Australia/Israel & Jewish Affairs Council

Essay: Moral Defence

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The ethics of "Protective Edge"

 

Asa Kasher

 

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 centre 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 neighbourhood 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 Defence 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-defence.
A state's right to defend itself when attacked is just as unquestionable as an individual's right to self-defence 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 duty of self-defence, 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-defence is what establishes the ends in question, namely an effective defence 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% 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.

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-defence. 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-defence. 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 neighbours, 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 minimise 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 minimise collateral damage, but they do not prohibit all collateral 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 US 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 from 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 minimise 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-defence.
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. 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 empanelled 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-defence 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 emphasised 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.

 

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 (both in Hebrew). © Jewish Review of Books (jewishreviewofbooks.com), reprinted by permission, all rights reserved.

 

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