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|Operation Cast Lead and the Ethics of Just War, By Asa Kasher|
[*] Voir : "Giving the Finger to Accuracy".
While the political and military achievements of the operation are contested, the damage it left in its wake is undisputed. Ten Israeli soldiers and three Israeli civilians were killed. Due to the asymmetry of forces, the Palestinian side sustained especially heavy casualties: According to Palestinian sources in the
The destruction caused by the Gaza operation, as well as the disturbing pictures of it broadcast around the world, incited violent international protest and a public debate within Israel itself. The most outspoken critics of the operation accused the Jewish state of engaging in excessive and indiscriminate aggression, as well as committing war crimes against the Palestinians. More moderate commentators questioned the necessity of some of the
Though understandable and perhaps inevitable, this heated debate is unfortunately founded, in most cases, on insufficient and flawed information, semantic confusion, and the misuse of moral principles. The main purpose of this article, written by one of
A properly functioning state should plan its actions carefully, execute them appropriately, and examine them scrupulously afterwards. A military operation is an important and complex act of state, and it is not exempt from proper planning, execution, and examination.
Whenever a state conducts a military operation outside of its borders, it engages in a political action. In a democratic state, the government must rigorously examine the political considerations and decisions that led to this action. A military operation also involves the deployment of armed forces and the cooperation of intelligence agencies. Each of these institutions is also expected to undertake a professional, methodical, and searching post-hoc inquiry into the considerations taken and decisions made in every professional locus of control that has had an effect on the operationincluding those of operative planning, tactical performance, and intelligence. A responsible inquiry into these loci may then lead to a professional investigation of other loci of influence, such as those involved in capability building (i.e., developing military doctrines, practical training, etc.).
These political investigations and professional inquiries must pay special attention to every aspect of the operation that is related to moral and ethical values. Decisions, commands, and actions should be closely examined in order to determine whether they appropriately manifested the moral principles of the State of Israel, the ethics of the IDF and the General Security Service, and the laws to which
There are two stages to such an analysis: First, one must determine the requirements that every military operation must fulfill in light of Israel’s moral principles as a Jewish and democratic state;1 the ethical codes of the IDF and the General Security Service;2 the laws that Israel must observe as a state in which the rule of law prevails; and the laws it must observe as a properly functioning state subject to both jus gentium (the law of nations, i.e., international norms which apply to all states) and jus inter gentes (the law between the peoples, i.e., treaties and agreements entered into by sovereign nations). Second, one must ascertain whether the decisions made, orders issued, and actions performed in the course of the operation fulfilled these moral, ethical, and legal requirements. In order to do this, one needs as reliable, full, thorough, and accurate an account of the relevant facts as possible. It is impossible to complete any moral, ethical, or legal evaluation of an operation before an investigation of its political background and an inquiry into the military’s professional performance are completed. During and after Operation Cast Lead, many people, both in
For the time being, then, we should focus on the first stage of investigation mentioned above and restrict ourselves to examining the moral, ethical, and legal requirements to which decisionmakers and participants in military actions are bound. These requirements predate and are not dependant on the specific facts of Operation Cast Lead. However, though we are not in a position to provide a comprehensive answer to all the questions raised about what took place in the Gaza Strip during January 2009, the data collected so far permits us to conclude that a significant part of the criticism directed at Israel and the IDF during and after the operation was, to say the least, based on flimsy evidence.
The first factor one needs to consider when analyzing a military operation undertaken by a democratic state outside its own borders is the political decision to initiate the operation, and the circumstances under which this decision was taken. In order to evaluate such a decision properly, it is necessary to do so from two separate viewpoints: external and internal.
We will begin with the external viewpoint. From this point of view, we will morally evaluate the political decision to wage war or carry out a military operation based on considerations of international relations. The question we face at this point is the following: Does a state have a moral justification for taking military action against another state under the circumstances in question? We can pose similar questions about a military action against a non-state entity with a ruling body that, to a significant extent, effectively governs a specific territory (such as Hamas in the Gaza Strip); an organization that operates from within the territory of another state, and enjoys so much freedom of action that it effectively governs part of that state (such as Hezbollah in Southern Lebanon); and finally, an organization that operates from within the territory of a non-state entity (such as terrorist organizations operating in areas controlled by the Palestinian Authority). Even at this early stage of the discussion, it is already necessary to note not only the similarities between these situations, but also the differences between them, each of which requires a separate moral discussion.
The basis for any such discussion is the moral conception known as just war theory.3 This term does not designate a doctrine that has a single, authoritative form or interpretation. It is, rather, a family of concepts (e.g., combatants or proportionality), distinctions (e.g., between military and nonmilitary targets), and principles (e.g., that it is forbidden to harm enemy soldiers once they have surrendered). Moreover, scholars of just war theory often disagree about the meanings of its concepts, the considerations underlying its distinctions, and the specific consequences of its practical principles.4 Over time, however, just war theory has developed an accepted set of eight principles, which form the basis of the standard moral discussion of war.5 In addition, a framework of international law has emerged that constitutes the basis of customary legal discourse on the subject.6
Just war theory, as expressed in its moral principles and in international law, makes certain assumptions about the warring parties and the circumstances of their conflict. Usually, it is assumed that the warring parties are sovereign states and that, most of the time, circumstances permit a differentiation between combatants and non-combatants that is not too complicated. These assumptions, however, do not hold with regard to
The first principle of just war theory in the circumstances under discussion is the principle of just cause. A state must have a compelling justification for taking military action against a state, entity, organization, or individuals outside its borders. From a moral standpoint, the only compelling justification for such action is self-defense. A state, therefore, can only justify military action if it can demonstrate that it acted on the basis of its right to self-defense.
