There ain’t no “just war”, there’s just war

Indeed, as he appeals to us to ask hard questions, the fighting and killing simply continue, the disproportionality grimly increases… While he dithers with his questions, who will claim, or be assigned, responsibility for the hundreds and hundreds of innocents killed?

wow. I really enjoyed reading that. probably a little too much.

I can’t claim any sort of expertise, but are you sure “concrete and definite military advantage anticipated,” doesn’t refer to the concrete and definite goals of an individual attack (for example, destroying a certain arsenal that might be in a particular building in a civilian neighborhood) rather than the overarching goals of military campaign (ending rocket attacks on Sderot)? Seems to me it would otherwise be difficult to ever say anything concrete and definite.

This seems like the familiar exercise of attacking a writer for producing a different article than the one you wanted.

Or attacking an author for aiming for a different audience than the one you think he should be talking to. For better or worse (and yes, there is a better to it as well as a worse), a great many people do not see settled matters of international law, codified in various protocols and conventions, as especially important guideposts for reflecting upon war and peace and international affairs generally, perhaps because many, if not most, of the conceptual and technical fundamentals that most of us expect things called “law” to have (like, say, regular enforcement mechanisms, or broadly grounded political legitimacy) are not, in fact, present in the Geneva Conventions and so forth, as the Bush administration’s blithe and nigh-consequenceless dismissals of them has amply demonstrated. Assuming an audience, as I think Walzer plainly is, that includes such people would require that anyone who does want to get them to reflect upon international affairs do something more than simply cite chapter and verse.

“The answer is it doesn’t, and specifically, that even if the other side breaches its obligation to protect its civilians, by using them to surround a military objective, you don’t get to ignore the existence of the human shields; the calculation of whether the harm to noncombatants is excessive relative to the CDM advantage has to be made on the basis of the actual harm anticipated, not some wishful-thinking assessment of what it ought to be.”

Sure but that doesn’t answer the question so clearly as you seem to think. This can be seen through being more concrete about it.

Say that your enemy illegally puts an anti-aircraft gun on top of a small apartment building where 20 civilians live. This anti-aircraft gun is protecting an important airfield. Can you bomb it even though it is likely to kill 20 civilians? Probably yes for most values of ‘important airfield’. Can you bomb it if it is one of many anti-aircraft guns on top of apartments even though the chance that that particular one will destroy one of your planes is small since there are 100 guns and you estimate that all together they are likely to shoot down 3 planes if you don’t destroy them? The answer is still almost certainly ‘yes’ for most values of ‘important airfield’.

So while you quote the duties accurately, you aren’t really communicating what they do and do not prevent very accurately.

it really is unseemly for Walzer to go about patting himself on the back […] for being the only person morally serious enough to think about these ever so difficult questions

I take it that the point of Walzer’s insistence on the questions’ difficulty at this particular time is that they are so hard that no answers that reflect badly on Israel can be given until Israel has accomplished what it wants to do in this case, if ever.

A couple of comments about Walzer.

He’s always been a skeptic about proportionality in sense 3) in Daniel’s original post; it’s barely mentioned in J&UJW, in either the ad bellum or the in bello discussions. The reason is that he doesn’t think the relevant weighings or comparisons can be done — he’s a skeptic about the required measurements. He’s therefore tended to emphasize 2) in Daniel’s post, which I would call necessity rather than proportionality, though he also exaggerates his originality in pointing to it, calling it an addition to the DDE as applied to the morality of war whereas it was always part of that. But the proportionality he dismisses in his New Republic piece is something he’s always dismissed (wrongly, I think — it’s a vital part of the morality of war).

Daniel is right about ‘negative reciprocity’ in Additional Protocol I, at least as I read it (and I’m not a lawyer). If there are civilians around an enemy military target only because the enemy illegally and immorally placed them there, that doesn’t reduce in any way the weight you must assign harms to them in deciding whether an attack on the target would be disproportionate. But it’s pretty clear to me that both the U.S. and the Israeli military reject that doctrine, as evidenced in statements they’ve made defending their recent military actions. And I’ve wondered whether this isn’t the, or part of the, reason why neither of those countries has ratified the Protocol. But back to Walzer, as I recall, J&UJW also rejects the doctrine, saying that if the enemy has used civilians as shields then the enemy, and not we who collaterally kill them, are responsible for their deaths. (That’s a strong claim; a weaker and more plausible one says only that the weight of the deaths is reduced in our calculations somewhat.) It’s not a big theme in the book — which like Chris I don’t have with me — it’s just mentioned in passing two or three times. But I think it’s mentioned in connection with nuclear weapons policy as well as with rules of engagement in Vietnam. So in questioning the doctrine in his New Republic piece Walzer is again saying something he’s said before.

And I should add that I don’t find this last issue nearly as easy as Daniel does. His post considers only the strong claim that we can totally ignore harms to innocent civilian shields, which is of course absurd. But I don’t find it absurd to say that those harms can be discounted somewhat, because of the enemy’s role. (I don’t find it compelling either — I just find the issue very hard.) The alternative represented in Additional Protocol I allows parties to a conflict to be morally protected by their own immoral actions — the more wrongs they do, they less we are morally permitted to do to stop them. Isn’t that troubling? Several writers on the morality of war back in the 1960s and 70s, and not just Walzer, found it troubling, both with respect to anti-insurgency warfare and with respect to nuclear weapons policy. And I wouldn’t, with Daniel, just airly dismiss their views as wrong.

