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The Ethics of Protective Edge


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Even my loves are measured by wars,” wrote the Israeli poet Yehuda Amichai:

I am saying this happened after the Second

World War. We met a day before the

Six-Day War. I’ll never say

before the peace ’45–’48 or during

the peace ’56–’67.

I first heard air raid sirens during Israel’s 1948 War of Independence, and I heard them most recently in August, during Operation Protective Edge. In 1948, an Egyptian plane dropped bombs on the center of Rishon Lezion, where I then lived; more recently the threat took the familiar form of rockets launched by Hamas from the Gaza Strip and intercepted by the Iron Dome system far above my head in another town near Tel Aviv.

During the 1948 air raid, I saw my father, at the time an officer in a northern infantry brigade, treating a wounded female soldier, who died soon thereafter. She was the first casualty of war that I personally witnessed. Recently, my 17-year-old granddaughter Ahiraz encountered her first casualty when a soldier who had been a member of her neighborhood scout troop fell in the present operation.

As Amichai says, our lives in Israel are marked by the wars through which we have lived. In addition to living through the many wars, actions, and operations of the last 66 years as both a civilian and a soldier, I have also spent a great deal of time thinking about the ethics of fighting them, both in official capacities—when, for example, I led the writing of and co-authored the IDF’s code of ethics in the 1990s—and in an unofficial one, as a commentator.

As I write this, in late August, rockets are once again being fired from Gaza, and Operation Protective Edge has resumed after another brief ceasefire. Although—or perhaps precisely because—hostilities are ongoing, it is important to re-examine the challenges that terrorists in general and Hamas in particular pose to the Israel Defense Forces and to do so in light of first principles, both those of traditional  Just War doctrine and of specific Israeli military doctrine and values.

 

Israel, like every other state, upholds the right and duty of self-defense. A state’s right to defend itself when attacked is just as unquestionable as an individual’s right to self-defense when attacked. This right is invoked on the level of international relations and is confirmed by Just War doctrine, international law, and the United Nations charter, not to speak of common-sense ethics. The dutyof self-defense, on the other hand, is the responsibility that a state has to protect its citizens. Thus, Israel has both the international right and the domestic duty to respond when Hamas attacks its citizens.

The second fundamental principle of the State of Israel in general and of the IDF in particular is the duty to respect human dignity. This means that people may never be treated as mere objects or instruments. Their liberty can be restricted only when there is a compelling justification for doing so. Note that this second principle extends not only to citizens or other persons under Israel’s effective control, such as visitors or foreign workers, but also to Palestinians in Gaza who pose no terrorist threat. It even comes into play with respect to terrorists themselves when kill-or-capture options are carefully considered. Nonetheless, as I have argued at greater length elsewhere, no state has or should shoulder as much responsibility for the safety of enemy civilians as it does for its own people. Special duties belong to the essence of relationships within a family, a community, and a state.

These two fundamental principles of warfare are jointly applicable under all circumstances. During war or in the course of any other military activity, the principle of self-defense is what establishes the ends in question, namely an effective defense of the people and their state, while the second principle imposes restrictions on the means used in pursuit of those ends. Generally speaking, the latter principle requires ceaseless efforts to diminish or “alleviate the calamities of war,” to use a very old but still apt expression from the 1868 St. Petersburg Declaration Renouncing the Use, in Times of War, of Certain Explosive Projectiles.

Other democratic states share the basic principle of respect for human dignity and direct the activities of their military forces in accordance with it. It is, however, worthy of note that the IDF is the only military force of which I am aware that has included it among its explicitly stated values. Two of the values listed in its code of ethics, Ruach Tzahal, are those of respecting and preserving human life and the duty to retain “purity of arms,” that is to use the minimum force necessary to subdue the enemy. In the early 1990s, when I presented an early draft of the first such code to the IDF General Staff, then-Chief Lieutenant-General Ehud Barak and about 100 IDF groups of commanders, absolutely no one objected to the inclusion of these values. This is because they merely codified strongly entrenched parts of the IDF ethos. I have often been asked what is Jewish about the IDF code of ethics. In answering, I have always pointed to these two values, which are rooted in the Jewish religious and moral traditions of the sanctity of human life and of self-discipline.

 

It is not hard, however, to think of circumstances in which the principles of restraint and respect for human dignity in times of war might be disregarded. In his famous address to Parliament in 1940 Winston Churchill spoke of “Victory at all costs, victory in spite of all terror, victory however long and hard the road may be, for without victory there is no survival.” But as much as such statements may once have thrilled and heartened people, they are now obsolete, not only for ethical reasons but for strategic ones. To grasp the nature of the change that has taken place in the character of war and its end-state, at least for Israel, compare the consequences of the Six-Day War with the consequences of the Second Lebanon War. In 1967, our enemies’ military forces were essentially destroyed. In Lebanon, on the other hand, we significantly diminished the military force of Hezbollah, but it could and actually did continue launching rockets at northern Israel for a time.

