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Just War in Gaza

July 24, 2014

In a thorough Azure essay in the wake of Operation Cast Lead, Israeli ethicist Asa Kasher inquired into the principles of “Just War” theory and the reality of the 2008-2009 operation in Gaza. There are obviously differences between today’s war and that one—Israel now possesses a remarkably effective missile-defense shield, for instance, and the threat of Hamas attacks carried out through a sophisticated network of tunnels is new—but the similarities, especially when discussing ethical principles, are countless. For instance, the aim of stopping Hamas terror remains:

The aims of Operation Cast Lead included deterring Hamas and other terrorist organizations from launching rockets into Israel. Such deterrence is, in and of itself, morally desirable, because it can effectively prevent terrorist operations (or even war itself, as in the case of a state such as Syria). Nevertheless, measures taken in order to establish deterrence must meet certain moral requirements.
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.
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.

The conduct of the war—not just the decision to go to war—has also been questioned during this operastion, perhaps much more loudly. For Operation Cast Lead, Kasher offered this take on the criticism that Israel used disproportionate force:

“Proportionality”—a term raised many times in the context of Operation Cast Lead—actually 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 Israel’s population, while many people are killed by the Israeli response, this response is disproportionate and, therefore, both morally unjustified and contrary to international law. This claim is both invalid and groundless. It is invalid because the number of Israeli casualties is not a reliable measure of the threat posed by enemy rockets. Let us recall the Grad rocket that hit an Ashkelon classroom on February 28, 2009, which happened to be a Saturday morning. Had the missile hit the school on a day when classes were in session, dozens of school children would have been killed. The good fortune of these children does not diminish the threat posed by the attack itself. A responsible comparison between Hamas attacks and Israeli action during Operation Cast Lead would not distinguish between “hits” and “close calls.” It would take into account the thousands of rockets that have been fired into Israeli towns and cities, and would reach the conclusion that the Palestinian threat to Israeli citizens is greater than the Israeli threat to residents of the Gaza Strip who reside in the vicinity of the terrorists.
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.
Moreover, accusations that Israel “drew a gun in response to a slap in the face” entirely miss another essential point: In this context, proportionality is not assessed by simply comparing the Israeli military response to a specific enemy operation (“the slap”). Instead, it involves a comprehensive assessment of Operation Cast Lead in light of the ongoing actions that the enemy has committed for many years and will continue to commit for the foreseeable future (“endless repeated slaps”). Such an assessment should take into account the enemy’s desire and ability to inflict continuous harm on Israeli citizens. After all, Israel did not draw a “gun” in response to one “slap in the face,” but in response to constant slapping, attempts to slap, and threats to inflict stronger and more powerful slaps.
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; 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.

One incredibly important similarity is that both Operation Cast Lead and Operation Protective Edge have had to confront the dilemma posed by a war with a terrorist group that is not in uniform and not otherwise distinguished from the civilian population:

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 pose—with the exception of wounded persons, prisoners of war, medical teams, and clergy. 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 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. 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 consequences—on 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 casualties—though an undesirable, painful, and troubling reality—are 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 civilians—including children. Is it justified to allow a child—or an adult, for that matter—to be harmed in Israel in order to avoid harming a child in Gaza?

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