The Lawlessness of Trump’s War in Iran

I think that a lot of people draw a moral distinction between targeting civilians and civilians dying as collateral damage in the course of a war. And I agree that that can be a useful moral distinction. But, if you’re dealing with people who quite clearly do not care about civilian lives, and have tried to remove procedures that would protect civilians, it’s much harder for me to come up with any big moral distinction.

Maybe it’s worth explaining this idea of collateral damage, or this question of whether you’re intentionally killing civilians versus unintentionally but knowingly killing civilians. So, under international law, intentionally targeting civilians is clearly unlawful and a war crime, but it is not unlawful to intentionally target a military objective when you know that there may be civilians or civilian objects that will be harmed, as long as the harm to the civilians and civilian objects is not anticipated to be excessive in relation to the concrete and direct military advantage that’s anticipated, and that’s sometimes called collateral damage.

And there is a really interesting moral question as to whether the two are really all that different, because, in one case, you’re intentionally killing civilians. In other cases, you are intentionally, in a sense, killing civilians—you know that they’re going to die, you’re taking a strike that you know is going to kill them—but you’re not aiming at them. But it’s cold comfort to the people who are killed in that strike. And there have been a lot of those cases where totally innocent civilians just happen to be in the wrong place at the wrong time. For them and their families, it doesn’t make a whole lot of difference that there was a military objective.

But I think the law does draw a distinction, and I think rightly so, because, if we’re intentionally targeting civilians, we’re giving up on the idea of actually trying to advance any of the war aims. The idea of this balancing, that’s built into the law, is that it’s impossible in times of war to completely insulate civilians from the damage that might be done. And so, if we’re targeting a high-enough-value military objective, occasionally it’s going to be necessary to kill civilians in order to do that. One of the things that comes in here, though, is, like, What is the proportionality calculus? And I think this may be what Hegseth is referring to when he says “stupid rules of engagement.”

But I do think there is a moral distinction. I think the law is right to draw a moral distinction.

Right, but forget the law for a second. Many of the people carrying out this war, including the leaders, do not care about civilian casualties and, in fact, are trying to remove the architecture that is meant to protect civilians from dying—at that point, it’s very tough for me to draw a particularly big moral distinction.

Yes, I think that’s right. And I actually think that this gets to something really important, which has been relatively unnoticed in the last year, which is the dismantling of this architecture that has been put in place. Nobody was really paying attention to it because it seems very bureaucratic and uninteresting and unimportant, but then, when war happens, this is the predictable result, right?

And the question then is: Can that be prosecuted as a war crime? And the short answer is probably not, even though I think that it is morally reprehensible. But I think, in cases where you’re making the same mistake over and over again, and predictably making the same mistake over and over again—that is a case where actually the law does require that you take feasible precautions to avoid and minimize incidental loss of civilian life.

What else have you been paying attention to?

Well, the strikes on the water-desalination plants on both sides. We don’t know exactly who’s responsible for these, but apparently there’s an Iranian desalination plant that was destroyed. And then there was also a desalination plant in Bahrain that the Iranians may have struck.

What could be the possible justification for something like that?

I don’t think there is a lawful justification for it. It is not uncommon to want to target objects that are indispensable to survival, because striking them makes the lives of civilians really miserable, but it is clearly unlawful to do so. I haven’t seen any evidence that suggests that the desalination plant in Iran had any military use whatsoever, and, as a civilian object, it should be protected, but it’s also considered an object indispensable to survival, and in that respect is especially protected because it’s necessary to providing basic needs of human beings in a place where there’s already inadequate water.

There have been reports of attacks on medical facilities, which are deeply worrisome, if true. There have been attacks on parts of the oil infrastructure, which is reportedly causing terrible health conditions in Tehran and potentially making life dangerous for people who are living there. It’s important also to mention that Iran’s attacks are also clearly in violation of international humanitarian law. They’ve just been striking out pretty much everything, and many of these strikes have been on things like apartment buildings.

This is against other Gulf states.What about striking things like oil infrastructure? Because, obviously, you could imagine that oil infrastructure could be used by both civilians and the military. I suppose that the most important thing would be to be aware of those medium-term consequences, like people in Tehran being able to breathe, along with whatever initial explosion there is from bombing oil infrastructure.