July 31, 2009
Number 07/09 #12
Yesterday, the Israeli government released a 165-page report intended to respond to some of the claims and criticisms that have been made about Operation “Cast Lead” in Gaza at the beginning of this year. The full document is here as a pdf – news reports with some description of the contents are here and here. While the document is too large to include here, this Update features some additional new Israeli comment and analysis on what actually happened in “Cast Lead”.
First up is Israeli journalist Ben-Dror Yemini of the Hebrew-only Israeli daily Maariv. He takes on much of the rhetoric and routine claims made about the number of civilians, as opposed to Hamas combatants, who were killed in Gaza, and reveals much interesting Israeli research which is not widely acknowledged outside Israel. Moreover, he shows that Israel almost certainly killed a lower proportion of civilians in Gaza than NATO did, out of a similar number of total casualties, in their bombing campaign of Serbia in 1999. For this interesting summary of new information about casualty figures from Gaza, CLICK HERE.
Next up, Alan Baker, an international law specialist who previously served in the Israeli Foreign Ministry, looks at the missing factor in most UN discussions of Israeli actions in Gaza – the rockets Israel was responding to. Noting the absence of more than token recognition of this reality, he takes us through the effects of this according to the laws of war. Baker warns that ignoring this blatant illegality compromises the credibility of the UN Human Rights Council. For his complete argument, CLICK HERE.
Finally, this Update offers a long discussion of Cast Lead and the ethics of war from one of Israel’s leading academic philosophers and ethicists, Professor Asa Kasher from Tel Aviv University. While he does not come to any conclusions about the specific facts relating to Cast Lead, he does look at how traditional “Just War” theory can be applied to this case, and takes issue with many of the sorts of claims being made about how Israel should be judged. It’s very enlightening for anyone with the time to read it. To do so, CLICK HERE.
Readers may also be interested in:
- Dr. Gerald Steinberg of NGO Monitor on the sad trajectory of Human Rights Watch.
- A claim the UN is holding what can be described as a “mini-Durban conference” complete with some blatantly antisemitic statements.
- A study of antisemitism on Egyptian television. Plus, positive news on Holocaust education efforts in Morocco.
Maariv, July 20, 2009
[translated from the original Hebrew by Ami Isseroff.]
Every week new reports are published on the number of civilians killed in the Gaza Strip during Operation Cast Lead. Again and again, Israel is blamed for “disproportionate casualties among civilians.” Here and there, claims of “war crimes” are raised. It must be said that, first, any civilian death is deplorable and everything possible must be done to prevent such deaths. Second, any reasonable allegation must be investigated. There is not an army in the world that has not made mistakes, and the IDF is no exception. But apparently there are many entities that are enamored of lies. Hamas claimed from the start that only a small number of those killed in Gaza were fighters. Many human rights organizations adopted the claims made by Hamas and other Palestinian organizations. So the time has come, if truth has any meaning whatsoever, to present the real story.
Abdullah Abdel Hamid Muammar, a 22-year-old student from the village of el-Nassar north of Rafah, was killed in Operation Cast Lead. So we are told by the official report of the Palestinian Centre for Human Rights (PCHR). This report contains details about the war casualties that purport to be accurate. The purpose is obvious: to prove to the whole world that most of the casualties were innocent civilians who were hurt by the bombing of the civilian population.
Many human rights organizations, including Amnesty, B’Tselem and Human Rights Watch (HRW), relied, in whole or in part, on the PCHR data, which turned Muammar into an innocent victim. But there’s a problem with that. According to a publication issued by the Press Department of the Al Qassam Brigades, Muamar was a member of Hamas, and he appears in a picture on an Arabic website in which he is carrying a Qassam missile. This is also the case with many other “innocent civilians.” They were terrorists. It turns out that, to discover that lie – which was just one of many – meticulous investigations were required. Dr. Tal Pavel of the Interdisciplinary Center, Herzliya, and Jonathan Dahoah-Halevy, a researcher at the Jerusalem Center, investigated each name on the list of casualties.
The various organizations announced that between 1,200 and 1,400 were killed in Gaza. The number may have been inflated, as claimed, for example, by journalist Lorenzo Cremonesi, reporting from the Gaza Strip for the Italian newspaper Corriere della Sera about inflation of the numbers and the manipulations by Hamas. We should also mention the investigation conducted by the IDF which appears to be a bit more reliable and puts the number of killed at 1164, as well as the fact that Hamas issued explicit instructions to conceal and deceive.
According to Pavel’s research, 564 of the dead were members of Hamas. All of them were honored, as fallen fighters, on Hamas websites. In addition to them, according to IDF investigations, about 100 Islamic Jihad members were killed. Assuming that other terrorists were killed, for example those belonging to Fatah, then most of the dead were not innocent civilians. And that’s just the beginning.
The bombing of the Hamas Police Academy earned wall-to-wall condemnation because, according to international law, police are considered civilians. Here we will go into the results of the research conducted by Dahoah-Halevy. According to a name-based investigation of each of the “policemen”, it turns out that 88.4% of them belong to the security – i.e., terrorism – mechanisms of Hamas. One of them, Muhammad el-Dasuqi, a member of the Resistance Committee, is suspected of being one of the perpetrators of the terrorist attack on the American convoy in 2003.
One of the most prominent events in the Gaza operation was the bombing of the UN school in the Jabalya refugee camp on January 6. All the media around the world publicized horrific pictures of “over 41 killed in the Al Fakhura school.” The condemnation was worldwide, from the UN Secretary General, through the President of the United States, to the Prime Minister of Great Britain.
Many long weeks passed before it was shown to be a libel. First, the three artillery shells did not hit the school at all. Second, Hamas people were firing from the area and the IDF aimed its fire at them. Third, the number of killed was far smaller than originally reported. Most of the media and human rights organizations that publicized the original news did not bother to publicize the information that was disclosed. Those who are infatuated with libel are not prepared to be confused by the facts.