Rule number 1 never debate Daniel (unless you like to lose debates)
Rule number 2. Glenn Greenwald neither.
Rule number 3 Never debate Daniel
Rule number 4 there is no rule number 4.
Rule number 5 never debate Daniel.

I’m about to break rule number 1.

OK so what’s with “Just and Unjust Wars” and the protocols ? Have you ever published a book ? Neither have I. However, I have heard about these things like lead times and publishing delays, and they guy made it clear that he was organizing and writing down thoughts from at least 4 years earlier (when he was too busy protesting teh US involvement in the war in Vietnam to write a book).

I mean “J and UJ Ws” is a book not a blog post. It wasn’t written on the day it was published. I might add that it probably was written with a typewriter (ever encountered that word). Do you have any idea what it is like to revise a manuscript without a computer ?

Neither do I.

Now some things might have happened in the field since 1977, but what’s the point of being a doyen if you can’t ignore everyone else ?

Robert Waldmann —

The Geneva Conference began in 1974. The Acknowledgments of JaUW state: “The bulk of the book was completed in 1975-76.” (Thanks, amazon.com “Look Inside”!)

Daniel at #18: I’m not restricted in my moral thinking by decisions some people made in Geneva 30 years ago, and I don’t know why anyone else should be. International law is as you say it is, but sometimes the law is an ass. (Not that I’m saying it is in this case — as I said, I find the issue hard. But then I don’t have the smug moral certainty of some CTers.)

Chris at #14: Yes, the claim that an enemy is responsible for the deaths of shields is often made in bad faith, and on any credible view recent IDF actions in the West Bank, Lebanon, and Gaza have been disproportionate. But I don’t see the ‘big moral gap’ you do. The issue we’re discussing concerns cases where the civilians’ proximity to the military target is something the enemy intentionally and wrongfully brought about; cases where the enemy and civilians just happen ‘to live together in the same place’ (as you put it) therefore don’t seem relevant. And if in the cases that are relevant the enemy’s wrongful action can diminish the weight of the civilians’ deaths in our proportionality calculation, as Walzer thinks it at least sometimes can, why should it matter whether the deaths will be caused at close range or by longer-range bombardment? The question is whether another’s wrongful contribution to a bad outcome I help cause diminishes to some degree (even though not totally) my responsibility for that outcome. I don’t see how the exact nature of my causal contribution to the outcome, e.g. whether from close by or far away, makes a moral difference. So if Walzer did distinguish in J&UJW between the close-range and long-range cases, that seems to me to have been a mistake.

And FWIW, some of the 1960s discussions of Vietnam, e.g. Paul Ramsey’s IIRC, went from premises about nuclear weapons policy to conclusions about anti-insurgency, i.e. the argument why U.S. soldiers could regard the deaths of the Vietnamese peasants among whom the Viet Cong were hiding as the VC’s responsibility rather than their own — again, a more extreme view than I think is credible — was that it would be absurd to say that if an enemy locates its nuclear missile facilities in civilian neighbourhoods that can make attacking the facilities morally wrong. I’m not endorsing the argument, just noting that, far from seeing your big gap, some writers on the ethics of war took the long-range case to be more compelling than the close-range one.

And to repeat: I don’t say this because I think the U.S./Israeli view about enemies’ wrongful actions is correct — I find the issue very difficult, with powerful moral considerations on each side.

Who cares? Just war theory is, and has always been, simply a convenient excuse to (a) the strong to justify their wars (b) ruling class ideologues everywhere to condemn non-state violence against “duly constituted authority” and (c) liberals to waffle on endlessly about abstractions when the concrete case couldn’t be any clearer.

Really, I see absolutely no redeeming feature in the whole enterprise. Whenever the theory is actually used to restrain a powerful actor in a real-world situation, alert me.

…liberals to waffle on endlessly about abstractions when the concrete case couldn’t be any clearer….

Everybody’s a man of action, untrammeled by thought, on the Internet.

DD, there’s a difference between giving an idea airtime when you write on the subject and going about behaving like everyone else already agrees with you on the point. Many people clearly have different views on the negative reciprocity issue and when you engage their arguments it is inappropriate to assume otherwise. I also don’t see how the arguments you’ve brought to bear establish the Protocol’s position on the issue as an uncontestable view like some sort of response to a logical fallacy.

Christian, while it is true that just war theory is unlikely to be used to prevent a powerful actor like the United States of 2008 from doing what they want, I think it does help to influence them as to what they ought to be doing. There was a time in this world when morality was such that Israel would have probably solved their Palestinian problem quite completely by now. But as our understanding of morality has improved I think certain kinds of actions have become inconceivable (or at least much less likely) for the institutions that control the world’s most powerful militaries. I find it odd that Walzer doesn’t appear to recognize the alternative understanding either, studiously ignoring the Protocols himself, but probably if he is actually trying to ultimately influence actors in the US or Israeli government (directly or by shifting the views of the populace they represent) reference to them will not be perfectly helpful.

It is just the particular acts which Walzer appears to be trying to defend that do more than anything else to damage his reputation, in my opinion.

Just war theory is unlikely to be used to prevent a powerful actor like the United States of 2008 from doing what they want, I think it does help to influence them as to what they ought to be doing.

Indeed; it explains to them in detail how to justify the wars they want to engage in. And, if you look at the number of wars just war theory has justified, I think Walzer has a right to feel triumphant.

