Monday, July 13, 2015

Don’t muddy the waters.
 Ted Belman  3-4-2008

“Im ba l’hargekha, hashkem l’hargo,” “If someone comes to kill you, rise up and kill him (first).”

I asked Col. Bruce T Smith for a legal opinion on what restrictions or laws Israel is subject to in its self defense and included the opinion 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 toPROTECT 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 hisCAREER 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 killing enemy civilians. The only duty in war a state has is not to intentionally kill civilians. If civilians get killed as collateral damage even in disproportionateNUMBERS, it is still legal. The IDF must kill as many of its terrorists as it can with the least casualties of its own. This is its duty and its morality.
As a numbers game, is it moral to cause one ofYOUR 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.[6] 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 strictlyPROTECTS human life and dignity by minimizing all collateral damage to individuals not directly involved in acts or activities of terror.“[7] When trying to oust terrorists from Jenin in April 2002, for example, Israeli commanders decided to pursue a house-to-house ground strategy rather thanEMPLOY the kind of airpower that would keep Israeli soldiers out of danger but would heighten the risk of collateral civilian casualties.[8] This decision cost the lives, in one incident, of thirteen IDF soldiers in an ambush in the Hawashin district on April 9.[9]
While it is right to minimize collateral damage, not at the expense of your own soldiers.
The Israeli judiciary also provides aCHECK on the military. Israeli courts regularly impose restrictions on military tactics, despite the “price paid by the limitations put on the army’s actions.”[10] 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.”[11] 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.[12] The court also sided with Palestinian Arabs regarding the routing of Israel’sSECURITY barrier.[13] Arab states have no such judicial independence nor are their leaderships subject to the rule of law.
I am totally against involving the courts to impose restrictions on the IDF which result in a price being paid. This is theBUSINESS of the military and not the courts. When the High Court had to decide on the fence location it used the rule of proportionality to balance the interests of Israel’sSECURITY against the inconvenience to the Arabs. How do you give the nod to inconvenience over security?
[..] Avi Dichter, Israel’s public security minister, spoke to this predicament in the context of the 2006 Israel-Hezbollah war: “You can [conduct military operations] 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.”[15] 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]
What is missing from the foregoing is the endangerment of our own soldiers. The latterQUOTE applies to something like a police operation but in war it doesn’t apply at all. Eiland starts his remarks by saying “we are forced to kill someone only when four conditions are met.” This is oddly put. Now I fullyAGREE that Israel should minimize collateral damage when it can but it should not put its own soldiers at risk to do so. This is not a game or a police action even. It is war.
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 fullPROTECTION under the Geneva conventions.[17]
More broadly, human rights groupsSELECTIVELY 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 argues 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 MonitorCONTINUE 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.”
True enough but I have trouble with the following conclusions.
How toBALANCE 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 humanitarian law which applies. That’s the firstERROR. 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 there was no intentional killing of civilians.
Alan Dershowitz makes a point of saying that all Palestinians are responsible for the actions of theirGOVERNMENT because they elected it. And so do I. There are no “innocent” Palestinians.

 Comments to Don’t muddy the waters.

 Jerry Gordon says:  March 3, 2008 at 9:52 pm
Irwin Mansdorf is aNOTED American Israeli psychologist who has written extensively about the psycho dynamics of what Hebrew University Islamic scholar, Raphi Israeli terms ‘Islamokazis’. Israel when confronted with a moral dilemma of combating existential threats from Iranian-supplied rockets thrown at major cities and towns in the South and Western Negev cannot afford the luxury of moralizing with a non-state enemy who uses its own population as human shields-a violation of the Geneva Convention. There is nothing agonizing nor moralizing about the law of land warfare. Israel is fully justified, without obtaining a High Court ruling, to pursue a military action to clean out and destroy the rocket arsenal and terrorists from Hamas, Palestinian Islamic Jihad and Fatah’s Al Aksa Brigades engaged in a strategy borrowed from the ‘playbook’ of Hezbollah’s summer 2006 campaign on Israel’s northern border. Belman’s comments and those of Col. Smith elucidate what are the rules of engagement. Israel and Msndorf’s ‘problem’ has much to do with the conflation of the IDF military doctrine of ‘purity of arms’. One can appreciate that tradition. But in this era of assymetrical warfare with Islamist fanatics, the rule should be kill first. That is the rubric from the Talmud emblazoned over every mess hall door in IDF training camps.
Let’sGO BACK in history to something that Ted has referred to, the end of the War against Japan in WWII. In early 1945, General Curtis ‘grommet’ LeMay was sent to the Pacific from the US 8th Air Force in England to introduce a new air war strategy: incinerating Japanese urban areas with low altitude B-29 incendiary raids. Whole precincts of Tokyo and other major cities were set ablaze in fire storms and hundreds of thousands killed in the conflagrations that consumed the wooden structures and its residents. That didn’t bend the will of the Japanese Militarists and the population. After the bloody assaults on Iwo Jima and Okinawa in the spring of 1945, US military planners in Operation Downfall estimated that it could result in upwards of one million casualties in the invasion of the Japanese home islands. The message of the successful A-Bomb test carried to President Truman at Potsdam was that those massive casualties in the Japanese invasion plan could be avoided. The success of the Trinity Site Atomic bomb test in New Mexico on July 16, 1945, led to the dropping of the two atomic bombs on Hiroshima and Nagasaki in August that in combination with the Soviet invasion in Manchuria forced the Japanese Emperor Hirohito to sue for peace over the objection of the militarists.
Israel does not have the equivalent of an ‘Emperor Hirohito’ among the Palestinian leadership to sue for peace. Instead it is confronted with fanatical Islamist enemies who seek to destroy Israel.