No one can honestly dispute that, for years, Hamas, Islamic Jihad, and other terrorist organizations in
Nevertheless, just war theory makes it clear that it is not enough for military action to be justified on the basis of self-defense. Though self-defense is a necessary condition for the justification of war, it is not a sufficient one. The moral considerations behind this assertion are clear: Military action poses a grave danger to human life, health, well-being, property, and liberty. If effective self-defense can be guaranteed by other means, this is clearly preferable to a course of action that involves destruction, suffering, and death. The use of military force is, therefore, justified only if all other alternatives have been exhausted. In just war theory, this is known as the principle of last resort.
Was the decision to launch Operation Cast Lead justified under the principle of last resort?
In order to answer this question in a responsible manner, it is necessary to understand the threats facing
The continued rocket attacks on
Some people claim that a peace agreement between
There are those who call on
While a state entering into a war or embarking on a military operation must do so in self-defense and in the absence of other alternatives, these conditions alone do not suffice according to just war theory. A state may have other intentionshistorical revenge, for examplewhich can alter the course of the war or its political aftermath, and which are not morally justified. Such motives can lead to excessive death and destruction, beyond what self-defense would require. The principle of right intention demands that a state not only wage war in a just cause, but that all of its intentions, on every level, be equally justifiable.
The aims of Operation Cast Lead included deterring Hamas and other terrorist organizations from launching rockets into
The best method of achieving deterrence in a morally acceptable way is to achieve it as a side effect of some other action. Targeted killings of terrorists, for instance, not only offer immediate protection to a state’s citizens. They also achieve deterrence, because the enemy becomes aware of the state’s ability to detect threatening activities, identify the perpetrators and their whereabouts, and attack them. Deterrence is not the primary goal of targeted killings, however, but rather a welcome side effect. The intention to deter the enemy as a side effect of military activity constitutes a right intention.9
The difference between deterrence as a goal and deterrence as a side effect is essential. An operation whose goal is to thwart terrorist attacks should not be influenced by the likely possibility that it will also create deterrence. Theoretically, an operation can include the use of measures whose purpose is not to foil terrorist attacks but only to create deterrence. To the extent that injury or even death is caused as a result of these measures, they are morally unjustified. For example, killing someone who is essentially harmless in order to deter others from possibly posing a threat cannot be morally justified. A democratic state is required to protect human dignity as such. It cannot use human beings as mere tools to create deterrence. Human beings are not tools to be used.
Generally speaking, it is reasonable to ascribe to Operation Cast Lead the intention of achieving deterrence as a side effect of an act of self-defense. Likewise, descriptions of the operation as disproportionate in the Israeli and international media are problematic, because they appear to presume that deterrence was the main purpose of the operation, rather than a side effect of it. A description of the operation in terms of powerful response is more appropriate.10
One of the lesser-known principles of just war theory prohibits a state from embarking on a military campaign if it does not have a reasonable chance of winning it. War, by definition, involves the loss of human life, as well as suffering and destruction on a massive scale. The probability of success principle prohibits taking military actionwhich inevitably involves death, suffering, and destructionif it is certain to fail. Therefore, it is impossible to justify a war that serves only a symbolic purpose.
This principle deserves our renewed attention in regard to military actions such as the Second Lebanon War and Operation Cast Lead, which were undertaken against guerrilla, terrorist, or terrorist guerrilla organizations. In conflicts of this kind, the definition of victory is different from that of classic wars between states and their armies. As we witnessed in the Second Lebanon War, a state’s military action against a terrorist guerrilla organization can kill many of the group’s combatants and destroy a significant part of its infrastructure without eliminating its ability to carry out terrorist activities and attack the state’s citizens. During Operation Cast Lead, we realized that the same holds true in conflicts with urban terrorist organizations.
While the term victory may be emotionally satisfying, it is problematic from a professional military point of view. This is because it does not enable a clear distinction between the goals of a classic war and the goals of different kinds of wars or campaigns such as Operation Cast Lead. In these new contexts for the use of military force, it is best to replace the elusive term victory with the notion of achieving specific goals by accomplishing the missions. This concept is easier to evaluate with precision and to use in professional employment of military forces.11
The primary goal of Operation Cast Lead was described as improving the security situation in the areas of the state under rocket attack. This is a proper objective, not only because it stems from the right to self-defense, but also because it is attainable. Improving the situation does not mean the elimination of all threats. An improvement can be attained by killing many terrorists, destroying much of their available weaponry, and causing heavy damage to their armaments infrastructure.