One of the odder parts of the arguments that always break out about the wars of Israel is the repetition of the canard that no other country in the world would be provoked like Israel and not be justified in massively retaliating. It would be nice if the proportionality issue brought into focus the fact that, contrary to this story, many, many countries are neighbored by other hostile countries that host guerilla groups. Afghanistan, Pakistan, India and Turkey occur to me right off hand, each one of which has received much more bloody provocation than Israel has. Any survey of Africa could add six or seven more names to the list. And on almost every occasion – or maybe every occasion, actually – when an attack is launched from one of these guerilla groups. the standard response of the Western powers is to urge restraint. In the case of Afghanistan, of course, not only is restraint urged, but it is enforced – NATO would simply disallow an attempt by Karzai to attack Pakistan. This is not a formal rule of the international order, but certainly it provides a reference that should be discussed when discussing Israel’s wars. In particular, why the Western powers do not enforce or even encourage the same degree of restraint. Violation of the rule of thumb leads, I think, to violations of more set features of international law.

Daniel (#18),

I know you’re a mate of Walzer but come on, really? The way to get people to think about the constraints on the waging of war is to not even mention the subject of war crimes? I really can’t sign up to this one.

You don’t have to. Walzer has often defended the idea of there being such things as war crimes, and of the need for institutions–or failing them, sovereign states, or failing them, even perhaps independent third parties on occasion–capable of regularly enforcing consequences upon those who commit such. As I read it, in this essay he’s operating under the assumption which Rob implicitly identifies in #24: it is certainly the case that the conventions and protocols and details of international law are well-reasoned, expertly argued, and frequently relied upon by numerous commentators and leaders in formulating their decisions about international affairs. But of course, if the relevant international law were truly a “law,” in every formal sense, then the question of the relevant international law’s comprehensiveness and reasonableness and appropriateness wouldn’t actually matter, would it? It makes me wonder if your frustration with the fact that Walzer, in this case, is arguing about proportionality without reference to the relevant international law is indicative of the fact that, as the world stands today, the strength of the principles of international law appear to depend mainly upon everybody continuing to refer to them and talk about them as if they were binding. Whereas, of course, in truth they are not–except in those rare cases where the interests of powerful states align with those of various international organizations, in which case you really do see some real enforcement, at least sometimes.

All this is not to deny that Walzer has become rather quick–perhaps too quick–to make this point and run with it whenever Israel comes up. As I said in another CT thread on Walzer some months ago, he’s become increasingly predictable in his sighing and looking at the big picture in regards to Israeli actions over the past several years, and that definitely makes his commentary on such less valuable and interesting. But no, I don’t think he’s gone over the deep end yet.

29: Then instead of complaining that Walzer never refers to the Protocols, perhaps you should criticize him for holding that view (espoused in his famous book, which is also not in accordance with international law). The mode of attack that you’re choosing is not your most powerful one.

Also, regarding international law, it would be nice if you clarified whether it was more important to you that it is called international law or that it is well reasoned. Also, in what sense would you consider it to have been well tested? It does not seem well tested to me in the normal sense of a law: what kind of consequences flow from enforcement of this law . It only seems tested in the sense of: what kind of moral outrage can we raise against various actions using the laws’ existence as a buttress for our claims.

Daniel #29 :
No, you seem to believe that you were discussing this, but actually you were just asserting that something which is actually a war crime, shouldn’t be, and not giving any reasons why the rest of the world ought to adjust its international humanitarian law in order to give less protection to civilians.

No, actually Tom has offered an argument for disagreeing with you over this particular point ( negative reciprocity ). You should try responding to it. His argument first of all involves a distinction between the strong claim that we can totally ignore harms to innocent civilian shields and a weaker claim to the effect that those harms can be discounted somewhat because of the enemy’s role. He then argues that the weaker claim is plausible because not accepting it –i.e. accepting the Protocols reading– has a a morally counterintuitive consequence viz. that parties to a conflict will be morally protected by their own immoral actions—the more wrongs they do, the less we are morally permitted to do to stop them. The argument in other words involves a reductio of the Protocols and if he is right the Protocols are indeed defective.

Just for the sake of clarification Daniel : have you actually read Walzer’s J&UW ?

why should it matter whether the deaths will be caused at close range or by longer-range bombardment? (…) I don’t see how the exact nature of my causal contribution to the outcome, e.g. whether from close by or far away, makes a moral difference.

Because ignoring this aspect means ignoring the fundamental change in warfare due to technological developments in the 20th century. One cannot competently discuss jus in bello without taking these changes into account, since the ability to kill a large number of people at the push of a button and with comparatively little risk to those carrying out the attack has posed genuinely new ethical challenges.

Accusing academic political philosophy of being disconnected from the real world while simultaneously treating Protocol II like it’s been influential is a serious case of pot vs. kettle re: blackness

Dsquared,

What do you make of the comments posted by this zdenekv person, to wit:

” … Tom has offered an argument for disagreeing with you over this particular point ( negative reciprocity ). You should try responding to it. His argument first of all involves a distinction between the strong claim that we can totally ignore harms to innocent civilian shields and a weaker claim to the effect that those harms can be discounted somewhat because of the enemy’s role. He then argues that the weaker claim is plausible because not accepting it—i.e. accepting the Protocols reading—has a a morally counterintuitive consequence viz. that parties to a conflict will be morally protected by their own immoral actions—the more wrongs they do, the less we are morally permitted to do to stop them. The argument in other words involves a reductio of the Protocols and if he is right the Protocols are indeed defective.”