In the “new” wars of recent decades, victory has been replaced by the ideal of successfully accomplishing given missions. The missions of Operation Protective Edge were defined in the course of the fighting as the elimination of the threat to Israel created by the Hamas offensive tunnels and the reduction if not elimination of the threat that Hamas’ rockets pose to most parts of Israel. Iron Dome batteries have intercepted over 90 percent of the rockets, but that means that one in 10 rockets remains a mortal danger to the targeted populations (not to speak of the literal terror that all rockets cause). This makes it necessary to destroy the makeshift factories in Gaza that produced the rockets, the magazines that stored them, and the batteries that fired them. The comprehensiveness of this response, it must be hoped, will deter Hamas from future attacks, but only as a by-product of the operation, not one of its military ends. Neither Israeli troops nor Palestinian civilians should be further endangered merely for the sake of deterrence.

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The clarity with which the IDF has approached its mission was brought home to me one day in early August, when I attended a meeting at the Rabin Base of the IDF General Staff, in Tel Aviv. At the entrance to the building in which the meeting was held I saw a bulletin board full of notes on Operation Protective Edge. At the top of it was a message concerning the operation from the commander of an IDF division, a major general. To the ends of the operation that I mentioned earlier he added a qualification I have not seen in the media coverage: “without escalation.” In The Art of War,Sun Tzu said that “if someone is victorious in battle and succeeds in attack but does not exploit the achievements, it is disastrous.” This is not the spirit in which Operation Protective Edge was undertaken, for good reasons.

 

Operation Protective Edge clearly falls within the bounds of legitimate self-defense. But was it also conducted in such a manner as to alleviate “the calamities of war”? In order to answer this all-important question, we must consider whether the IDF upheld its duty to respect human dignity by maintaining the traditional Just War principles of “distinction” and “proportionality.” The first principle distinguishes between combatants and civilians; the second insists that a military action expected to create collateral damage be taken only if the expected gain in military advantage justifies that damage.

States have usually accepted the principle of distinction between civilians and combatants for obvious reasons: “You don’t attack my non-combatant citizens and I won’t attack yours.” But what should be our attitude toward the principle of distinction when such reciprocity has disappeared? And how does one deal with an enemy that has eliminated any trace of the distinction between combatants and non-combatants, except for the purposes of propaganda? Hamas attacks Israelis indiscriminately and does so from residential areas and even from mosques, hospitals, and schools. It produces ammunition on a university campus and stores its rockets in mosques and UNRWA schools. Its commanders and their command-and-control system often operate out of the basement of a hospital, and its fighters do not fight in uniform (except, when useful, the IDF uniform). Hamas unscrupulously violates every norm in the book. How should Israel respond? The Israeli response is, I think, a deeply Jewish one. We must conduct our war against terrorists in accordance with our values, i.e., doctrines, procedures, rules of engagement, and commands that are compatible with fundamental Israeli principles, IDF values and principles, and international law, appropriately interpreted and extended.

In applying the ethical distinction between combatant and non-combatant, Israel faces two major problems. There is, first of all, the difficulty posed by Hamas’ overall approach to war. This “crass strategy” was well described by former President Bill Clinton on Indian television in July:

Hamas was perfectly well aware of what would happen if they started raining rockets into Israel. . . . They have a strategy designed to force Israel to kill their own civilians so that the rest of the world will condemn them.

What is Israel supposed to do in this situation? Does the presence of large numbers of non-combatants in the vicinity of a building that is directly involved in terrorist assaults on Israelis render that building immune to Israeli attack? The answer is, and must be, no. Israel cannot forfeit its ability to protect its citizens against attacks simply because terrorists hide behind non-combatants. If it did so, it would be giving up any right to self-defense. The IDF uses a variety of clear warning methods designed to remove non-combatants from the scene of battle, including the distribution of leaflets, personal phone calls, and the use of “roof-knocking” non-explosive missiles as a final warning shot.

A second, related question follows directly from these attempts to keep civilians out of harm’s way—call it “the soldier’s question.” One must bear in mind that most of the IDF combatants, in particular in the army and navy, are conscripts. As citizens in military uniform, they are entitled to ask the state, as well as the IDF and its commanders, whether they are being placed in greater jeopardy to save the lives of enemy non-combatants who have been repeatedly warned to leave the scene of battle. An affirmative answer to this question would be morally unacceptable.