There were still many killed who are not identified as fighters. That is also worth investigating. If the IDF strike lacked discernment, the demographic breakdown of the casualties (erroneously called “uninvolved civilians”) should have been identical to the demographic breakdown of the general population. However, a different picture emerges. A quarter of the population are adolescent girls. Actually, 8% of those killed were adolescent girls. A quarter of the population are adult women. Only 14% of those killed were women. The higher percentage of male casualties – much higher than their proportion of the population – proves that among them were a higher percentage of men involved in the fighting. In other words, the percentage of civilian casualties was dramatically smaller than the claims made against Israel. According to a more in-depth investigation by a team of researchers from the Interdisciplinary Center, between 900 and 1,070 of the casualties (63% – 75%) were killed because they were involved. If we add to that the fact that Hamas used civilians as human shields, or adolescent boys who were forced to participate in the fighting, the percentage of the casualties who were involved in the fighting only increases.
It is interesting to note the behavior of the armies of western countries when they had to conduct a similar war. Let’s assume that there is no comparison with the World War II Allied bombing of Tokyo and Dresden. We’ll deal with something more similar and closer in time. In 1999, NATO forces conducted a similar war, mainly by aerial bombing, against Yugoslavia (Operation Allied Force). 462 soldiers, 114 policemen and 489-512 civilians were killed.
Because there, the policemen were actually policemen, and in Gaza they are terrorists, the general balance shows that Israel hurt far fewer civilians than NATO did. And with regard to the demographic breakdown and the forced use of adolescent boys and civilians, the number of innocent casualties is apparently far lower.
The Israeli media, which publicized the stories of soldiers from the pre-military preparatory course – which turned out to be rumors and outright fabrications – did not publish the results of the serious investigations below. On the contrary. An editorial by Ha’aretz stated that it involved the “criminal killing of dozens of policemen…knowing that these policemen were nothing but enforcers of civilian order.” Hamas is snickering. They publicize pictures of the “policemen” armed with Qassams, and Ha’aretz calls them “enforcers of civil order.” The West reads Ha’aretz in English, not Hamas in Arabic. So sometimes, when Ha’aretz is around, Hamas does not need a propaganda department.
Even when this research was available, no one bothered to make corrections. On the contrary. The hara-kiri continues. The media, in Israel and around the world, are tainted with a peculiar selectivity. Any serious research that proves that there were no war crimes is rejected. Any fabrication that doesn’t have a shred of basis in fact rates enormous headlines. That is what happened with the bombing of the Al Fakhura school in Jabalya, and in other cases as well.
Prof. Arnold Toynbee, who was no friend of Israel, wrote in one of his books, “In the history of man’s endeavors to develop culture, there has never been a society whose progress and cultural level were so advanced that in time of revolution or war, its members could be depended upon not to commit evil acts.” That is true of Israel and it is true of every country that finds itself in a state of war. So I will reiterate that every deviation should be investigated. But by the same token, there is no need to hide the true picture: with regard to the fact that Gaza is controlled by an entity whose way is terrorism, whose platform is anti-Semitic, and whose official objective is the destruction of the State of Israel, the number of innocent casualties in the course of the operation was far smaller than the stories fabricated by Palestinian organizations, human rights organizations and newspapers in Israel and around the world, such as Ha’aretz, which feeds many news agencies worldwide. We can, and should, publicize serious claims of deviations. But we also can, and should, at least to the same extent, present the serious research.
Ben-Dror Yemini is the opinion-editor of the daily newspaper Maariv.
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THE JERUSALEM POST, Jul. 28, 2009
In reviewing the documentation and resolutions of the Human Rights Council that serve as the mandate of the United Nations Fact Finding Mission headed by Judge Richard Goldstone, the terminology used would give any objective observer the impression that Israel and Israel alone, unilaterally and indiscriminately, without provocation or justification, instituted a “massive…. military operation,” “siege,” “military aggression,” “collective punishment,” “massive and grave violations of human rights,” “targeting of civilians and medical facilities and staff and the systematic destruction of Palestinian cultural heritage.”
One is led to assume that Israel suddenly attacked a peace-loving Gaza Strip for no reason and without any provocation, merely out of some insane desire to create suffering and loss among its Palestinian population.
THERE IS NO reference to the Hamas terror organization that administers the area, or to its implacable hostility to Israel, and which, together with the Islamic Jihad and others, had for several years instigated hostilities, kidnappings and acts of pure terror against Israel’s civilian population.
The minimal lip-service call for “the end to the launching of crude rockets against Israeli civilians which have resulted in the loss of four civilian lives and some injuries” is couched in minimal terms, without any reference as to who fired the rockets or from where, as if completely unrelated to the main body of the resolution, and without the slightest hint as to the nature, intention, true effect and aims of the eight-year, indiscriminate barrage directed against southern Israel’s population centers.
The determination in the resolution that Israel’s military attacks resulted in the “killing” (not, in this case, “loss of life”) of “more than 900 and injury to more than 4,000 Palestinians” conveniently ignores the fact that over 900 of the Palestinian casualties were directly involved in fighting against Israel, either as Hamas and Islamic Jihad fighters, acknowledged by the Hamas Web sites that honored their “martyrdom,” or human shields forced by Hamas to participate in the hostilities.
An additional misconception would be the false and misleading equivalence drawn between Israel on the one hand – a country whose southern citizens had been under constant armed attack and long-term indiscriminate rocket bombardment by a terror organization intent on instilling terror, a country that acted in self-defense against the perpetrators of the rocket fire – and, on the other hand, a group of terror organizations (Hamas and Islamic Jihad) that proudly and openly use and advocate the use of terror, brazenly undermining the norms of international humanitarian law in order to terrorize Israel’s civilians and achieve their ideological objectives.
