4/18/2018 Editors Note: This article appeared in the Spring 2016 issue of inFOCUS Quarterly. We found it particularly relevant right now as Hamas attacks the border fence with Israel from behind a screen of civilians, raising questions about proportionality and the ethics of war.
Israel, like every 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 duty of 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; people may never be treated as mere objects or instruments and their liberty can be restricted only when there is a compelling justification. Note that this 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, 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 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 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 (the Spirit of IDF), 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, I presented an early draft of the first such code to then- IDF Chief of Staff LTG Ehud Barak and about 100 IDF commanders. No one objected because our proposal merely codified strongly entrenched parts of the IDF ethos.
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 seemingly 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 as well. 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 to include 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 terror that all rockets literally cause). This made 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 was hoped, would 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 endangered merely for the sake of deterrence.
Alleviating the “Calamities of War”
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”? Did the IDF uphold 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 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, in 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.
Combatants and Non-combatants
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 2014:
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? Does the presence of large numbers of non-combatants in the vicinity of a building 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 the “knock-on-the-roof” procedure of using 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 just in order 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, a staff “population officer” assessing the extent of probable collateral damage assists the commander. Human shields may be attacked together with the terrorists, but attempts should be made to minimize collateral damage among them, although those who act willingly are, in fact, accomplices of Hamas’ combatants. 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 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.
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. This is not a reasonable demand. First, 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.
The IDF approaches its legitimate task of self-defense with great restraint. It has been forced into wars with Hamas that are 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 of disproportionality and similar ones against Israel are grossly unfair.
Operation Protective Edge was investigated by a special group of high ranking retired military officers from the U.S.A., as well as Colombia, France, Germany, India, Italy, Spain and the U.K., headed by a former Chief of Staff of Germany’s Bundeswehr, General Klaus Naumann. Their report states, “Israel’s conduct in the 2014 Gaza conflict met and in some respects exceeded the highest standards we set for our own nations’ militaries.” Some members of the group expressed concern that Israel had set too high a standard for protecting civilians that their countries would be challenged to meet. The group’s conclusion was clear: “It is our view that Israel fought an exemplary campaign.”
Asa Kasher, Ph.D. is Laura Schwarz-Kipp Professor Emeritus of Professional Ethics and Philosophy of Practice at Tel Aviv University and Professor of Philosophy at the Shalem Academic Center in Jerusalem. This article was adapted from The Jewish Review of Books.