Also, zdenekv wishes to know whether you have actually read Walzer’s J&UW, because it is, apparently, false that the Geneva Protocols get mentioned only once.

Cheers.

Nope, sounds correct to me; just thought you were angling for a right to reply without having to get into a one-to-one with zdenekv.

Yes, the Alan Dershowitzes of this world try to pretend that all these situations are like a cop bravely shooting through a human shield taken by a hostage-taker, but they’re in general much more like that poor kid in Liverpool who got killed by a bullet shot by one gang member at another. I mentioned at the time of the 2006 Lebanon invasion that a lot of people seemed to have invented for themselves a theory of jus in bello under which Ahmed was A-OK all day when he was walking round taking potshots at tanks with an RPG, but committed a war crime every evening when he went home to the wife and kids.

I’m pretty sure that Israel isn’t party to Additional Protocol I and that the Israeli Supreme Court has equivocated on what – if any – parts of that Protocol are incorporated into Israeli law (owing to its status as customary law).

I would also say that Daniel is being slightly too optimistic about the limiting power of the terms ‘concrete and direct’. State practice (and state practice is absolutely vital here) seems to militate against his particular restrictive meanig of the term. Indeed, should his reading be the correct one it seems to me that nearly every recent law has been in egregious breach of the law, without attracting any condemnation.

Daniel : Simple mathematics tells you that if someone can gain an advantage by performing an illegal act, they can gain more of an advantage by performing more illegal acts. But nowhere else in law or morality is this taken as a reason for believing that “two wrongs make a right”, or that it’s acceptable to neutralise one person’s unfair advantage by killing other, innocent people.

Again, this idea of absolute prohibition on killing innocents ( and what is that resting on anyway ? ) is open to challenge : 1) The fate of the shield is important. Occasionally we will have a good reason to believe that the shield is doomed whatever we do. Had it been possible to know of the plans of the September 11 hijackers and to intercept their flights on their way to their destinations , then the decision to destroy the planes and the hijackers together with the shields ( innocent hostages ). The decision might be accaptable because we know that the hostages are doomed anyway.

2) Second type of consideration that blunts the force of the prohibition on killing inocents/noncombatants that you think is absolute is something like this : what if the enemy thus shielded will kill number of inocent people later ? Maybe we know that the enemy is grabbing the shields precisely so that he can attack other innocent people. Obviously , you should do everything possible to disable the enemy without harming the shield but what if there is no time ? Ans so on down the line . The point here is that it is relatively easy to show that things are not cut and dried morally speaking and that you are relying on moral intuitions that themselves may not hold water .

And with the invocation of Alan Dershowitzes we’ve now seen the full show! The important thing to remember on Daniel’s posts is that they are a mixture of exercises in persuasion and performance art. They are done in they style of debate, in the tradition of sophistry. There’s place for that, of course, but if you don’t keep this in mind you’ll come away baffled by the ways that the show isn’t truth-aimed in the way that, say, a philosopher would expect it to be. It also explains the name-call, distortions of arguments, serious-sounding invocations of books Daniel hasn’t read, the lack of an hesitation in argument, the (pose?) of grand indignation if he’s questioned, and so on. It’s good theater, it’s often useful for persuasion, but it’s not the sort of activity philosophers are likely to find useful since it’s goals are not finding out what’s right on a subject but point scoring. When you keep this in mind it can be good fun to watch, even if it’s not really worth-while to take part in.
(Just to avoid confusion, the Matt posting above isn’t me, the Matt who often posts here. )

A guide to serious truth seeking as opposed to sophistry.

(1) Dsquared defends “international law” because by its rules ““minimising civilian casualties” is a basic primary requirement”.

(2) zdenekv describes dsquared as supporting “absolute prohibition on killing innocents”.

(2) It’s dsquared, apparently, who employs “distortions of arguments”.

Marc Mulholland , here is what Daniel said on another thread which discussed roughly the same issue : “This has nothing to do with the protected status of noncombatants, which (as the quoted text makes it very clear) is absolute in nature, is not altered for either party by the failure of its opponent to do its duty in protecting that status, and which makes it illegal to carry out an attack causing incidental damage to those civilians which is excessive in relation to the concrete and direct military advantage obtained. Stop blowing smoke. ”

Do you see what I mean ? Do not be afraid to ask questions.

What makes you think that any country would have agreed to the Conventions if they included your “absolute prohibition on killing innocents”? That would make the waging of war impossible.

Absolutely not . To see why, why don’t you read part 3 , section 9 of Walzer’s book ? Especially p138-159.

But it does so by increasing the level of collateral harm, i.e. by increasing the number of people likely to be killed, not by affecting the question whether collateral harms (whatever their level) should be discounted if they also depend on wrongful actions by the enemy

It also makes it more likely to be considered an “indiscriminate attack”, which matters under international law.

Matt (#55) – cut it out.

Chris, the tone of Matt’s comment @ 55 lacks tact, but its substance seems pretty accurate to me. And given Daniel’s own uncharitable attitude towards Walzer (“squid ink,” “freakish,” “stick out of his ass,” etc.) maybe a taste of his own medicine isn’t such a bad thing.