The virtually complete absence, in the documentation serving as the mandate of the Fact Finding mission, of any reference to the Hamas/Islamic Jihad rockets and their effect on Israel’s civilian population does grave injustice to the Human Rights Council, which purports to base itself on the accepted norms of human rights and international humanitarian law.
The basic and customary norm prohibiting attack on or bombardment of towns, villages, dwellings or buildings which are undefended was laid down in article 25 of the 1907 Hague Rules respecting the laws and customs of war on land. Article 51 of Additional Protocol 1 of 1977 to the Geneva Conventions clearly determines that “The civilian population as such, as well as individual civilians, shall not be the object of attack.” The concept of terrorization as a tactic of war is addressed clearly in the same article, which states that “Acts or threats of violence the prime purpose of which is to spread terror among the civilian population are prohibited.” The Protocol goes on to prohibit attacks not directed at specific military objectives, or which employ methods or means that cannot be limited
FROM ALL THIS, one may perhaps understand why the drafters of the resolution of the Human Rights Council went to such pains to downplay any reference to the Hamas/Islamic Jihad rocket bombardment of Israel’s southern population – a bombardment that went on virtually without international concern for eight years, that exposed the one and a half million civilians in a radius of 40 km to daily terror.
In this context it is utterly irrelevant to describe the rockets as “crude.” The fact that many of them exploded in schools and kindergartens, in private homes and on moving vehicles is sufficiently indicative of the purpose of the weapon – to indiscriminately terrorize a large civilian population. The fact that at any given time of the day or night such rockets could explode anywhere, virtually without warning, renders irrelevant any discussion as to their destructive potential. In this context, “luck” was the only factor that prevented far greater casualties.
The fact that Israeli municipal precautionary measures, bomb shelters and public warning mechanisms prevented a large number of casualties is equally irrelevant when considering the aims and purposes of Hamas and Islamic Jihad. The rockets were intended to strike civilian centers, schools, homes, shopping centers and so on. Launches were timed to affect a maximum number of civilians and create the greatest number of casualties. To all intents and purposes, all of southern Israel was, for Hamas and Islamic Jihad, a military target.
The “successful” outcome of this long-term bombardment was indeed the terrorization of Israel’s civilian population in the south. The psychological effects of the bombardment have created thousands of casualties among all sectors of the population – young, old, infirm – who will require treatment for years to come. Children fear leaving their home; residents are afraid to walk in the streets or use public transport. These are only some of the ongoing effects of this terror campaign.
Let’s hope that the deliberate and long-term targeting of Israeli civilians, as well as the use of civilians and civilian installations by the Palestinian terror groups as shields will receive serious attention by the Fact Finding Mission, despite the fact that these matters are virtually ignored in the documentation describing the mission’s functioning.
The writer is a partner in the Law Firm of Moshe, Gicelter & Co. and served as former legal adviser to the Israeli Foreign Ministry and ambassador to Canada.
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By Asa Kasher
Azure 769 no. 37 /Summer 2009,
On Saturday, December 27, 2008, after eight years of continuing rocket attacks on its territory by Islamic terrorist organizations, Israel launched a full-scale military operation against the Hamas regime in the Gaza Strip. Officially named Operation Cast Lead, it began with massive air-strikes against Hamas and Islamic Jihad targets, and continued with a ground incursion in which thousands of Israeli soldiers participated. After twenty-two days of fighting, Israel announced a unilateral ceasefire, which became effective on January 18, 2009.
While the political and military achievements of the operation are contested, the damage it left in its wake is undisputed. Ten Israeli soldiers and three Israeli civilians were killed. Due to the asymmetry of forces, the Palestinian side sustained especially heavy casualties: According to Palestinian sources in the Gaza Strip (whose credibility, it must be noted, is questionable), more than one thousand people were killed and much of Gaza’s infrastructure was destroyed. Humanitarian relief agencies estimate that nearly 100,000 Palestinians were left homeless.
The destruction caused by the Gaza operation, as well as the disturbing pictures of it broadcast around the world, incited violent international protest and a public debate within Israel itself. The most outspoken critics of the operation accused the Jewish state of engaging in excessive and indiscriminate aggression, as well as committing war crimes against the Palestinians. More moderate commentators questioned the necessity of some of the Israel Defense Forces’ (IDF) actions during the fighting, and wondered whether the operation could have been brought to a close without causing such widespread carnage.
Though understandable and perhaps inevitable, this heated debate is unfortunately founded, in most cases, on insufficient and flawed information, semantic confusion, and the misuse of moral principles. The main purpose of this article, written by one of Israel’s leading philosophers, is to try to deal with some of these shortcomings. At the very least, it points us toward the proper moral, ethical, and legal standards by which the Gaza operation should be evaluated.
A properly functioning state should plan its actions carefully, execute them appropriately, and examine them scrupulously afterwards. A military operation is an important and complex act of state, and it is not exempt from proper planning, execution, and examination.
Whenever a state conducts a military operation outside of its borders, it engages in a political action. In a democratic state, the government must rigorously examine the political considerations and decisions that led to this action. A military operation also involves the deployment of armed forces and the cooperation of intelligence agencies. Each of these institutions is also expected to undertake a professional, methodical, and searching post-hoc inquiry into the considerations taken and decisions made in every professional locus of control that has had an effect on the operation—including those of operative planning, tactical performance, and intelligence. A responsible inquiry into these loci may then lead to a professional investigation of other loci of influence, such as those involved in capability building (i.e., developing military doctrines, practical training, etc.).