Proportionalitya term raised many times in the context of Operation Cast Leadactually refers to two different principles of just war theory: The principle of macro-proportionality, which applies to the overall decision to take military action, and the principle of micro-proportionality, which applies to specific military actions. I will now turn to the first principle, and address micro-proportionality later in our discussion.
In order to clarify the issue, we must examine some of the commonplace accusations of disproportionality made regarding the Second Lebanon War and Operation Cast Lead. The most common charge raised by critics of these campaigns concerns the number of casualties. They argue that, since very few people are killed by rocket attacks on
Furthermore, no principle of proportionality entails a demand for numerical equivalence. A moral evaluation of proportionality in military action should focus on the question of whether the positive results of the operation on one front outweigh the negative results on another. Macro-proportionality requires that this condition be met. The positive results of the operation should be measured in terms of the protection it has provided to the state and its citizens at the conclusion of the military campaign and its aftermath. The negative results should be measured in terms of the death, suffering, and destruction inflicted on the other side. Once again, this is not a numerical comparison, but rather an assessment of existing threats and the measures that must be taken in order to avert them.
Let us examine, for example, the circumstances of the outbreak of the Second Lebanon War. During the first stage of the war, Hezbollah fighters killed eight Israeli soldiers and kidnapped two who died of their wounds. At this point,
Similar charges were made about Operation Cast Lead. For example, the Spanish author Javier Marםas told the Israeli newspaper Haaretz that
Moreover, accusations that
Accusations of disproportionality in war often refer to the use of excessive force. To justify these claims, one would need to offer alternatives in which the use of force (a) would not be excessive; (b) would be effective, i.e., provide the required protection from specific threats;13 and (c) would be available when the circumstances require it. Considering these conditions, it is not surprising that we have yet to encounter any defensible criticisms of the use of overwhelming force. Indeed, they are quite difficult to make from the comfort of one’s armchair.
So far, we have discussed the principles of just war theory from the external viewpoint, which focuses on the interaction between the state and outside bodies and forces. Now we will turn to the internal viewpoint, which is concerned with the relations between the state, its institutions and basic arrangements, and the citizenry.
The most important aspect of the relationship between a state and its citizens is the obligation of self-defense. This is one of the highest duties of a properly functioning democratic state. It requires the state to protect its citizensindeed, anyone under its effective controlfrom any danger to their life, health, security, and well-being resulting from acts of violence, both in the short and long term. As a democratic state, it must fulfill this obligation with proper respect for the human dignity of all people.
The distinction between the external viewpoint and the internal viewpoint becomes apparent when one considers the difference between a state’s right of self-defense, which relates to what is beyond its confines, and a state’s obligation of self-defense, which relates to what is within its confines.
A state must protect its citizens from acts of violence, whether from a foreign state or from a terrorist or guerrilla organization. This obligation is binding whether its citizens are threatened by an external source or an internal source; whether the cause is criminal activity or political subversion. The obligation of self-defense is based is a simple rationale: A democratic state is characterized by a system of fair arrangements of civic life. In order to uphold this system, the state must preserve and defend the conditions that enable it to exist. The most important of these conditions, without which the citizen cannot enjoy the arrangements of democracy, is the very fact that the citizen is alive. A democratic state is therefore under an obligation to defend its citizens’ lives. (The same principle guides the state’s obligation to defend its citizens’ health, security, and well-being. For the purposes of this discussion, however, we will not deal with these considerations, and will restrict our analysis to life-threatening dangers.)14
A state’s obligation of self-defense grants each of its citizens the right to ask it the following question: What have you done to protect me from a given violent threat that endangers my life? (The citizen’s question.) Every citizen has the right to receive a satisfactory response to this question, a response that will refer him to the institutions, arrangements, policies, and actions that are charged with protecting him against the threat he has in mind.
A state is never exempt from its responsibility to give a satisfactory answer to the citizen’s question. This also holds true when the citizen is serving in the military, for the simple reason that soldiers are citizens. The state owes them a satisfactory answer just as much as it owes one to every other citizen. At times, the soldier’s question will be more challenging and the state’s answer will be more complex. Usually, a properly functioning state does not intentionally design a situation that will endanger the lives of its citizens. When a citizen is put in harm’s way, the state ought to defend that citizen in an effective manner. However, a citizen in military service may find himself in an extremely dangerous situation because the state has knowingly sent him to risk his life on its behalf. The soldier’s question will therefore be twofold: First, what justification do you have for sending me into a life-threatening situation? Second, once I am in this situation, what are you doing to protect me from the danger I am in?
We will not give a full account here of the state’s response to the soldier’s question. Such a response would have to justify conscription and reserve military service, insofar as they are rooted in the fair arrangements befitting a democratic state under present conditions. Instead, we will only mention one key component of
Just war theory distinguishes between jus ad bellum and jus in
The distinction between jus ad bellum and jus in
It is easy to answer this question affirmatively when military action, in terms of both its goals and the means of achieving them, is unavoidable. In other words, the action is of military necessity in the strict sense of the word.15 The aim of such an action is to fulfill the state’s absolute duty to defend its citizens, given the dangers they face. The means employed to meet this requirement must be those which can most successfully fulfill the obligation to protect the citizens of the state as well as the human dignity of all people. When security conditions make it a necessity, military action accompanied by a genuine effort to minimize harm to enemy non-combatants can be justified under the micro-proportionality principle, because its positive consequences outweigh the negative ones.