Oh, isn’t it nice that “we” can have a “sane” discussion about “just” war and international “law”! It serves, at least, as a useful diversion from the underlying, referenced “value” of the derivatives. Because, of course, we all want to avoid those interminable, slanderous nigglings over the Israeli/Palestinian conflict, which interrupt the decorum and discipline of inter-tubes threads that we all cherish, since one-up-man-ship works best and multiply amongst anonymous minions. But, in the mean time, “we” face an actual situation, which is “impossible”, in which all the relevant parties are more wrong than right, the Israelis and Hamas, the U.S. and the E. U., Egypt and Fatah/P.L.O. That’s a delicious situation, in which to be counting corpses,- (since, due to the definition of “sovereignty” as the “legitimate monopoly of organized violence”, most political arguments tend to devolve upon the recognition or not of corpses, at least since Antigone, if not Patroclos),- but it might hint, at least, at why no wars can be “just”,- (not to say, that they are immoral, since wars tend to instill “morality”),- but also why they might be deemed “necessary”. But I’ll say this though about Hamas, who were to be at once elected and deposed by their sworn enemies: they are the least “Hobbesian” of agencies, since the “duty to protect”, by which they would derive their “authority/legitimacy”, has been inverted by the bottle-rockets that they’ve launched, which have killed a dozen or so Israelis, into, by foreseeable boomerang, hundreds of their “own” deaths. Of course, these are the same folks who initiated, at least within this historical context/sequence, the suicide-bombers, subsequently to go on to greater fame and effect, – (though it was the Irgun that originated the “car-bomb” technique). Still, the overwhelming asymmetry of power/organized violence between the two sides renders the absence of realpolitik, in favor of moralizing/intellectualizing niggling here, shameless. Perhaps a boycott of Israel, in the manner of the former Union of South Africa, would be in order, except that the other U.S.A. would never go along, and who would play the role of the Cubans? No, let us all perform a welcoming dance for our newly arrived ghosts.

Oh, and I forgot to mention that it is not merely the case that the IDF means to produce a certain quota of deaths amongst the supernumerary Gazans, but rather those deaths of extras are a mere means to the larger strategic end of destroying the very possibility of any sort of Palestinian polity. Just in case anyone would have forgotten the “war is the continuation of politics by other means” dictum, which is to say, that the means-ends “calculus” is not a formalism separable from the ulterior ends, which would dictate the selected means.

You’ve now written two comments, totalling 200 words, all of them about how you don’t like the style in which I express myself, making no substantive points at all. What kind of a response were you anticipating?

I think he was expecting a response from you, not a response from Chris Bertram. #67 looks to me like a threat to ban “Matt”, which I think is unnecessary for the simple offense of going beyond ad hominem criticism (often engaged in by the leading lights of CT) into ad hominem meta-criticism.

Although I guess if “Matt” were to post the same thing in every thread, thus indicating that he doesn’t care what the thread is about, it would become trolling.

I’m curious just how fair-minded and smart Daniel is.

Humans are notoriously poor at estimating small probabilities so this question should be a good differentiator of extreme intelligence.

Daniel, where would you place the odds on which of the following is more likely to occur first.

1. A war criminal going medieval on Daniel’s ass or
2. A commenter like MH getting busted by the international cops for shooting up innocents.

I think he was expecting a response from you

Well now he’s got one. Seriously, what on earth am I meant to reply to something like #55? It doesn’t say anything about the actual issue here (which is, to recap in summary: 1) there is an alternative theory of the rights of noncombatants to Walzer’s, which is “international humanitarian law” 2) it is IMO much better than Walzer’s in that it gives clear answers to questions he can’t answer and it protects noncombatants where he would leave them unprotected 3) it is quite a serious dereliction of intellectual duty on Walzer’s part that he does not even mention this alternative theory but instead allows a reader to believe that his theory (or less charitably, a version of his theory which has been gerrymandered around current events) is all there is). It’s just a rant at me for not writing like Matt’s view of a “Philosophaahh”. I probably ought to respond with a string of insults at Matt, but really, can I be bovvered?

#76, #77: Not sure I can place odds. They’re both pretty unlikely, since as I understand it MH isn’t a soldier. But the overall trend certainly is toward greater enforceability of international humanitarian law, and I and plenty others have high hopes that Obama will sign the USA up to the ICC statute, so I’d say that the second is marginally more likely than the first.

#71, it was actually an Italian anarchist in the 1920s who came up with car bombs. See Mike Davis’s [a href=”http://www.google.com/search?q=buda%27s+wagon&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a”>Buda’s Wagon.

Incidentally, Matt writes at (what is now) #57

“And with the invocation of Alan Dershowitzes we’ve now seen the full show! ”

Here’s Walzer, in the very Lebanon piece I referred to in my first comment on this thread:

http://www.dissentmagazine.org/article/?article=744

“A final word. I do not like Jerry Slater’s attempt to distinguish me from my friends Alan Dershowitz and Martin Peretz (I don’t know Abraham Foxman). I have agreements and disagreements with them, but the agreements are far more important.”

Just wanted to draw attention to Rob’s comments at #18, #26 and #53, which for my money are the most cogently critical engagement with Daniel’s post on this thread. I don’t agree with the blighter, but I haven’t seen his arguments rebutted yet.

Phil , but it is not such a good argument. The gist of Rob’s argument is that international law is too ineffectual to stop aggression etc. but the obvious reply Daniel can make is that even if that claim is right , international law is better in this regard than what theoreticians like Walzer provide which is zero; it is better than nothing. Rob himself concedes this too in his #18 post and so what his argument is ineffectual as a criticism of Daniel’s stance.