These political investigations and professional inquiries must pay special attention to every aspect of the operation that is related to moral and ethical values. Decisions, commands, and actions should be closely examined in order to determine whether they appropriately manifested the moral principles of the State of Israel, the ethics of the IDF and the General Security Service, and the laws to which Israel is subject.
There are two stages to such an analysis: First, one must determine the requirements that every military operation must fulfill in light of Israel’s moral principles as a Jewish and democratic state;1 the ethical codes of the IDF and the General Security Service;2 the laws that Israel must observe as a state in which the rule of law prevails; and the laws it must observe as a properly functioning state subject to both jus gentium (the “law of nations,” i.e., international norms which apply to all states) and jus inter gentes (the “law between the peoples,” i.e., treaties and agreements entered into by sovereign nations). Second, one must ascertain whether the decisions made, orders issued, and actions performed in the course of the operation fulfilled these moral, ethical, and legal requirements. In order to do this, one needs as reliable, full, thorough, and accurate an account of the relevant facts as possible. It is impossible to complete any moral, ethical, or legal evaluation of an operation before an investigation of its political background and an inquiry into the military’s professional performance are completed. During and after Operation Cast Lead, many people, both in Israel and abroad, made statements about it as if this kind of examination had already been completed and its findings were at their disposal. Since it is reasonable to assume that not a single one of them had a reliable, full, thorough, and accurate account of the facts, their assertions can carry no moral, ethical, or legal significance at this stage.
For the time being, then, we should focus on the first stage of investigation mentioned above and restrict ourselves to examining the moral, ethical, and legal requirements to which decisionmakers and participants in military actions are bound. These requirements predate and are not dependant on the specific facts of Operation Cast Lead. However, though we are not in a position to provide a comprehensive answer to all the questions raised about what took place in the Gaza Strip during January 2009, the data collected so far permits us to conclude that a significant part of the criticism directed at Israel and the IDF during and after the operation was, to say the least, based on flimsy evidence.
The first factor one needs to consider when analyzing a military operation undertaken by a democratic state outside its own borders is the political decision to initiate the operation, and the circumstances under which this decision was taken. In order to evaluate such a decision properly, it is necessary to do so from two separate viewpoints: external and internal.
We will begin with the external viewpoint. From this point of view, we will morally evaluate the political decision to wage war or carry out a military operation based on considerations of international relations. The question we face at this point is the following: Does a state have a moral justification for taking military action against another state under the circumstances in question? We can pose similar questions about a military action against a non-state entity with a ruling body that, to a significant extent, effectively governs a specific territory (such as Hamas in the Gaza Strip); an organization that operates from within the territory of another state, and enjoys so much freedom of action that it effectively governs part of that state (such as Hezbollah in Southern Lebanon); and finally, an organization that operates from within the territory of a non-state entity (such as terrorist organizations operating in areas controlled by the Palestinian Authority). Even at this early stage of the discussion, it is already necessary to note not only the similarities between these situations, but also the differences between them, each of which requires a separate moral discussion.
The basis for any such discussion is the moral conception known as just war theory.3 This term does not designate a doctrine that has a single, authoritative form or interpretation. It is, rather, a family of concepts (e.g., “combatants” or “proportionality”), distinctions (e.g., between military and nonmilitary targets), and principles (e.g., that it is forbidden to harm enemy soldiers once they have surrendered). Moreover, scholars of just war theory often disagree about the meanings of its concepts, the considerations underlying its distinctions, and the specific consequences of its practical principles.4 Over time, however, just war theory has developed an accepted set of eight principles, which form the basis of the standard moral discussion of war.5 In addition, a framework of international law has emerged that constitutes the basis of customary legal discourse on the subject.6
Just war theory, as expressed in its moral principles and in international law, makes certain assumptions about the warring parties and the circumstances of their conflict. Usually, it is assumed that the warring parties are sovereign states and that, most of the time, circumstances permit a differentiation between combatants and non-combatants that is not too complicated. These assumptions, however, do not hold with regard to Israel’s military confrontations with Palestinian terrorist organizations, Hezbollah in Lebanon, or the Hamas regime in Gaza. In order to apply the principles of just war theory to these engagements, it is necessary to widen its scope. For the purposes of the present discussion, however, we will abstain as much as possible from theoretical innovations, instead supporting our claims using the theory in its traditional form.
The first principle of just war theory in the circumstances under discussion is the principle of just cause. A state must have a compelling justification for taking military action against a state, entity, organization, or individuals outside its borders. From a moral standpoint, the only compelling justification for such action is self-defense. A state, therefore, can only justify military action if it can demonstrate that it acted on the basis of its right to self-defense.
No one can honestly dispute that, for years, Hamas, Islamic Jihad, and other terrorist organizations in Gaza have launched thousands of rockets at Israel’s population. Therefore, we can present a responsible answer to the question: Was the decision to take military action against those terrorist organizations, at that particular time, justified on the basis of the right to self-defense? The answer is self-evident: Firing rockets at Israel is an attack on the state and a constant endangerment of the life, health, security, and well-being of the citizens under attack.
Nevertheless, just war theory makes it clear that it is not enough for military action to be justified on the basis of self-defense. Though self-defense is a necessary condition for the justification of war, it is not a sufficient one. The moral considerations behind this assertion are clear: Military action poses a grave danger to human life, health, well-being, property, and liberty. If effective self-defense can be guaranteed by other means, this is clearly preferable to a course of action that involves destruction, suffering, and death. The use of military force is, therefore, justified only if all other alternatives have been exhausted. In just war theory, this is known as the principle of last resort.
Was the decision to launch Operation Cast Lead justified under the principle of last resort?