Many military actions, however, do not fall strictly within the scope of military necessity. Often, the means required to carry out various actions are not, in a sense, unavoidable. Sometimes a military commander can choose between achieving the mission’s objectives through a difficult, slow, and problematic process, and doing so in a simple, fast, and easy way. Let us assume that these two options do not diverge in terms of the degree to which they endanger the lives of the soldiers involved, but only in terms of the length of time and the magnitude of the effort required to achieve the objective. The micro-proportionality principle demands that the positive consequences of employing the faster and less demanding option justify its negative consequences, namely, inflicting death, suffering, and destruction on enemy non-combatants. There is, obviously, no ready answer to the question of which option is preferable in some cases, because we usually possess only a partial picture of the facts, and have to take into account multiple factors and conditions. Take, for example, situations in which soldiers are required to carry out a specific mission and, afterward, must continue immediately to another urgent and difficult mission. If both missions are militarily necessary, then it is preferable for them to carry out the first mission in what they consider the easiest way, despite the fact that it may be more harmful to enemy non-combatants. On the other hand, if the soldiers do not expect the first assignment to be followed by another urgent and complex mission, then it is better for them to take the more difficult course of action, thus causing less harm to enemy non-combatants.
In order to know whether the micro-proportionality principle was upheld during Operation Cast Lead, it is necessary to be familiar in a full and detailed way with the specific actions taken during the operation. One cannot judge the operation in a serious, professional, and responsible manner without having adequate knowledge of the actions in question, and one should therefore resist the political and emotional temptation to do so.
Just war theory also demands that combatants respect the principle of distinction. This is a key principle in moral discussions of military actions, and it ought to be properly understood. A crude and superficial presentation of the principle of distinction often creates a slippery slope that leads to conclusions that cannot stand up to moral scrutiny. Therefore, we will exercise special caution in presenting and explaining it. Though the main elements of the principle of distinction were formulated with the classic concept of war in mind, they will be described here so as to be applicable to the newer context of fighting terrorism.16
The principle of distinction presents the combatant with three different standards of conduct to guide him in any military action: (a) a standard he should follow when facing a group comprising enemy combatants and no one else; (b) a standard he should follow when facing a group of enemy non-combatants who are not participating in the fighting and are not in proximity to enemy combatants; (c) a standard he should follow when facing a mixed group of combatants and non-combatants.
It is important to understand that we are not drawing a distinction between different kinds of people, but rather between different standards of conduct to be applied in different situations. The first standard of conduct permits soldiers to attack enemy combatants freely without considering the immediacy of the danger they posewith the exception of wounded persons, prisoners of war, medical teams, and clergy.17 The second standard of conduct prohibits attacking enemy civilians who are not involved in hostilities and are not in proximity to enemy combatants. This restriction is absolute. Under certain conditions that we shall elucidate at length, the third standard of conduct permits attacking enemy combatants even if this endangers non-combatants in their vicinity.
The moral rationale behind the principle of distinction, which institutes multiple standards for military action, is self-evident: Military conduct that complies with the principle of distinction greatly reduces the horrors of war. Nevertheless, the question must be posed: Does this principle possess a deeper moral justification? Furthermore, is the framework of standards that it establishes of the highest moral standing, or is it simply superior to circumstances in the past, in which armies freely and equally harmed combatants and non-combatants? This question reveals a fundamental dispute that need not be resolved here in order to evaluate Operation Cast Lead.18 Even thoseand I am among themwho hold that the standards of conduct delineated by the principle of distinction do not offer an ideal moral solution to the problem will nevertheless respect them, and seek to replace them with arrangements that are better both in theory and practice.
Operation Cast Lead mostly took place under conditions that required the application of the third standard of conduct, as well as considerations of micro-proportionality. The above-mentioned third standard enables us to answer the difficult question of what should be done when dealing with a group of people that includes both terrorists who pose a threat to the safety of Israelis and enemy non-combatants who do not threaten anyone. In a situation such as this, we face a dilemma: If the terrorists remain unharmed, they will continue to threaten Israelis. Attacking these terrorists, however, is likely to injure or even kill their non-combatant neighbors. Either way, people who should not be harmed and whom the circumstances of combat do not justify harming will be hurt.
The first way to attempt to resolve a dilemma is by altering the situation so that there will be no need to choose between alternatives, all of which involve undesirable consequences. In the situation we just described, it would be necessary to separate the people who pose a threat from those who do not. Efforts to do this may include scattering leaflets notifying people about the impending attacks, contacting specific places by phone in order to issue a warning, using non-lethal weapons, etc.19 If enemy combatants and non-combatants are successfully separated, there is no need to use the third standard of conduct, since the first standard will be employed against the terrorists and the second will protect their neighbors from being injured. The trouble is that, despite all efforts, such a separation is not always possible, frequently because warnings would alert the terrorists to a coming attack and thus make it more difficult to defend people from them. What, then, should be done when the dilemma cannot be eliminated, and soldiers are faced with a heterogeneous group of hostile terrorists and harmless non-combatants?