Hidari I understand that and I did not mean to offend anyone . I was just thinking that what follows those kinds of calls for boycotts is what we saw just the other day when George Galloway called for “shutting down of Jewish shops ” in UK. My comment is really a reaction to that insanity.

Phil, I think you’re right and feel somewhat guilty about not having replied to Rob; he does have a point about the fact that international humanitarian law is embedded in a global political system which means that it’s more or less bound to be applied unfairly. But all one can really do in this situation is what the Red Cross actually do, and pretend as if it’s not, and demand that it be applied consistently. I don’t even think that to do so is really wishful-thinking in the pejorative Euston Manifesto sense, because even given how things are, the very fact that the Convention and Protocols did eventually get agreed provides some basis for immanent criticism of the way in which the political system applies them; this is how one gets from the Magna Carta to the Reform Acts, to the eventual arrival of democracy in Great Britain in 1928.

zdenekv 01.12.09 at 10:25 am

“Hidari I understand that and I did not mean to offend anyone .”

Yes, because comparing somebody’s suggested course of action to Nazism could not be seen as offending anybody, except for hypersensitive PC-ites.

Then again, once you’ve done that, further dishonesty is just one more slice off of the loaf.

1928? 1948 RPA, surely, which abolished the University MPs?

Otherwise, carry on.

Chris Williams : I remember being shocked and dismayed by Walzer’s support for the US invasion of Iraq in 2003. I tend to be less easily shocked and dismayed these days, more’s the pity.

Well, you have been misinformed because Walzer considers –and always have done so–Iraq war to be a clear case of unjust war. Another example of someone who “knows” why Walzer is wrong about this and that. ( see xv of the preface to his J&UW ).

Since I am Rob #26 and different from Rob #18 and #53, I suppose it’s worth pointing out that Phil’s response at #92 fails. That people do by and large do what the law says, that is, that obedience to it is consensual and/or customary, is at best evidence that the law seems like the right thing to do to them. It does not give it in contrast to moral claims, a privileged claim on our observance. Or at least, it does not give it a privileged claim on our observance absent distinctively moral concerns to do with the horrors of living without the sort of solutions to coordination problems laws provide at all. To claim that the law, as such, has a privileged claim to our observance is to claim that we would be (at least partly) wrong to think that laws requiring immoral acts are bad laws. The other Rob (at #18 and #53) seems to be making the other point I was making, that interpretation of the terms DSquared quotes is going to, at best, bring all the moral philosophy back in (and at worst, let people get away with mass murder) – or to put it another way, if proportional’s a rubbish criterion for some system of rules, then excessive is too.

if proportional’s a rubbish criterion for some system of rules, then excessive is too

Well, fair enough, they’re near-synonyms. But “excessive”, in context, is a lot more tightly defined; it at least puts restrictions on the kind of alternative scenario people are allowed to make. In other words, if someone’s got a hot nut for bombing Gaza, under “proportionate” they are allowed to raise all these “what about the possible bombing of New York City”?, whereas under “excessive”, they have to actually claim that a reasonable suspicion of a couple of homemade rockets is a sufficient reason to blow up a hospital, which gives you a lot better chance of spotting them for a nutter. That has to be counted as progress of a sort.

“Proportionate”, in context, just seems to be specifically defined as a blank slate. Walzer actually notes this and says that it needs to be restricted, but never says how and never mentions that anyone else has actually made progress in this direction – whether out of “not invented here”, or because the alternative theory doesn’t give the answer he wants, I don’t know.

For the sake of avoiding confusion, I will append ‘K’ to my name.

I should note that I have never read Walzer (and its quite telling that the Just War tradition seems to have made no impact on – at the very least – the Cambridge Law of Armed Conflict syllabus).

On ‘excessive’ vs. ‘proportionate’ it’s worth noting that the sum total of Article 57 is routinely referred to as ‘proportionality’ by legal scholars and professionals.

I think, Daniel, that your argument doesn’t hinge around ‘excessive’ so much as the fact that the relevant proportionailty calculus has to weigh lives lost against a ‘concrete and direct’ military advantage, as opposed to some more abstract calculation. Whilst this could be construed in a robust manner, in practice (and practice is what counts, because lots of legal language could be construed in lots of different ways) it is read fairly broadly. I think there’s also a good case for Israel to argue that lots of its strikes have been aimed at securing some concrete military advantage – e.g. killing certain military leaders, destroying certain training facilities etc.

I also think that the particular definition of military objectives – as including any target which by its nature, location, purpose or use would confer a military advantage if it were destroyed – really cuts against this. This means that any number of vital civilian services are prima facie legitimate targets. When this is combined with Hamas’ particular situation (as a politico-military organisation) it really allows Israel a lot of scope in what to target.

This means that a balancing test does have to do the work, and unfortunately I still don’t see how military advantage and civilian casualties can be balanced against each other. The test can serve a remedial role in saying ‘this advantage could have been achieved with less loss of life’ but this is so speculative as to be meaningless, the law just defers to commanders.

If anyone has the time there are a few interesting articles on this subject which illustrate just how useless the law can be:

Roger Normand & C. Jochnick. “The Legitimation of Violence: A Critical History of the Laws of War.” Harvard International Law Journal. Vol. 35, No. 1, Winter 1994

Roger Normand & C. Jochnick. “The Legitimation of Violence: A Critical Analysis of the Gulf War.” Harvard International Law Journal. Vol. 35, No. 2, Spring 1994

Fredric Megret, From Savages to Unlawful Combatants

Well, yes and no. The real problem is that civilian objects are defined negatively – civilian objects are those which are not military objects – so the problem resurfaces. This is mitigated slightly by the Article 53(3) which establishes a presumption that buildings normally used for civilian purposes (schools, hospitals etc.) are civilian objects but again this is quite woolly, and I don’t think that anyone is going to construe ‘doubt’ in a way that massively restricts military action.