In order to answer this question in a responsible manner, it is necessary to understand the threats facing Israel’s citizens, the possible alternatives to military action, the various attempts to pursue them, and the outcome of each attempt. Within the spectrum of threats, the rocket attacks initiated by terrorist groups—not only Qassam rockets but also longer-range missiles and more destructive weapons—must be considered. Alternatives to military action could include indirect negotiations for a ceasefire, international diplomatic pressure, and the imposition of a blockade. Israel, along with other international actors, pursued these options without success while Hamas and Islamic Jihad continued their rocket attacks on Israel’s southern population.
The continued rocket attacks on Israel by the terrorist organizations in the Gaza Strip, as well as Israel’s continued abstention from any large-scale military response in the face of this aggression, give rise to a presumption of justification regarding the state’s decision to take military action as a last resort. Those who argue otherwise bear the burden of proof, and would need to demonstrate that: (a) there was a non-military alternative that Israel did not pursue; (b) had Israel pursued this alternative, its citizens would have been immediately and effectively protected from the threat of rocket attacks; and (c) this would have made military action unnecessary. To date, no alternatives that would have fulfilled these conditions have been proposed.
Some people claim that a peace agreement between Israel and the Palestinians would provide Israeli citizens with the best protection against rockets and missiles, suicide attacks, and other horrors of terrorism. It is true that a democratic state is required to seek peace agreements with neighboring states and peoples.7 However, the idea that it is possible to reach a political settlement with the Palestinians that would be upheld by Hamas, Islamic Jihad, and other terrorist organizations is quite doubtful. Even if we accepted the plausibility of such a claim, it is all but certain that rocket attacks on Israel would continue throughout the negotiations. In fact, they would likely increase. Leaving a state’s citizens vulnerable to persistent threat is not morally justified by the mere fact of ongoing negotiations. Nor can the fact that negotiations are taking place justify avoiding the last-resort option after all alternative courses of action have failed. As long as a state’s citizens are under attack, even during a negotiation process, that state has an obligation to provide them with adequate protection.
There are those who call on Israel to engage in direct negotiations with Hamas, in order to rid its citizens of the threats posed to them by rocket attacks and other kinds of terrorist activity. This argument warrants a similar response. From a moral standpoint, demanding that Israel engage in direct negotiations with a terrorist organization that does not recognize its right to exist cannot be justified. While indirect negotiations through some sort of mediation are a possibility, there is no basis for the supposition that this alone would be enough to achieve protection for Israel’s citizens. Indeed, as we have already seen, rocket attacks continued while Israel was engaged in indirect negotiations with Hamas. Neither direct nor indirect negotiations can fulfill the three requirements mentioned above and cannot, therefore, be seen as effective alternatives to military action.
While a state entering into a war or embarking on a military operation must do so in self-defense and in the absence of other alternatives, these conditions alone do not suffice according to just war theory. A state may have other intentions—historical revenge, for example—which can alter the course of the war or its political aftermath, and which are not morally justified. Such motives can lead to excessive death and destruction, beyond what self-defense would require. The principle of right intention demands that a state not only wage war in a just cause, but that all of its intentions, on every level, be equally justifiable.
The aims of Operation Cast Lead included deterring Hamas and other terrorist organizations from launching rockets into Israel. Such deterrence is, in and of itself, morally desirable, because it can effectively prevent terrorist operations (or even war itself, as in the case of a state such as Syria). Nevertheless, measures taken in order to establish deterrence must meet certain moral requirements.8
The best method of achieving deterrence in a morally acceptable way is to achieve it as a side effect of some other action. Targeted killings of terrorists, for instance, not only offer immediate protection to a state’s citizens. They also achieve deterrence, because the enemy becomes aware of the state’s ability to detect threatening activities, identify the perpetrators and their whereabouts, and attack them. Deterrence is not the primary goal of targeted killings, however, but rather a welcome side effect. The intention to deter the enemy as a side effect of military activity constitutes a right intention.9
The difference between deterrence as a goal and deterrence as a side effect is essential. An operation whose goal is to thwart terrorist attacks should not be influenced by the likely possibility that it will also create deterrence. Theoretically, an operation can include the use of measures whose purpose is not to foil terrorist attacks but only to create deterrence. To the extent that injury or even death is caused as a result of these measures, they are morally unjustified. For example, killing someone who is essentially harmless in order to deter others from possibly posing a threat cannot be morally justified. A democratic state is required to protect human dignity as such. It cannot use human beings as mere tools to create deterrence. Human beings are not tools to be used.
Generally speaking, it is reasonable to ascribe to Operation Cast Lead the intention of achieving deterrence as a side effect of an act of self-defense. Likewise, descriptions of the operation as “disproportionate” in the Israeli and international media are problematic, because they appear to presume that deterrence was the main purpose of the operation, rather than a side effect of it. A description of the operation in terms of “powerful response” is more appropriate.10
One of the lesser-known principles of just war theory prohibits a state from embarking on a military campaign if it does not have a reasonable chance of winning it. War, by definition, involves the loss of human life, as well as suffering and destruction on a massive scale. The probability of success principle prohibits taking military action—which inevitably involves death, suffering, and destruction—if it is certain to fail. Therefore, it is impossible to justify a war that serves only a “symbolic” purpose.
This principle deserves our renewed attention in regard to military actions such as the Second Lebanon War and Operation Cast Lead, which were undertaken against guerrilla, terrorist, or terrorist guerrilla organizations. In conflicts of this kind, the definition of “victory” is different from that of “classic” wars between states and their armies. As we witnessed in the Second Lebanon War, a state’s military action against a terrorist guerrilla organization can kill many of the group’s combatants and destroy a significant part of its infrastructure without eliminating its ability to carry out terrorist activities and attack the state’s citizens. During Operation Cast Lead, we realized that the same holds true in conflicts with urban terrorist organizations.