The third standard of conduct allows combatants in such situations to make a double effort: They should try to ensure that they strike the terrorists with high probability, and they should try to minimize harm to harmless civilians. Whenever these two demands are incompatible, the first is preferable to the second, but never overrides it entirely.
Discussions of just war theory relate the above-mentioned third standard of conduct to the double effect principle. According to this principle, when we are seeking a goal that is morally justified in and of itself, then it is also morally justified to achieve it even if this may lead to undesirable consequenceson the condition that the undesirable consequences are unavoidable and unintentional, and that an effort was made to minimize their negative effects. Micro-proportionality is also a required condition.
Thus, civilian casualtiesthough an undesirable, painful, and troubling realityare an acceptable outcome of a military action if they cannot be avoided. During Operation Cast Lead, it was claimed that it is prohibited to attack one hundred terrorists if one child might be harmed along with them. This claim is both morally indefensible and utterly irresponsible. No one wants to harm a child, but refraining from attacking one hundred terrorists because of the child they hold means allowing them to continue attacking Israeli civiliansincluding children. Is it justified to allow a childor an adult, for that matterto be harmed in
Israeli historian Zeev Sternhell raised an equally weak argument when he severely criticized Operation Cast Lead and warned that the Israelis
by wreaking havoc on a civilian population
remove themselves from the family of civilized Western nations.20 In response to this claim, we should first recall that
Secondly, if we wish to evaluate Israel’s place among the family of civilized Western nations in the context of wreaking havoc in a civilian population, we might learn a great deal from comparing Operation Cast Lead to Operation Phantom Fury, which the United States Marines launched in the city of Fallujah, west of Baghdad, during November and December 2004. According to a report published by the United States Army Combat Studies Institute, many of Fallujah’s 350,000 residents fled the city before the operation, leaving an estimated number of 3,000 insurgents behind. During the operation, about 6,000 Iraqis and 1,200-2,000 insurgents were killed. Of the city’s 50,000 buildings, some 10,000 were destroyed, including 60 mosques, each of which was used to store substantial quantities of armaments and munitions. Over half of the city’s buildings were substantially damaged.21
The Gaza Strip is home to a population five times larger than the number of people that lived in Fallujah prior to Operation Phantom Fury, and about twenty times larger than the population that remained in the Iraqi city after the mass flight. The number of terrorists in
It is important to note, however, that such a comparison cannot serve as a valid basis for reaching moral conclusions. American actions in Fallujah and Israeli actions in
We have emphasized the fact that harmless civilian casualties may be an unavoidable consequence of military action in defense of a state’s citizens against terrorists. How does one defend the claim that a particular outcome is unavoidable? The first step is to review the various courses of action that were available to the military forces. The second step is to assess the effectiveness of each of these options in terms of the probability of successfully striking the terrorists. Third, it is necessary to evaluate the potential consequences of each course of action that are both possible and undesirable. These considerations should point us toward the preferable approach. For example, attacking a building in which dangerous terrorists and harmless civilians are present is likely to cause harm to non-combatants even if the preferred method of action is used. Harming these civilians would be considered unavoidable only if all other alternative courses of action are less desirable, whether because they present an even graver danger to the terrorist’s neighbors or because they are ineffective against the terrorists themselves.
The task of examining possible courses of action in terms of their potential consequences, both desirable and undesirable, with respect to the above-mentioned moral principles (the principle of distinction and the double effect principle), should be reserved for professionals. In regard to one point, however, an additional moral consideration is involved: Imagine that a military force is dealing with a situation in which dangerous terrorists and their harmless civilian neighbors are inside the same building. Let us assume that the military force arrayed against the terrorists has already invested considerable efforts in attempting to separate enemy combatants from non-combatants by issuing warnings in writing, by phone calls, by loudspeaker announcements, by using non-lethal weapons, etc. Nevertheless, a mixed group of terrorists and their harmless neighbors still remain in the building. We will also assume that the preferred course of action, from a professional military point of view, is to fire at the building from the ground or from the air, which is likely to harm the terrorists and some of their neighbors. At this juncture, it would be apparently reasonable to offer an alternative course of action: sending soldiers into the building in order to separate the terrorists from their neighbors. If this is successful, then the soldiers can retreat from the building and the attack will only target the terrorists. If, however, the soldiers’ attempt to separate the terrorists from their neighbors is unsuccessful, then the military force will have no choice but to fire at the building despite the possibility of harming non-combatants. It is self-evident that such a course of action presents a greater risk to the lives of the soldiers who are to be sent into the building than a course of action that does not send them in.
There are those who claim that this is a proper risk if it will reduce civilian casualties. In my opinion, however, there is no moral justification for favoring the lives of a terrorist’s neighbors over the lives of soldiers. In what follows, I shall raise three points to support my position.
