25 November 2024. Nigel for The Spectator.

Legal reasoning is only as good as the ethical concepts it uses. That’s why the International Criminal Court’s decision to issue arrest warrants for Israel’s Prime Minister and former defence minister is basically flawed.

The ICC claims reasonable grounds for believing Benjamin Netanyahu and Yoav Gallant guilty of the war crimes of ‘intentionally and knowingly depriv[ing] the civilian population in Gaza of objects indispensable to their survival’, creating ‘conditions of life calculated to bring about [their] destruction’. The grounds are these: Israel’s failure to facilitate relief ‘by all means at its disposal’ and to ‘ensure that the civilian population… would be adequately supplied with goods in need’ amounts to a violation of the ‘fundamental rights… to life and health’.

Had the ICC sat in judgement on the war against the Nazis, it would have issued arrest warrants for Churchill and Eisenhower

There are two major ethical problems with this. The first concerns the concept of intention. We often do something in full awareness that it will have an undesirable consequence we don’t want, but we do it anyway for the sake of a desirable consequence we do want. And if that desirable consequence is more important, or if we are under an overriding obligation to prefer it, then our causing the undesirable consequence is proportionate – provided we take all feasible steps to minimise it. That’s the ethical principle of ‘double effect’. The desirable consequence or effect is what we intend; the undesirable effect we accept with active reluctance . . . .