While the term “victory” may be emotionally satisfying, it is problematic from a professional military point of view. This is because it does not enable a clear distinction between the goals of a “classic” war and the goals of different kinds of wars or campaigns such as Operation Cast Lead. In these new contexts for the use of military force, it is best to replace the elusive term “victory” with the notion of “achieving specific goals by accomplishing the missions.” This concept is easier to evaluate with precision and to use in professional employment of military forces.11
The primary goal of Operation Cast Lead was described as “improving the security situation” in the areas of the state under rocket attack. This is a proper objective, not only because it stems from the right to self-defense, but also because it is attainable. “Improving” the situation does not mean the elimination of all threats. An improvement can be attained by killing many terrorists, destroying much of their available weaponry, and causing heavy damage to their armaments infrastructure.
“Proportionality”—a term raised many times in the context of Operation Cast Lead—actually refers to two different principles of just war theory: The principle of macro-proportionality, which applies to the overall decision to take military action, and the principle of micro-proportionality, which applies to specific military actions. I will now turn to the first principle, and address micro-proportionality later in our discussion.
In order to clarify the issue, we must examine some of the commonplace accusations of disproportionality made regarding the Second Lebanon War and Operation Cast Lead. The most common charge raised by critics of these campaigns concerns the number of casualties. They argue that, since very few people are killed by rocket attacks on Israel’s population, while many people are killed by the Israeli response, this response is disproportionate and, therefore, both morally unjustified and contrary to international law. This claim is both invalid and groundless. It is invalid because the number of Israeli casualties is not a reliable measure of the threat posed by enemy rockets. Let us recall the Grad rocket that hit an Ashkelon classroom on February 28, 2009, which happened to be a Saturday morning. Had the missile hit the school on a day when classes were in session, dozens of school children would have been killed. The good fortune of these children does not diminish the threat posed by the attack itself. Aresponsible comparison between Hamas attacks and Israeli action during Operation Cast Lead would not distinguish between “hits” and “close calls.” It would take into account the thousands of rockets that have been fired into Israeli towns and cities, and would reach the conclusion that the Palestinian threat to Israeli citizens is greater than the Israeli threat to residents of the Gaza Strip who reside in the vicinity of the terrorists.
Furthermore, no principle of proportionality entails a demand for numerical equivalence. A moral evaluation of proportionality in military action should focus on the question of whether the positive results of the operation on one front outweigh the negative results on another. Macro-proportionality requires that this condition be met. The positive results of the operation should be measured in terms of the protection it has provided to the state and its citizens at the conclusion of the military campaign and its aftermath. The negative results should be measured in terms of the death, suffering, and destruction inflicted on the other side. Once again, this is not a numerical comparison, but rather an assessment of existing threats and the measures that must be taken in order to avert them.
Let us examine, for example, the circumstances of the outbreak of the Second Lebanon War. During the first stage of the war, Hezbollah fighters killed eight Israeli soldiers and kidnapped two who died of their wounds. At this point, Israel was faced with two threats: First, that Hezbollah would carry out another operation in which they might succeed in killing or kidnapping more Israeli soldiers. Second, were Israel to take military action in order to avert the first threat, Hezbollah might respond by barraging the north of Israel with Grad rockets. In order to protect itself from both of these dangers, Israel needed to launch a strike against the sources of the second threat, both in South Lebanon and in certain neighborhoods of South Beirut. Whether or not Israel could have minimized the damage inflicted on a specific site in South Beirut or any other area without diminishing the security of its citizens is a legitimate question. But most of the accusations of disproportionality during the Second Lebanon War were more generalized and thus invalid and unsubstantiated.
Similar charges were made about Operation Cast Lead. For example, the Spanish author Javier Mar×as told the Israeli newspaper Haaretz that Israel “drew a gun in response to a slap in the face.”12 This is a colorful expression, but it is also an invalid and unsubstantiated claim. The cause of Operation Cast Lead was not a “slap in the face,” but a very long series of thousands of slaps. After how many slaps and attempted slaps and threats of slaps is it time to draw a gun? I assume that the author did not mean to say that Israel should have turned the other cheek, so it seems reasonable to assume that he thinks Israel should have responded to a slap with a slap, or a punch at most. He thus missed the major point: Israel’s response was not undertaken simply for the sake of responding, but to obtain genuine protection for itself and its citizens. One is permitted to ask: How can we know that an Israeli slap would prevent the next Hamas slap? It seems reasonable to assume that even a punch would not have prevented future slaps or lowered the threat they posed—which is not the case with “drawing a gun.”
Moreover, accusations that Israel “drew a gun in response to a slap in the face” entirely miss another essential point: In this context, proportionality is not assessed by simply comparing the Israeli military response to a specific enemy operation (“the slap”). Instead, it involves a comprehensive assessment of Operation Cast Lead in light of the ongoing actions that the enemy has committed for many years and will continue to commit for the foreseeable future (“endless repeated slaps”). Such an assessment should take into account the enemy’s desire and ability to inflict continuous harm on Israeli citizens. After all, Israel did not draw a “gun” in response to one “slap in the face,” but in response to constant slapping, attempts to slap, and threats to inflict stronger and more powerful slaps.
Accusations of disproportionality in war often refer to the “use of excessive force.” To justify these claims, one would need to offer alternatives in which the use of force (a) would not be excessive; (b) would be effective, i.e., provide the required protection from specific threats;13 and (c) would be available when the circumstances require it. Considering these conditions, it is not surprising that we have yet to encounter any defensible criticisms of the use of overwhelming force. Indeed, they are quite difficult to make from the comfort of one’s armchair.
So far, we have discussed the principles of just war theory from the external viewpoint, which focuses on the interaction between the state and outside bodies and forces. Now we will turn to the internal viewpoint, which is concerned with the relations between the state, its institutions and basic arrangements, and the citizenry.