First, we must recall the moral challenge of the soldier’s question: I am a citizen of the state. I enter combat in uniform because it is my duty to participate in defending other citizens of the state from a danger they face. It is for lack of any other choice that I am put into dangerous situations in order to attack terrorists and thereby defend my fellow citizens. These dangerous situations inevitably threaten my life. To send me into a building in order to reduce the chances of injuring enemy non-combatants will significantly increase the threat to my own life, and not for the purpose of carrying out the mission of eliminating terrorists, but rather for the purpose of protecting their neighbors. What justification is there for increasing the threat to my life? I am not aware of a compelling response to the soldier’s question and the moral challenge it presents. I am familiar with several attempts to formulate such a response, but they are unsuccessful, unpersuasive, and do not justify endangering soldiers’ lives in this manner.23
Second, the suggested solution we just described is a good example of the slippery slope down which a careless presentation of the principle of distinction can lead. If this principle is used in order to draw a distinction between different types of people, it will inevitably lead to preferring some people over others in a sweeping and unjustified manner. An accurate presentation of the principle of distinction would avoid this slippery slope. Although we have two different military standards of conductthe permissibility of attacking combatants during war and the impermissibility of attacking non-combatantswe cannot deduce from these a third standard of conduct that requires a state to prefer protecting the lives of enemy civilians over the lives of its own soldiers.
Third, and perhaps most important, we must consider the special duties principle. While morality demands that the human dignity of all people be protected, the provisions regulating this protection are not necessarily universal.
Where do Israeli soldiers stand in this hierarchy? Being Israeli citizens, they belong to the first tier of the state’s hierarchy of duties. When they are not serving in the IDF, they are full citizens and the State of Israel is duty-bound to them, just as it is to all of its citizens. However, when they are in military uniform and engaged in military activity, special obligations and restrictions imposed on them lower their place in the hierarchy to somewhere between the third and fourth tiers. The state has a duty to protect its non-combatant citizens and the rest of the people under its responsibility with its uniformed, combatant citizens; consequently, the lives of its soldiers are often jeopardized. It is important to emphasize that the state must come up with a compelling justification for endangering the lives of its soldiers. In principle, it should do so only under the necessity of self-defense.
Therefore, in the dilemma at hand, the state should favor the lives of its own soldiers over the lives of the neighbors of a terrorist when it is operating in a territory that it does not effectively control, because in such territories it does not bear the responsibility for properly separating between dangerous individuals and harmless ones. Once it has exhausted its efforts to separate terrorists from non-combatants, not only is the state no longer obligated to endanger the lives of its own soldiers in order to attempt to further such a separation, it is forbidden from doing so. (Some micro-proportionality considerations have to be mentioned in the full description of the decision we recommend, but since they do not change our practical consequences we will not presently describe them.)
The position presented here is also formulated in the IDF’s ethical code of conduct.25 Though the values outlined in the code, known as the Spirit of the IDF, are presented in an abstract and abridged form, it is nevertheless possible to derive clear conclusions from them with regard to our discussion.
First, the definition of the value of purity of arms in the IDF code states: A soldier will not use his weapon and force to harm non-combatants or prisoners of war. In line with the double effect principle mentioned above, when a soldier uses his weapon to attack a terrorist and unavoidably harms non-combatants at the same time, he is not using his weapon to harm non-combatants. He is acting the way he does in order to harm other, dangerous individuals, whom it is his duty to attack under the circumstances, in order to protect his fellow citizens from them.
Secondly, the value of purity of arms includes the demand that IDF soldiers will do all in their power to avoid causing harm to the lives, bodies, dignity, and property [of non-combatants]. In order to properly understand the phrase do all in their power, let us examine the following example: Terrorists have taken over a residential building in
Such a decision coincides with the demand that soldiers do all in their power, because a soldier’s courses of action are not determined by the physical options available to him, but rather by professional ethical considerations. The limits placed on a soldier’s conduct are dictated by the values and principles that he must uphold. Among these is the value of human life, which asserts that, During combat, [a soldier] will endanger himself and his comrades only to the extent required to carry out their mission. When a soldier enters a building, his mission is to attack the terrorists inside. He thus puts himself at risk. If he is a commander, he endangers his soldiers to the extent required to carry out the mission. A soldier will not endanger himself or other soldiers in order to avoid damaging the property of enemy civilians.
The value of human life delineates the limits of a soldier’s conduct not only in regard to damaging the property of non-combatants, but also to harming their lives, bodies, [and] dignity. We have already seen that soldiers are required to endanger themselves only to the extent required to carry out the mission. Soldiers are not required to endanger their own lives in order to reduce the risk of harming a terrorist’s neighbors. They will do all in their power to avoid causing harm to non-combatants, but without risking their own lives and the lives of their comrades.26
Over the course of Operation Cast Lead, questions arose regarding situations in which soldiers’ lives were endangered due to causes other than enemy action. For instance, four Israeli soldiers fell in the course of the operation in friendly fire incidents. In another case, IDF soldiers were wounded by an Israeli mortar shell that landed near their position.27 In a third incident, one Israeli force fired at another, though the episode ended without casualties.28 There is no need to repeat here that such incidents are unwarranted. At the conclusion of the operation, when asked how to avoid friendly fire incidents, Colonel Ilan Malka, commander of the Giv’ati Brigade, noted the importance of the value of professionalism, and immediately added an insight into the appropriate attitude toward soldiers’ lives. He said, We have to explain [to the commanders] that even if they lose a bunch of terrorists, it is no big deal. Don’t shoot if you are not sure you know where your troops are. In this context, Malka pointed out a clear failure in the preparations for the operation. We did not discuss this enough when going over the procedures of the fighting . It did not come up as much as the other topics came up. We went in without being sufficiently prepared on this issue.29 Friendly fire is not unavoidable, and some of the confusion that happens during combat is indeed unnecessary. This confusion can be ameliorated, and Israeli casualties from friendly fire can thereby be reduced. When it comes to military action, the value ofprofessionalism requires showing proper respect for the value of human life.
