A Moral Evaluation of Cast Lead

The writer, outspoken monitor of IDF ethics, analyzes the moral issues in the Gaza War. This article is based on his presentation to the Institute for Contemporary Affairs in Jerusalem, November 2009. Part I

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Prof. Asa Kasher,

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In Israel, a combatant is a citizen in uniform; quite often, he is a conscript or on reserve duty. His state ought to have a compelling reason for jeopardizing his life. The fact that persons involved in terrorism are depicted as non-
There is no army in the world that will endanger its soldiers in order to avoid hitting the warned neighbors of an enemy or terrorist.

combatants and that they reside and act in the vicinity of persons not involved in terrorism is not a reason for jeopardizing the combatant's life more than is required under combat conditions. 

The ethical doctrine which follows from the IDF Ethics Code mandates that, whenever possible, you must warn non-combatants that they are residents of a neighborhood where it is dangerous to stay. In Gaza, the IDF employed a variety of unprecedented efforts meant to minimize injury to non-combatants, including warning leaflets, phone calls, and non-lethal warning fire. 

There is no army in the world that will endanger its soldiers in order to avoid hitting the warned neighbors of an enemy or terrorist. Israel should favor the lives of its own soldiers over the lives of the well-warned 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 moral responsibility for properly separating between dangerous individuals and harmless ones.

Proportionality is not a numerical comparison, but an assessment of existing threats and the measures that must be taken in order to avert them. Proportionality is justifiability of the collateral damage on grounds of the military advantage gained.

Compare the Gaza operation to the U.S. Marine operation in Fallujah, Iraq, in late 2004. During the operation, about 6,000 Iraqis including 1,200-2,000 insurgents were killed. Of the city's 50,000 buildings, some 10,000 were destroyed, including 60 mosques. Thus, the U.S. left a trail of destruction in Fallujah far greater than anything Israel inflicted on Gaza. Comparing IDF activities to those of military forces of Western democracies is an essential part of any present attempt to use international law.

We in Israel are in a key position in the development of customary international law in this field because we are on the front lines in the fight against terrorism. The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.
The "Just War Tradition"
On December 27, 2008, after sustaining eight years of rocket attacks, Israel launched a military operation against Hamas in Gaza. How are we to evaluate the Israeli incursion from a moral and ethical perspective?
As in any moral evaluation of a war, we must begin by distinguishing the "Why?" from the "How?" "Just war" theory distinguishes between jus ad bellum and jus in bello - between the moral justification for war and the moral justification for actions taken during a war. The decision to wage a war or to embark on a military operation is made by a government, by politicians. The implementation of that decision in the field, however, or the "How?" is
A state has the right to defend itself against attack.

determined by the military echelon. Generally speaking, a government is not to blame for the behavior of soldiers, and soldiers should not be blamed for the decisions made by the political class.

To ask "Why?" is to invoke several principles that belong to the "just war tradition." The first is the right of self-defense. From an external point of view, from the perspective of the relationships between states, a state has the right to defend itself against attack. From the internal point of view, namely from the perspective of the relationship between a state and its citizens, a government has the duty to defend its citizens. A state must protect its citizens from acts of violence because it must preserve the conditions that enable it to exist; foremost among them is the preservation of the lives of its citizens.

A democratic state is therefore under an obligation to defend its citizens' lives. Thus the state has a right vis-à-vis the enemy and a duty vis-à-vis its citizens. This is the distinction 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. Both are applicable in our case, since beginning in 2001 over ten thousand Kassam rockets and mortars were launched from Gaza into Israel, endangering the lives of the citizens under attack.

Second is the principle of last resort, which dictates that if a dispute can be solved without resort to military force and inflicting casualties, then the parties are obligated to do so. The use of military force is justified, in other words, only if all other alternatives have been exhausted. Here, too, Israel is presumably in the right, for rather than launching an offensive immediately after the first Kassam rocket struck Sderot, the country waited eight years, during which it pursued other solutions, both military and political. Israel's long abstention from any large-scale military response in the face of this aggression presumably meets the principle of last resort.

Third, the probability of victory principle dictates that a military operation may be launched only if it has a reasonable chance of successfully achieving its aims. Such operations may not be initiated merely as a symbolic
The country waited eight years, during which it pursued other solutions.
gesture of bravery. If there is no chance of victory, the use of military force is mere bloodshed. Yet here we must distinguish between classical wars like World War II and the Six-Day War in which victory meant the elimination of a military threat, and asymmetric counterterrorism or counterinsurgency warfare against a non-state entity, like the type Israel faces against the terrorist militias of Hizbullah and Hamas. In the latter, victory means significantly improving the security situation in the southern part of Israel by damaging the enemy's armaments infrastructure and crippling its ability to carry out terrorist activities. Here again, last year's incursion into Gaza met the pertinent condition.
The Moral Standards of the Israel Defense Forces
In inquiring into the moral standards of a military force - which is not the same as addressing the standards of an individual - three independent questions come to the fore. One concerns the basic values on which the military force acts and the code of ethics according to which it behaves. A second level concerns the translation of such values into practice by means of doctrines, regulations, and rules of engagement. Values are abstract, doctrines are more concrete, while rules of engagement are quite concrete. Finally, there is the question that relates to the
How do we protect the human dignity of a terrorist?
behavior of the troops on the battlefield.

As specified in a document called "The Spirit of the IDF," the values of the Israel Defense Forces, much like the values of the American and British forces, are impeccable. For example, there is the basic value of protecting the human dignity of every human being, even the most vile terrorist. How do we protect the human dignity of a terrorist? By considering whether to kill him or capture him or leave him alone.

An additional, uniquely Israeli value is that of the sanctity of human life, both of our troops, our citizens, and other human beings. It appears in an explicit form in no other military code of ethics.

The military code also enshrines a fundamental value known as "purity of arms," which actually means the purity of
the usage of arms. Soldiers may use force only for accomplishing their mission, and nothing more. Anything you do with your gun which is not defending the citizens by accomplishing your specific mission is deemed immoral.
In my view, no military code of ethics is morally superior to the code of ethics of the IDF. 

(Brief written by the Jerusalem Center for Public Affairs in conjunction with the Global Law Forum sponsored by the Legacy Heritage Fund).