WAR AND MORALITY - By Ted Belman

I commissioned a legal opinion from Col. Bruce T Smith, on what restrictions or laws Israel is subject to in its self-defense and included it in my post Bomb Gaza. Win the War.

In sum: Israel is free to employ ALL munitions, tactics, equipment and personnel in her arsenal to defend herself against the outlaw Hamas terrorist organization. Short of the intentional targeting and murder of truly uninvolved and innocent civilians, Israel can (and should) operate as freely as she desires to protect her territorial sovereignty and the lives of her citizens.

What could be clearer.

Just the other day Ehud Barak said that he was going to ask the Justice Ministry for an opinion on the matter. This is a joke. There is no question that Barak has numerous legal opinions on the question throughout his career and now that he is Defense Minister must have viewed all the opinions given to his predecessor during the Lebanese War.

PM Olmert also muddied the waters when he said “Nobody has the right to preach morals to Israel for taking basic measures to defend itself.” He obviously is introducing a moral standard rather than a legal one. But the moral standard is a quagmire. A state owes a duty to its citizens to defend them. Fulfilling this duty is its highest value. A state is derelict if it compromises this duty by concern for a non-existent duty to avoid the death of enemy civilians. The only duty in war a state has is not to intentionally kill civilians but if civilians get killed as collateral damage even in disproportionate numbers it is still legal. The IDF must kill as many of its terrorists as it can with the least loss of its own. This is its duty and its morality.

As a numbers game, is it moral to cause one of your own to be killed to avoid killing ten of them? What about one hundred of them. In the last few days we killed 100 of them and lost 2 of ours. To my mind that is moral.

The US had to face this dilemma near the end of WWII. It understood that to invade Japan street by street (just as Israel must entertain invading Gaza street by street) would result in the loss of one million Americans and Japanese. So instead it gave a warning that if Japan didn’t unconditionally surrender its cities would be flattened. Japan refused and so two A-Bombs were dropped resulting the the deaths of 250,000 Japanese. Then Japan surrendered. In the result, far less people were killed.

The Middle East Forum recently published a major paper The Psychological Asymmetry of Islamist Warfare by Irwin J. Mansdorf and Mordechai Kedar.

The Israeli military faces a serious dilemma because it adheres to a specific moral code. Despite Arab propaganda to the contrary, Israeli military planners respect human life.2007-11-25 10:28:03 Tel Aviv University philosophy professor Asa Kasher and current Israel Defense Forces (IDF) intelligence chief Amos Yadlin write that, even when dealing with terrorists, Israeli soldiers conduct operations “in a manner that strictly protects human life and dignity by minimizing all collateral damage to individuals not directly involved in acts or activities of terror.”3f1a96fb6f64a7759dc1f9e6ad82c00e When trying to oust terrorists from Jenin in April 2002, for example, Israeli commanders decided to pursue a house-to-house ground strategy rather than employ the kind of airpower that would keep Israeli soldiers out of danger but would heighten the risk of collateral civilian casualties.1 This decision cost the lives, in one incident, of thirteen IDF soldiers in an ambush in the Hawashin district on April 9.

The Israeli judiciary also provides a check on the military. Israeli courts regularly impose restrictions on military tactics, despite the “price paid by the limitations put on the army’s actions.” Arab petitioners have a voice. Harvard law professor Alan Dershowitz wrote that Israel’s courts represent an “independent judiciary willing to stand up to its own government.” In 2004, the Israeli High Court of Justice ruled for petitioner Fatma al-Aju against the Israeli military in a case that called for the IDF to take into consideration obligations towards civilians, such as allowing medical teams to enter combat areas, and other humanitarian needs when planning military operations. The court also sided with Palestinian Arabs regarding the routing of Israel’s security barrier.0 Arab states have no such judicial independence nor are their leaderships subject to the rule of law.

Avi Dichter, Israel’s public security minister, spoke to this predicament in the context of the 2006 Israel-Hezbollah war: “You can in a short time; you can flood southern Lebanon with ground troops, and you can bomb villages without warning anyone, and it will be faster. But you’ll kill a lot more innocent people and suffer a lot more casualties, and we don’t intend to do either.” Maj.-Gen. Giora Eiland, Israel’s national security advisor from 2005 to 2006, explained the Israeli decision-making process: “We are forced to kill someone only when four conditions are met: Number one, there is no way to arrest someone. Number two, the target is important enough. Number three, we do it when we believe that we can guarantee very few civilian casualties. And number four, we do it when we believe that there is no way that we can delay or postpone this operation, something that we consider as a ticking bomb.”[16]

Israel is further harmed by the invocation of international law to implicate the legitimacy of its fight against its adversaries. International law is routinely misconstrued by the media commentators and non-specialists who cite it. Some journalists, for example, describe Israeli treatment of Palestinian terrorists as a contravention of international law. This is misleading. Hamas, Palestinian Islamic Jihad, and Al-Aqsa Martyrs’ Brigades, among others, fail to meet the criteria required for full protection under the Geneva conventions.[17] More broadly, human rights groups selectively quote international law but fail to note that “protected persons” (i.e., citizens under occupation) may not participate in violent activities against the occupying power.[18] Despite rhetoric to the contrary, there is no “right of resistance” under international law to either civilians under occupation or irregular forces that purport to challenge an occupier.[19]

These constraints are voluntarily imposed on Israel not only by others but by Israel itself. Furthermore such constraints flow from the Geneva Convention which Smith says doesn’t apply. Such thinking places our soldiers in greater jeopardy and is thus immoral.

Mansdorf and Kedar point out

Extensive reports by the Israeli NGO Monitor continue to document how Israeli counterattacks, which result in Palestinian causalities, spark criticism of Israel by human rights organizations whose condemnations either ignore or minimize Israel’s right to self-defense.[52] Although moral codes limit Israel’s range of action, such restraint does not prevent exaggerated accusations of Israeli “war crimes.”

I have trouble with his conclusions

How to balance military needs, international humanitarian law, and the reality of facing an enemy whose tactics are not restrained by accepted conventions are challenges to which Israel and other Western nations need to devote serious thought.

This suggests that there is international law which applies. That’s the first problem. As long on Israel doesn’t intentional kill civilians it can do everything else. Don’t muddy the waters.

In the short-term, Israel can take the lead by repeatedly and forcefully asserting the moral high ground by pointing out that civilian causalities are never intentional but, given the cynical tactics of the enemies it must fight, are regrettably inevitable. Israeli spokespersons must further assert that the culpability for civilian casualties lies with the terrorists who have deliberately chosen to wage war against Israel from within civilian populations precisely because of the propaganda benefits of such tactics.

Why is it “asserting the moral high ground” to say the civilian casualties weren’t intentional. Instead he should say that nothing Israel did was illegal because no civilian casualties were intentional.