The most important aspect of the relationship between a state and its citizens is the obligation of self-defense. This is one of the highest duties of a properly functioning democratic state. It requires the state to protect its citizens—indeed, anyone under its effective control—from any danger to their life, health, security, and well-being resulting from acts of violence, both in the short and long term. As a democratic state, it must fulfill this obligation with proper respect for the human dignity of all people.
The distinction between the external viewpoint and the internal viewpoint becomes apparent when one considers the difference between a state’s right of self-defense, which relates to what is beyond its confines, and a state’s obligation of self-defense, which relates to what is within its confines.
A state must protect its citizens from acts of violence, whether from a foreign state or from a terrorist or guerrilla organization. This obligation is binding whether its citizens are threatened by an external source or an internal source; whether the cause is criminal activity or political subversion. The obligation of self-defense is based is a simple rationale: A democratic state is characterized by a system of fair arrangements of civic life. In order to uphold this system, the state must preserve and defend the conditions that enable it to exist. The most important of these conditions, without which the citizen cannot enjoy the arrangements of democracy, is the very fact that the citizen is alive. A democratic state is therefore under an obligation to defend its citizens’ lives. (The same principle guides the state’s obligation to defend its citizens’ health, security, and well-being. For the purposes of this discussion, however, we will not deal with these considerations, and will restrict our analysis to life-threatening dangers.)14
A state’s obligation of self-defense grants each of its citizens the right to ask it the following question: “What have you done to protect me from a given violent threat that endangers my life?” (The citizen’s question.) Every citizen has the right to receive a satisfactory response to this question, a response that will refer him to the institutions, arrangements, policies, and actions that are charged with protecting him against the threat he has in mind.
A state is never exempt from its responsibility to give a satisfactory answer to the citizen’s question. This also holds true when the citizen is serving in the military, for the simple reason that soldiers are citizens. The state owes them a satisfactory answer just as much as it owes one to every other citizen. At times, the soldier’s question will be more challenging and the state’s answer will be more complex. Usually, a properly functioning state does not intentionally design a situation that will endanger the lives of its citizens. When a citizen is put in harm’s way, the state ought to defend that citizen in an effective manner. However, a citizen in military service may find himself in an extremely dangerous situation because the state has knowingly sent him to risk his life on its behalf. The soldier’s question will therefore be twofold: “First, what justification do you have for sending me into a life-threatening situation? Second, once I am in this situation, what are you doing to protect me from the danger I am in?”
We will not give a full account here of the state’s response to the soldier’s question. Such a response would have to justify conscription and reserve military service, insofar as they are rooted in the fair arrangements befitting a democratic state under present conditions. Instead, we will only mention one key component of Israel’s reply to the first part of the soldier’s question: “We have no choice,” or, in other words, “It is necessary to do so under the circumstances in which we find ourselves.” Because of the threats facing Israel and its citizens, the state cannot fulfill its obligation of self-defense without imposing conscription and reserve military service. When a threat to its security is not imminent, the state is required to develop its military capabilities. When the threat is imminent, it must exercise its military power. While preparing for conflict, the state places severe restrictions on the liberties of its uniformed citizens. When using military force, the state may send them into battle and thus endanger their lives. “Being forced by circumstances,” the state must impose conscription and reserve military service in order to fulfill its obligation of self defense.
Just war theory distinguishes between jus ad bellum and jus in bello, that is, between the moral justification for war—which we have already discussed—and the moral justification for actions taken during a war. The question of moral conduct in war, upon which we will now focus, must be evaluated according to the proper relationship between the state and what is outside of it (the external viewpoint), as well as between the state and its citizenry, including its soldiers (the internal viewpoint).
The distinction between jus ad bellum and jus in bello is manifest in the difference between the principle of macro-proportionality explained above, and the principle of micro-proportionality to which we now turn. Just war theory requires that all actions conform to the principle of proportionality, not only with regard to the decision to wage war or a military operation, but also in regards to specific military actions that endanger harmless enemy non-combatants. Similar to macro-proportionality, the principle of micro-proportionality concerns the question of whether or not the positive consequences of actions on one front morally justify the negative consequences on another.
It is easy to answer this question affirmatively when military action, in terms of both its goals and the means of achieving them, is unavoidable. In other words, the action is of military necessity in the strict sense of the word.15 The aim of such an action is to fulfill the state’s absolute duty to defend its citizens, given the dangers they face. The means employed to meet this requirement must be those which can most successfully fulfill the obligation to protect the citizens of the state as well as the human dignity of all people. When security conditions make it a necessity, military action accompanied by a genuine effort to minimize harm to enemy non-combatants can be justified under the micro-proportionality principle, because its positive consequences outweigh the negative ones.
Many military actions, however, do not fall strictly within the scope of military necessity. Often, the means required to carry out various actions are not, in a sense, unavoidable. Sometimes a military commander can choose between achieving the mission’s objectives through a difficult, slow, and problematic process, and doing so in a simple, fast, and easy way. Let us assume that these two options do not diverge in terms of the degree to which they endanger the lives of the soldiers involved, but only in terms of the length of time and the magnitude of the effort required to achieve the objective. The micro-proportionality principle demands that the positive consequences of employing the faster and less demanding option justify its negative consequences, namely, inflicting death, suffering, and destruction on enemy non-combatants. There is, obviously, no ready answer to the question of which option is preferable in some cases, because we usually possess only a partial picture of the facts, and have to take into account multiple factors and conditions. Take, for example, situations in which soldiers are required to carry out a specific mission and, afterward, must continue immediately to another urgent and difficult mission. If both missions are militarily necessary, then it is preferable for them to carry out the first mission in what they consider the easiest way, despite the fact that it may be more harmful to enemy non-combatants. On the other hand, if the soldiers do not expect the first assignment to be followed by another urgent and complex mission, then it is better for them to take the more difficult course of action, thus causing less harm to enemy non-combatants.