Another danger that faced Israeli soldiers during Operation Cast Lead was the possibility of being kidnapped by the enemy and being used later as a bargaining chip against their own country. IDF soldiers are supposed to be trained in precautionary steps to prevent abduction and to properly respond to kidnapping attempts. The Hannibal Procedure Rules of Engagement, drafted prior to 2000 while the IDF was still present in
All military actions carried out during Operation Cast Lead should undergo a professional, thorough, and detailed investigation, just like any other non-routine and complicated professional operation. Moral, ethical, and legal evaluations of specific actions can only be undertaken through the methodical and systematic framework of a professional inquiry. Only on the basis of these inquiries will it be possible to arrive at a general conclusion regarding Operation Cast Lead. Allegations of war crimes against
I shall conclude my essay with two comments. In his Nichomachean Ethics, Aristotle wrote, it is for a noble end that the brave man endures and acts as courage directs, which, according to a Jewish commentator, refers to those who endanger their lives in war to save the community.31 I am deeply impressed with the courage displayed by each and every one of the soldiers who participated in Operation Cast Lead and their commanders. They acted and suffered for a noble end, and endangered their lives in war to save the community. I would like most of all to commemorate the four officers and six soldiers who died in combat, along with the three civilian casualties, and to pay my respects to their families. At the same time, I am deeply grieved on behalf of each and every one of the harmless Palestinians who were not involved in terrorism, but nonetheless died during the operation due to the malicious designs of Hamas.
Asa Kasher *
* Asa Kasher is Laura Schwarz-Kipp Professor Emeritus of Professional Ethics and Philosophy of Practice at
1. For a deep presentation of the moral principles of the democratic state, see John Rawls, A Theory of Justice,revised ed.(Cambridge, Mass.: Belknap, 1999). The first edition was published in 1971, also by Belknap. The theory was reworked in John Rawls, Justice as Fairness: A Restatement (
2. The most important of these are the Spirit of the IDF and the military code of ethics for fighting terrorism. See Asa Kasher, Military Ethics (Tel Aviv: Ministry of Defense, 1998), pp. 231-237 [Hebrew]. The Spirit of the IDF can be found at http://dover.idf.il/IDF/English/about/doctrine/ethics.htm. The values of the General Security Service can be found at www.shabak.gov.il/English/about/Pages/valuseEn.aspx. For a specific discussion of the ethics of fighting terrorism, see Asa Kasher and Amos Yadlin, Military Ethics of Fighting Terror: An Israeli Perspective, Journal of Military Ethics 4:1 (2005), pp. 3-32.
3. For an important formulation of this theory, see Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, fourth ed. (
4. See, for example, Anthony Joseph Coats, The Ethics of War (Manchester: Manchester University, 1997); Paul Robinson, ed., Just War in Comparative Perspective, (
5. The eight principles that are most commonly quoted in scholarly literature on just war theory are: legitimate authority, just cause, last resort, right intention, chances of success, macro-proportionality, micro-proportionality, and distinction. In this paper we will not consider the legitimate authority principle, because no one contests that the Israeli government was authorized to initiate Operation Cast Lead. We shall touch upon the other principles, also mentioning additional principles that are not normally considered part of just war theory, but nevertheless make important contributions to the moral analysis offered here.
See, for example, Bruno Coppieters and Nick Fotion, eds., Moral Constraints on War: Principles and Cases (
6. See Yoram Dinstein, War, Aggression, and Self-Defense, third ed. (
7. See Asa Kasher, The Democratic Obligation to Pursue Peace Arrangements, Mehkarei Mishpat [Bar-Ilan Law Studies] 14:2 (1998), pp. 343-361 [Hebrew]; this article was reprinted in Kasher, Spirit of a Man, pp. 145-171.
9. For the Principle of Operational Deterrence, see Kasher and Yadlin, Military Ethics of Fighting Terror, pp. 27-28.
10. The concept of powerful response has not appeared so far in the context of Operation Cast Lead, outside of specific references to plans for responding to future rocket attacks from
11. Pronouncements of this kind appeared in David Caspi, Facing the Fences of Gaza in Amir’s Armor Battalion, Shiryon 31 (January 2009) [Hebrew]. The Commander of the 75th Battalion in the 7th Armored Brigade, Lt. Col. Amir, was asked what, in his opinion, would constitute a victory’ over or a subjection’ of Hamas. He answered that a subjection of Hamas would be achieved when the enemy loses its ability and will to fight, while a victory would be achieved when the battalion has successfully completed all of the missions it was charged with. The relationship between victory and subjection is complex and falls outside of the scope of our discussion.