 

When it is impossible to accomplish a military mission without endangering the lives of a terrorist’s non-terrorist neighbors, questions of proportionality come into play. The commander in charge of a particular military mission is usually the person best equipped to evaluate the military advantages of accomplishing it. In the IDF, the commander is assisted by a staff “population officer” in assessing the extent of probable collateral damage. Human shields may be attacked together with the terrorists, but attempts should be made to minimize collateral damage among them, even though those who act willingly are, in fact, accomplices of Hamas. In all such cases, as much compassion as possible under the circumstances must be shown without aborting the mission or raising the risk to Israeli soldiers.

The norms of proportionality make it incumbent upon a military commander to minimize collateral damage, but they do not prohibit allcollateral damage. No war has ever been fought without collateral damage. The requirement of the Just War doctrine is that the opposing forces do their utmost to avoid it. Israel does so, while Hamas’ strategy aims at the death of both Israeli and Palestinian non-combatants.

The precise number of Palestinian civilians who have died in Gaza during Operation Protective Edge (which as I write is ongoing) is not clear, but there is no doubt that it is in the hundreds and that each death was a tragedy. There is also no doubt that the culpability for those deaths lies with Hamas, which first sacrificed their well-being (building attack tunnels rather than schools and so on) and then their lives in its unremitting war against Israel. It is true that far fewer Israelis have died (as I write 64 soldiers and six civilians), but simply comparing numbers of casualties on both sides of the conflict is always a conceptual error in evaluating the justness of wars (many more German than U.S. civilians died in World War II), and this is especially the case in asymmetric ones.

Nonetheless, there are those who have argued that the IDF should strive just as hard to avoid collateral damage in Gaza as it (or Israeli internal security forces) would in, say, Tel Aviv. As Amos Yadlin and I have argued before, in an exchange with Michael Walzer and Avishai Margalit, this is not a reasonable demand. First of all, Israel, like every state, has a primary duty to protect its own people’s lives that is different than the responsibility it has to enemy non-combatants. Moreover, enemy territory such as Gaza is not under its effective control. Israel is bound by the Just War principles of distinction, proportionality, and its strong commitment to minimize the loss of life. But no state owes more than that to warned enemy citizens located in the vicinity of terrorists, and no democratic state would erase the distinction between military ethics and police ethics in this way. A demand to act in Gaza the same way we act in Tel Aviv would be tantamount to asking Israel to relinquish the duty of self-defense.

Some Israeli rabbis, on the other hand, have recently claimed that since the tradition of Just War doctrine began with Christian theologians such as St. Thomas Aquinas, the Jewish state need not worry about the principle of proportionality. Rabbis Ido Rechnitz and Elazar Goldshtein, for instance, have argued for a conception of war as a clash between two peoples, which would justify causing damage to non-combatants who are part of the same people as the combatants. This is outrageous and certainly immoral. In any case, it has never been Israel’s position. It is also a misreading of the Jewish tradition, as I see it, but that is another matter.

 

As was the case with Operation Cast Lead in 2008–2009, Operation Protective Edge has given rise to accusations that Israel acted indiscriminately and disproportionately, without regard for civilian non-combatants. A United Nations War Crimes Commission has been empaneled and many critics (as well, perhaps, as some of its members) are already certain of the conclusions at which it should arrive.

Such matters of politics, perception, and spin have not been my concern here. As I have argued, the IDF approaches its legitimate task of self-defense with great restraint. It has been forced into a war with Hamas that is both strategically and morally asymmetric. This does not mean that it has acted perfectly in every case (no army ever has), but it does mean that the charges against it are grossly unfair.

I have been concerned in this essay exclusively with the IDF’s conduct in war. Without taking sides in the ongoing political debates (on the future of various territories, Jerusalem, refugees, and so on), it must be emphasized in conclusion that it is also the moral duty of a democracy to pursue peace. Peace is, as it were, the ultimate Iron Dome, the best protection for combatants and non-combatants on both sides of the border from the calamities of war.

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About the Author

Asa Kasher is Laura Schwarz-Kipp Professor Emeritus of Professional Ethics and Philosophy of Practice at Tel Aviv University. He led the writing of the first IDF code of ethics and many additional documents examining ethical issues. He won the Israel Prize in 2000 for his contributions to philosophy. His recent books include Military Ethics, Judaism and Idolatry, and A Small Book on the Meaning of Life (all in Hebrew).