Thing is though that there are a bunch of services – power, bridges communication etc. which are fair game, as the Normand and Jochnick articles illustrate very well. The wording as regards foodstuff is also pretty problematic becuase although causing starvation is forbidden and ‘specifically civilian’ foodstuff can’t be targetted, again everything is up-for-grabs. When this is combined with the diffuse politico-military nature of Hamas and its operations it really means that proportionality is the ultimate means of defence.

The other Phil, I don’t know I think if crime detection was increased and/or the severity punishment crime rates would go down, but the rate to which that is the case depends on many other factors. Also people will tend to commit minor offenses if they see the law as over bureaucratic or that it has no purpose (within that context).

Sorry: “the bulk of the occupied land” should read “the best of the occupied land.”

Yes, yes, Sebastian, but I didn’t ask “why are lawyers required to focus …” (eg, for purposes of indicting Israeli politicians for war crimes) but “why are we required to focus …” (eg, for deciding what the rights and wrongs of the situation are, broadly speaking).

Of course I think Hamas shouldn’t put Gaza civilians at risk, whatever the provocation constituted by Israeli policy. But I wonder whether it is proper to omit mention of that provocation when condemning Hamas’s actions. In other words, it might be only fair to mention when discussing the subject (as Walzer, of course, does not) that Israeli policy has left Palestinians virtually no nonviolent way of achieving even minimal justice.

This ‘difficult’ case is precisely the problem at question though. Hamas mixes civilian and military all the time.

So did the Vietcong – that doesn’t make the 1 million dead Vietnamese any less dead. It’s called asymmetrical warfare and such tactics have always been and will always be used by militarily vastly underpowered forces. It’s certainly not allowed according to the Geneva Conventions, but to use this fact as an excuse to kill a lot of people means making a mockery of international law.

The problem here is that we now have several hundred dead Palestinians (900?).

‘The fact that Hamas seems uninterested even attempting to segregate civilian and military buildings bears on the fact that those same civilian buildings are getting destroyed (sometimes with civilians in them).’

The bastards! Clearly what Hamas should do is stand in rows of ten, (well segregated from the civiliar population obviously!) with a metre or so between each man wearing clearly marked ‘military’ uniforms (I suggest a bright red jump suit with ‘shoot here’written on the chest) and advance sloooowly towards the IDF front. Obviously any weapons they might use run the risk of collateral damage (as is well known, only the Israeli and US armies possess those clever guns and missiles which only kill bad guys) so they should probably arm themselves with lollipop sticks or loofahs. A non-threatening chant (not too loud, again avoiding the risk of causing alarm and surprise to the delicate flowers of the IDF) might also be helpful: perhaps something like ‘Here we are! Coo ee! Over here!’ or just ‘shoot us now please!’. *

Otherwise no one in the West will take them seriously as a military force.

*running away or in any shape or form attempting to dodge IDF fire will be taken to be a gross breach of the rules of cricket war, and will constitute de facto war crimes.

Hidari, so you essentially say that the laws of war ought not apply to Hamas.

That is well and good. I don’t see it as a stable method of convincing countries to bother with the laws of war though. Perhaps you haven’t thought that far…

Sebastian: What act of provacation causes one to use an ambulance to move combatants or munitions?

The act(s) of making all less desperate and inhumane forms of resistance even more obviously futile as a means of resistance to Israel’s policy of depriving Palestinians of any viable national existence. And lest you’re tempted to further niggling, please note that I didn’t suggest that Israel’s actions had caused Hamas to endanger civilians but that it had provoked them to.

Without continually making war, Palestinians would almost certainly already have a state. They were well on their way in the late 1980s and 1990s.

Mustn’t hijack the thread, but this seems absurd. The Israelis have consistently torpedoed negotiations and have never seriously considered a pause in the policy of creating “facts on the ground,” which is aimed at making a Palestinian state (as opposed to bantustan) impossible.

the familiar idea in the law of ‘intervening wrongful agency’ (novus actus interveniens), where the intervention of another’s wrongful act between my act and some bad outcome ‘negatives’ (in the language of Hart and Honore in Causation in the Law) my responsibility for that outcome.

I’m not aware of any news reports about how Hamas crammed a military target full of civilians after Israel had already fired a missile at it, but before the missile hit. But it sure would be an impressive feat of logistics.

The Geneva conventions definitely don’t allow you to leave an entire country in the state of being a nuclear wasteland to destroy one communication post.

They definitely do allow you to bomb a nuclear silo which has a civilian janitor in it.

Despite daniel’s suggestion that they do, they don’t provide a good chart to figure out what to do in the vast number of inbetween cases. But historically they definitely seem to allow the targeting of military installations, soldiers or other military targets, which include additional civilian damage and/or some number of civilian deaths.

Chris,

We seem to continue talking past each other. I totally agree that there’s a duty to minimize civilian casualties (that’s ‘necessity’) and a separate duty to avoid disproportionate casualties (that’s ‘proportionality’). But both of those are separate from the duty not to aim at or target civilians (‘discrimination’). All three must be satisfied before a military action is morally permissible, but the three are separate and have to be considered on their own.

