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Tuesday, February 09, 2010

Israel's moral rules of war

Professor Asa Kasher, who wrote the IDF's ethical code, has a lengthy piece in the JPost (which also appeared at JCPA) in which he discusses the IDF's code of ethics and its application to Operation Cast Lead. Here are some things I consider highlights of the discussion.
Usually, the duty to minimize casualties among combatants during combat is last on the list of priorities. We firmly reject such a conception. In Israel, a combatant is a citizen in uniform; quite often, he is a conscript or on reserve duty. His state ought to have a compelling reason for jeopardizing his life. The fact that persons involved in terrorism are depicted as noncombatants and that they reside and act in the vicinity of persons not involved in terrorism is not a reason for jeopardizing the combatant’s life more than is required under combat conditions.

What we need instead of the crude and now impractical distinction familiar from the case of regular wars is a scale of involvement in terrorist activity: There are people who are directly involved, those who are indirectly involved, and those who are not involved at all. The second two categories may never be targeted. An operation may only target those who are directly involved, i.e., only if they play a significant role in creating an otherwise unavoidable danger.

So our doctrine allows targeted killing when it is necessary to stop a certain operation against the citizens of Israel and when the role played by the target is crucial to the operation. This is not a form of punishment. The only body that can impose punishment is the court.

Targeted killing is meant only to stop an ongoing act of terrorism. Nor is such killing a form of deterrence. Killing for the sake of deterrence is something akin to terrorism. According to our doctrine, it is impermissible to kill for deterrent purposes alone. Israel killed Hamas leaders Sheikh Ahmed Yassin and Abdel Aziz Rantisi, for instance, not to achieve a deterrent effect, but because they posed a significant threat to Israeli lives. Deterrence has been an ensuing byproduct.

Our doctrine also draws a distinction between three standards of conduct to guide a soldier in any military action: (a) a standard he should follow when facing a group comprising enemy combatants and no one else; (b) a standard he should follow when facing a group of enemy noncombatants who are not participating in the fighting and are not in proximity to enemy combatants; and (c) a standard he should follow when facing a mixed group of combatants and noncombatants.

The Gaza operation mostly took place under conditions that required the application of the third standard of conduct. In the third situation, “just war tradition” theory posits the “double effect” principle. According to this principle, when we are seeking a goal that is morally justified in and of itself, then it is also morally justified to achieve it, even if this may lead to undesirable consequences – on the condition that the undesirable consequences are unavoidable and unintentional, and that an effort was made to minimize their negative effects.


Writing in The New York Review of Books, Avishai Margalit and Michael Walzer attacked our doctrine on the grounds that such warnings are not enough. “In such cases,” they wrote, “some civilians never leave, despite repeated warnings – because they are old and sick, or because they are caring for relatives who are old and sick, or because they are afraid that their homes will be looted, or because they have no place to go.”

Now under such circumstances, should Israel send in troops to find out whether there are noncombatants in addition to the terrorists or not? Our doctrine says Israel was not required to send in troops because the mixture of terrorists and noncombatants is a mixture not under our moral responsibility in a territory over which we do not have effective control, as in Gaza.

In a state of effective control, the responsibility for distinguishing between terrorists and noncombatants is placed upon Israel’s shoulders. We do have effective control over Tel Aviv, Jerusalem, the Golan Heights and many other places, so there we do jeopardize the lives of police when necessary to prevent criminal acts without harming the neighbors. That is their duty.

But there is no army in the world that will endanger its soldiers to avoid hitting the well-warned neighbors of an enemy or terrorist. When Israel does not have effective control over a territory, the moral responsibility for distinguishing between terrorists and noncombatants is not placed upon its shoulders. Gaza was not under our effective control.

Therefore, one does not have to jeopardize the lives of the troops in such circumstances just for that sake. If you look at noncombatants in a territory where one does not have effective control and have already issued a series of warnings that are known to have been effective, then the lives of the troops come first.


A word about proportionality. Many critics of the Gaza operation charged that, since very few people were killed by rocket attacks on Israel’s population, while many people were killed by the Israeli response, this response was disproportionate and, therefore, contrary to international law. However, the way the term “proportionality” has been employed in public discourse is usually wrong.

First, the number of Israeli casualties is not a reliable measure of the threat posed by enemy rockets. A Grad rocket hit a Beersheba classroom on December 31, 2008; had the missile hit the school when classes were in session, dozens of schoolchildren would have been killed. Luck does not diminish the threat posed by an attack. Proportionality is not a numerical comparison, but an assessment of justifiability of the collateral damage made by the military advantage gained.

An example: At the beginning of the Gaza campaign, a police headquarters was hit because so-called policemen were part of the Hamas security forces and some of them were suicide bombers and others were firing rockets. They were not innocent people involved in traffic control. They were part of a Hamas security force that acted like a reserve unit, and during military warfare you are permitted to hit reserve units that are going to enter the battlefield.


Compare the Gaza operation to Operation Phantom Fury, which the US Marines launched in Fallujah, Iraq, in late 2004. Many of Fallujah’s 350,000 residents fled the city before the operation, leaving an estimated 3,000 insurgents behind. During the operation, about 6,000 Iraqis including 1,200-2,000 insurgents were killed. Of the city’s 50,000 buildings, about 10,000 were destroyed, including 60 mosques, each of which was used to store substantial quantities of armaments and munitions.

Even according to Palestinian figures, which are unreliable, 1,400 Palestinians were killed in the Gaza operation. Thus, the United States left a trail of destruction in Fallujah that was far greater than anything Israel inflicted on Gaza. So there is no basis to claim that Israeli conduct of anti-terrorist warfare is less restrained than that of other enlightened states.

We compare Operation Phantom Fury and Operation Cast Lead not to use the results to cast a shadow on the former or to praise the latter. We compare the operations because the way democratic states conduct their military activities is what should interest us, rather than some creative and often hostile interpretation of the conventions, as a step toward instituting customary international law.

Customary international law accrues through an historic process. If states are involved in a certain type of military activity against other states, militias, and the like, and if all of them act quite similarly to each other, then there is a chance that it will become customary international law. We in Israel are in a key position in the development of law in this field because we are on the front lines in the fight against terrorism. I am not optimistic enough to assume that the world will soon acknowledge Israel’s lead in developing customary international law. My hope is that our doctrine, give or take some amendments, will in this fashion be incorporated into customary international law in order to regulate warfare and limit its calamities.
Read it all. I wonder how many armies in the World other than Israel's even think about these things. Very few.


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