counter-violence.