KEY POINTS:
Two lessons from the Middle East hostilities: consequences are the only end moral game and international law is a fiction. That's the only clarity to emerge from the latest conflict in the region.
There's a lot of rhetoric by both sides in the bloody exchanges but, in the carnage, there are two truths that the world can learn which will lead to less human suffering.
The first is that, ultimately, the only moral currency that matters is consequences. Trendy notions such as rights and intentions are distractions and obfuscate the search for moral truths.
Israel and Hamas have to varying degrees sought to justify civilian casualties on the basis that, while they are a foreseeable result of military activities against the enemy, they are not intentional and indeed regrettable. Civilian casualties are, so the argument runs, the unwanted by-product of pursuing a just cause.
This reasoning invokes the "doctrine of double effect", which is the view that it is morally permissible to perform an act having two effects, one good and one evil, where the good consequence is intended and the bad merely foreseen and those consequences occur simultaneously. The application of the doctrine extends well beyond the battlefield.
It is often appealed to in order to justify why it is justifiable to kill an unborn baby where this is necessary to save the mother.
In the case of euthanasia, it is employed as a justification for alleviating pain by increasing doses of painkillers even when it is known that this will result in death - the intention is to reduce pain, not to kill.
The doctrine of double effect has been discredited in philosophy schools for decades. In the end, there is no inherent distinction between consequences that are intended and those which are foreseen.
That civilians will be killed is often just as certain as the killing of combatants. We are responsible for all the consequences which we foresee, but nevertheless elect to bring about. Whether or not we also "intend" them is largely irrelevant.
The propriety of the actions of Israel and Hamas will be determined by one barometer - whether in the long term they result in less human suffering than would have otherwise been the case. This will involve some speculation and approximation but at least the moral formula is clear. For all the condemnation that the Israeli bombings are receiving, they will be justified if they lead to a net reduction in the loss of human life in the foreseeable future. In this formula, each life counts equally, irrespective of which side of a border a person happens to be born.
It may seem callous to speak of any loss of human life as being justifiable or an appropriate means to an end. But it is time for a reality check and some honesty on the ethical front. Inevitable loss of life is never a moral conversation stopper.
The second important lesson to be learned from the Middle East conflict is that international law is an illusion.
It is a figment of an international lawyer's teenage yearning for certainty and order in a world where the only end geo-political game remains "might is right".
The hostilities between Israel and Hamas will cease, but the terms upon which it is reached will have nothing to do with the supposed tenets of international law.
When the global stakes are high, international law goes out the door. The most cardinal prohibition in international law is the prohibition of the use of force against another state.
Since World War II, the US has used force against another state on more than 30 occasions. Arguably, some of these interventions were lawful. Almost certainly some were not, such as Nicaragua and the second Iraq campaign. Despite this, the sum total of the adverse consequences that have been imposed against the US, as a result of the implementation of international law, is zero.
This reveals a fundamental shortcoming of the international law system - it is more akin to a system of etiquette, rather than a prescriptive set of rules.
In the latest Middle East conflict, the United Nations has predictably once again shown to be impotent when it matters.
The engine room of the UN, the Security Council, is controlled by the "Fab Five" consisting of the United States, the United Kingdom, China, Russia and France. The power exerted by the permanent members is massively in excess of their contemporary economic significance and has prevented the UN from functioning as an effective parliament for the world community.
There is only one principled method for developing an effective system of international law. This involves the establishment of a new world legislature which adopts, at the international level, the same best practice model of governance that exists at the domestic level - democracy.
In this new body, the "G193" (the present number of nations on earth) voting would be commensurate with the population in each country. There is simply no other fair basis for representation. In the end, people are the only currency that count and they all count equally.
Until such a process occurs, international law will remain a system of global etiquette; always followed, except when it is contrary to the important interests of powerful states.
It seems that in 2009, human nature will remain as expedient and brutal as at any time in history.
* Professor Mirko Bagaric teaches law at Deakin University in Australia. He is the author of Future Directions in Human Rights and International Law.