In order to know whether the micro-proportionality principle was upheld during Operation Cast Lead, it is necessary to be familiar in a full and detailed way with the specific actions taken during the operation. One cannot judge the operation in a serious, professional, and responsible manner without having adequate knowledge of the actions in question, and one should therefore resist the political and emotional temptation to do so.
Just war theory also demands that combatants respect the principle of distinction. This is a key principle in moral discussions of military actions, and it ought to be properly understood. A crude and superficial presentation of the principle of distinction often creates a slippery slope that leads to conclusions that cannot stand up to moral scrutiny. Therefore, we will exercise special caution in presenting and explaining it. Though the main elements of the principle of distinction were formulated with the classic concept of war in mind, they will be described here so as to be applicable to the “newer” context of fighting terrorism.16
The principle of distinction presents the combatant with three different standards of conduct to guide him 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 non-combatants who are not participating in the fighting and are not in proximity to enemy combatants; (c) a standard he should follow when facing a mixed group of combatants and non-combatants.
It is important to understand that we are not drawing a distinction between different kinds of people, but rather between different standards of conduct to be applied in different situations. The first standard of conduct permits soldiers to attack enemy combatants freely without considering the immediacy of the danger they pose—with the exception of wounded persons, prisoners of war, medical teams, and clergy.17 The second standard of conduct prohibits attacking enemy civilians who are not involved in hostilities and are not in proximity to enemy combatants. This restriction is absolute. Under certain conditions that we shall elucidate at length, the third standard of conduct permits attacking enemy combatants even if this endangers non-combatants in their vicinity.
The moral rationale behind the principle of distinction, which institutes multiple standards for military action, is self-evident: Military conduct that complies with the principle of distinction greatly reduces the horrors of war. Nevertheless, the question must be posed: Does this principle possess a deeper moral justification? Furthermore, is the framework of standards that it establishes of the highest moral standing, or is it simply superior to circumstances in the past, in which armies freely and equally harmed combatants and non-combatants? This question reveals a fundamental dispute that need not be resolved here in order to evaluate Operation Cast Lead.18 Even those—and I am among them—who hold that the standards of conduct delineated by the principle of distinction do not offer an ideal moral solution to the problem will nevertheless respect them, and seek to replace them with arrangements that are better both in theory and practice.
Operation Cast Lead mostly took place under conditions that required the application of the third standard of conduct, as well as considerations of micro-proportionality. The above-mentioned third standard enables us to answer the difficult question of what should be done when dealing with a group of people that includes both terrorists who pose a threat to the safety of Israelis and enemy non-combatants who do not threaten anyone. In a situation such as this, we face a dilemma: If the terrorists remain unharmed, they will continue to threaten Israelis. Attacking these terrorists, however, is likely to injure or even kill their non-combatant neighbors. Either way, people who should not be harmed and whom the circumstances of combat do not justify harming will be hurt.
The first way to attempt to resolve a dilemma is by altering the situation so that there will be no need to choose between alternatives, all of which involve undesirable consequences. In the situation we just described, it would be necessary to separate the people who pose a threat from those who do not. Efforts to do this may include scattering leaflets notifying people about the impending attacks, contacting specific places by phone in order to issue a warning, using non-lethal weapons, etc.19 If enemy combatants and non-combatants are successfully separated, there is no need to use the third standard of conduct, since the first standard will be employed against the terrorists and the second will protect their neighbors from being injured. The trouble is that, despite all efforts, such a separation is not always possible, frequently because warnings would alert the terrorists to a coming attack and thus make it more difficult to defend people from them. What, then, should be done when the dilemma cannot be eliminated, and soldiers are faced with a heterogeneous group of hostile terrorists and harmless non-combatants?
The third standard of conduct allows combatants in such situations to make a double effort: They should try to ensure that they strike the terrorists with high probability, and they should try to minimize harm to harmless civilians. Whenever these two demands are incompatible, the first is preferable to the second, but never overrides it entirely.
Discussions of just war theory relate the above-mentioned third standard of conduct to 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. Micro-proportionality is also a required condition.
Thus, civilian casualties—though an undesirable, painful, and troubling reality—are an acceptable outcome of a military action if they cannot be avoided. During Operation Cast Lead, it was claimed that it is prohibited to attack one hundred terrorists if one child might be harmed along with them. This claim is both morally indefensible and utterly irresponsible. No one wants to harm a child, but refraining from attacking one hundred terrorists because of the child they hold means allowing them to continue attacking Israeli civilians—including children. Is it justified to allow a child—or an adult, for that matter—to be harmed in Israel in order to avoid harming a child in Gaza?
Israeli historian Zeev Sternhell raised an equally weak argument when he severely criticized Operation Cast Lead and warned that “the Israelis… by wreaking havoc on a civilian population… remove themselves from the family of civilized Western nations.”20 In response to this claim, we should first recall that Israel was fighting Hamas, which is considered a terrorist organization by many among the “family of civilized Western nations.” Destruction, suffering, and casualties are, unfortunately, inevitable during urban warfare against such groups. The moral question, then, is whether the destruction, suffering, and casualties were justified in light of the continuing attacks by Hamas and other organizations against Israel and its citizens. The mere fact that destruction, suffering, and casualties were inflicted in the Gaza Strip in no way answers this question.
Secondly, if we wish to evaluate Israel’s place among the “family of civilized Western nations” in the context of “wreaking havoc in a civilian population,” we might learn a great deal from comparing Operation Cast Lead to Operation Phantom Fury, which the United States Marines launched in the city of Fallujah, west of Baghdad, during November and December 2004. According to a report published by the United States Army Combat Studies Institute, many of Fallujah’s 350,000 residents fled the city before t