12. Roi Bet Levi, King Javier the First, Haaretz,
13. In order to assess effectiveness, one would need to rely on intelligence information that is, by its very nature, not widely accessible.
14. For a discussion of the infrastructure principle, the principle of preserving human life, and the principle of protecting the lives of soldiers, see Kasher, The Democratic Obligation, pp. 155-164.
15. For a discussion of different, problematic uses of the concept of military necessity, see Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, second ed. (Upper Saddle River, N.J.: Prentice-Hall, 1999). The strict use of the term in this paper is free from the problems inherent in other uses.
16. For novelties in these contexts, see Paul Gilbert, New Terror, New Wars (
17. There are also other reservations, including some that relate to the means and tactics of combat, but they are not relevant to the present discussion.
18. An attempt to justify the principle of distinction on moral grounds, based on the special status of combatants, is found in Michael Walzer’s Just and Unjust Wars. For the opposite claim, see Asa Kasher, The Principle of Distinction, Journal of Military Ethics 6:2 (2007), pp. 152-167.
19. In the past, the so-called neighbor procedure was also used, in which the IDF would ask a neighbor or relative of the terrorist to approach the terroristwithout any risk to their own personin order to ask the terrorist to hand himself over to the IDF. This procedure has since been banned by a Supreme Court ruling. In my opinion, an improved, more appropriate, and secure version of this procedure should have been authorized in order to offer more protection to the lives of all parties involved in the conflict. See HCJ 3799/02, AdalahThe Legal Center for Arab Minority Rights in Israel et al. v. Commander of the Central Command, IDF et al., ruling from
20. Zeev Sternhell, Kadima to Democracy’s Rescue, Haaretz,
21. Kendall D. Gott, Breaking the Mold: Tanks in the Cities (
22. The number of casualties and the scale of destruction caused by Operation Cast Lead as reported in Israeli and foreign media are not reliable, in my opinion. Lorenzo Cremonesi, a correspondent for Italy’s Corriere della Sera and the only foreign reporter to enter Gaza during the operation, presented evidence that called into question any numerical assessment coming from Gaza. This skepticism is also based on past experience: One should recall the use of deceitful propaganda by Palestinian terrorist organizations and their supporters when they accused
23. I will mention one example: In the past, but also more recently, some commentators claimed that the value of human dignity requires that the human dignity of neighbors of terrorists should be protected. At the same time, these commentators described soldiers as state instruments. Such an approach deprives soldiers of their human dignity and is therefore invalid. Soldiers are not instruments, but rather uniformed citizens, and the obligation to respect human dignity as such applies to them as well. Examples of this problematic attitude can be found in Colm McKeogh, Civilian Immunity in War: From Augustine to Vattel, in Igor Primoratz, ed., Civilian Immunity in War (
24. The implications of the concept of effective control are manifold. See Sari Bashi and Kenneth Mann, Control and Responsibility: The Legal Status of the
25. One should recall that the Spirit of the IDF is a summarized version of the IDF’s first ethical code, The Spirit of the IDF: Values and Basic Norms. The original document included a two-part definition for each value, one concise and one longer. Purity of arms was defined there as follows (notice that the term soldier in the IDF context applies not just to the army, but also to the air force and navy): The IDF soldier will use his weapons and force to the extent necessary for subduing the enemy and will exercise restraint in order to avoid causing undue harm to human life, person, dignity, and property. The IDF soldiers’ purity of arms constitutes the restrained use of weapons and force while carrying out the missions, only to the extent required for accomplishing them, without undue harm to the human life, person, dignity, and property of soldiers or civilians, especially helpless dependants, during war and everyday security operations, in armistice and peacetime.
Human life was defined there as follows: The IDF soldier will act strongly to save human life, out of recognition of the supreme value of human life, and will endanger himself or others only to the extent required to carry out the mission. The sanctity of life as upheld by IDF soldiers will be expressed in all of their actions, in judicious and careful planning, considerate and cautious training, and proper performance in accordance with the mission, the professionally appropriate extent of danger and extent of caution, and will manifest a continuous effort to lower the number of casualties to the extent absolutely necessary for accomplishing the mission. See Kasher, Military Ethics,p. 232.
26. On one occasion I was told that my position implies a demand for zero risk to the lives of soldiers. This claim is groundless. When a soldier operates in a battlefield against terrorists, he is endangered by enemy sniper fire, small arms, grenades, mortar shells, rockets of different types, roadside bombs, loader bombs, booby-trapped buildings, assault and kidnapping threats, etc. Everyone agrees that the soldier is expected to remain in such a dangerous situation during a military operation.
27. Daniel Al-Peleg, My Travels in Hamastan, Bamahane 6-7 (
28. Nir Costi,
30. See the basic rules 24-25 in The Spirit of the IDF: Values and Basic Norms, in Kasher, Military Ethics,p. 236.
31. Aristotle, The Works of Aristotle, trans. W.D. Ross, vol. 9 (Oxford: Oxford University, 1963), Ethica Nicomachea, book III, ch. 7, p. 1115b; Aristotle, Book of Ethics, translated and elucidated by Itzik Stanav (Lvov: I.O. Salat, 1867), p. 26a [Hebrew].
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