Comments

gwhepner on September 17, 2014 at 4:54 pm
WHAT HAPPENDED DURING THE SECOND WORLD WAR

While the Second World War, one that the Jewish people sadly lost,
was raging, it occurred.
I refer to, if you didn’t realize, the Holocaust,
the cause of which is blurred
by those who don’t admit it rationale was killing all the Jews,
a rationale that’s not
been obsoleted by those whom it’s not now PC to accuse
of wishing that the plot
had been successful, and the Jews had vanished from the earth, instead
of fighting for a state
in wars where unlike World War number Two they can’t by foes be led
like sheep to slaughter. Hate
of Jews that was a rationale of World War Two was not defeated,
as Jews were when like cattle
six million of them to their death were led, but won’t be obsoleted,
since heirs now fight the battle
that they could not while World War number Two was being fought, and they,
by allied forces spurned,
while the allied future winners of the war all looked away,
were shot and gassed and burned.



9/17/14 #15305
Stephan Cotton on September 17, 2014 at 6:41 pm
Professor Kasher makes interesting points, but it seems he misses three vital ones. First, the "roof knocking" is hardly a means of limiting civilian casualties in the course of achieving a military goal. That conclusion assumes that the combatants who may (or may not, for that matter) be in the building won't hear the knock. The practical effect of this tactic and of the bombardment overall is retribution, which, if that was the goal, was successful in that some 44% of Gaza has been rendered uninhabitable.

Secondly, I've read that the "safe range" for firing in the vicinity of friendly troops is some 250 meters. As I New Yorker, I put this in local terms, which means it's about three city blocks. In an area as densely populated as Gaza, I can't imagine these weapons can be used in a manner that a) kills combatants and b) limits damage to non-combatants.

Finally, from the numbers I've found, the monthly number of Gazan rockets into Israel have averaged in the low double digits until this summer when Netanyahu ordered the roundup of some 250 Hamas politicians in retribution for the murder of the Israeli students hitch-hiking in Palestine. At the time, Hamas was in such disfavor among Palestinians that they had gone begging to Fatah for a partnership, one that overwhelmingly favored the West Bank government.

A sensible approach over the past year would have been to do all possible to support the unification government, strengthening Fatah's credibility and, for all practical purposes, ending Hamas' effectiveness. instead, Netanyahu played into Hamas' hand by launching Operation Protective Edge.

I can see only two reasons for his doing so. One is that he isn't making rational decisions, which I doubt is the case. The second is that he is not interested in a peaceful conclusion to the conflict with the Palestinians, at least until Israel has appropriated all of the West Bank. This view is reinforced by the "land grab" of recent days.
Gideon Weisz on September 21, 2014 at 1:53 pm
Always good to see an article by Professor Kasher. Well done. But a niggle about "the soldier's question": Kasher writes, "As citizens in military uniform, they are entitled to ask the state, as well as the IDF and its commanders, whether they are being placed in greater jeopardy to save the lives of enemy non-combatants who have been repeatedly warned to leave the scene of battle. An affirmative answer to this question would be morally unacceptable." Unfortunately,the fact is that (with the exception of a simple missile attack), these warnings do put the soldiers at greater jeopardy because foregoing the element of surprise gives the enemy time to organize defenses, booby traps, plans to emerge from particular tunnels when IDF soldiers are in range, etc. This might have (and reportedly did) cost many of the lives that were lost. That is a price that was being paid to enable the care that the IDF took to avoid unnecessary harm to enemy civilians.
ddapriori on October 8, 2014 at 5:55 pm
This is astonishing hypocrisy.

Palestinians are no more "terrorist" than the IDF which seeks to terrorize Palestinians in the West Bank on a daily basis. If states are permitted self-defense, then so is Gaza and the rockets from there are self-defense against the Zionist theft of property.

And the argument about superior duty to one's own people is incompatibility with most of modern humanism, that is, it is typically tribal. The Palestinian defense does not "force" anything on Israel. Rather than slaughtering Palestinians by the thousands, Israel could easily choose to address the grievances of these people. This option is open but not taken. Given an alternative option, it cannot be said that Israel is "forced" to do anything: It has chosen to do thus and so! (The idea of the victim forcing the criminal is very popular in prisons everywhere. Nobody in jail is guilty as, if you ask them, the victims forced them all to perpetrate their crimes. Ask them.) The sanctity of human life enshrined in the IDF code is a ruse because the IDF extends no such sanctity to any human life other than Jewish human life. What if Warsaw ghetto fighters had rockets they could send to Berlin? Would they be "terrorists?" Would the German Army then be justified in defending its people against these terrorists by leveling the ghetto, just as IDF has done? Surely anyone can see that Kasher's ideas are vapid and empty.

When it comes right down to it, everything argued here is simply Jewish supremacism, the right of Jews to do what they want and excuse it as they will.
ddapriori on October 8, 2014 at 5:58 pm
Poor Israel, forced to appropriate all of the West Bank. Are you geniuses actually alive and thinking?
johnbibbyjohnbibby on December 31, 2014 at 4:09 am
Does Palestine have any rights of self defence, or does this apply only to Israel?

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