I was suggesting only that the reduced accuracy of long-range bombardment, by increasing the number of civilians likely to be killed, increases the likely harm and therefore makes that harm more likely to be disproportionate. And it can do that even though the harm remains unintended and therefore not in violation of discrimination. A tactic can satisfy discrimination but still be seriously wrong because it violates proportionality — and most of the critiques of IDF action that I’ve read, e.g. from Human Rights Watch, make only the proportionality criticism (well, that and necessity criticisms) and not one about discrimination.

Your Anscombe quote and Hamas reference suggest that in some cases you can’t aim only at the military target, because you can’t distinguish that target from the civilians surrounding it, hence can’t satisfy discrimination. That’s a more difficult issue, but I’d still stick to my guns about it.

First, I wouldn’t accuse Hamas of violating discrimination for the reason you give. I take it they’re straightforwardly intending to hit civilians (if they can), so they violate discrimination apart from any issues about the accuracy of their weapons.

Second, consider a dual-use facility like an electricity-generating plant, which gives benefits both to the military and to civilians. You can’t eliminate the one benefit without eliminating the other, which implies on your view that attacking the plant automatically violates discrimination. But that’s not how I see it. You can attack the plant intending only to eliminate the military benefit and merely foreseeing the elimination of the civilian one; the question then is whether the harms to the civilians are disproportionate to the military benefit to you of eliminating the enemy military’s electricity. (Let me say that in my view most of the allied attacks on dual-use facilities in the 1991 Gulf War were by this standard disproportionate.) FWIW, that understanding of the issue, where you apply the DDE to the different effects of hitting a dual-use target, was endorsed by a US Air Force lawyer I discussed it with at an APA, though I suspect US military lawyers aren’t the most highly regarded authorities in CT threads.

Or consider an incident from the 2003 Iraq War. Some Iraqi troops fighting US troops outside Nasiriyah retreated into the civilian parts of the city; when they did, the US troops kept firing artillery at them, saying any civilian deaths were the responsibility of the Iraqi troops that brought the civilians into the line of fire. Do you think it was impossible for the the US troops to satisfy discrimination in this case? I don’t see why (though there are obviously large questions about proportionality). They could intend the one effect of the artillery fire (killing Iraqi troops) and merely foresee the other (killing civilians). To repeat: there are large issues about proportionality here, but I don’t think there need be any violation of discrimination. Even when you can only aim at an area, you can intend effects on some people in that area and not intend effects on others.

I think proportionality and necessity are if anything the most vital parts of just war theory (if I can talk just about that rather than baldly of the ‘morality of war’ in general), or at least the ones most at issue in the debates of the last 20 years about the morality of particular wars and particular military targets. And that’s a significant departure from Walzer, who has consistently downplayed proportionality (including in that New Republic piece) even though he’s given more weight to necessity.

‘Hidari, so you essentially say that the laws of war ought not apply to Hamas.’

Yes Sebastian that is precisely what I am saying and don’t listen to the evil hordes of Islamocommunonazies who say anything different. Obviously the Israelis make every effort to sharply differentiate the civilian and military population which is why they have, amongst other things, abolished compulsory military service. And naturally literally every place where IDF soldiers officially congregate is at least ten miles from any populated conurbation.

Phil #102,

“The law claims to provide a framework for the regulation of a society within which diverse & imperfect individuals can freely pursue their interests*, & specifically a framework which is practicable, coherent and intelligible. That in itself gives it an irreducible claim on our observance, irrespective of the content of any particular law.”

First, the law had better actually do those things, rather than just claim to do them, in order to have any irreducible claim on our observance. Second, I’m not sure we actually disagree any more. I think what you’re arguing is that we ought to do what the law says; in general, that seems right to me, precisely because the breakdown of a system of law is usually pretty disastrous (although I think I am more sceptical than you that this is true of the law of war than of common or garden domestic law). That doesn’t rule out criticism of the laws, which I think is all I was originally trying to point out: that a law is a law does not mean that it is well-reasoned or justify refusing to make a case for it. I can perfectly well adopt the attitude that a law should be criticised as an ineffective means to its particular end, or even claim that its particular end is wrong of itself, and continue to advocate obeying it on the grounds that mass disobedience would be enormously counter-productive in all kinds of ways. One might think this was the case with for example drug prohibitions.

“Obviously the Israelis make every effort to sharply differentiate the civilian and military population which is why they have, amongst other things, abolished compulsory military service.”

Huh? I don’t think anyone has suggested that the Israeli soldiers are covered under the civilian protections *when they are serving their time as soldiers*. So…?

And your whole #128 is rather revealing and what have you. I especially love the “not necessarily evidence that the aim of the rockets is necessarily anti-semitic or genocidal”. At least you aren’t such a heavy handed apologist as to completely abandon reality.

so you essentially say that the laws of war ought not apply to Hamas

And you might want to concern yourself a bit more with Israeli war crimes.

In comment 94, above, I wrote “I remember being shocked and dismayed by Walzer’s support for the US invasion of Iraq in 2003. ” zdenekv objected to this characterization of Walzer’s views of US policy towards Iraq at that time.

What I wrote was based on a misremembering of George Packer’s article in the NY Times magazine in December 2002, “The Liberal Quandry Over Iraq.” http://www2.kenyon.edu/Depts/Religion/Fac/Adler/Politics/Liberal-quandary.htm

Whatever the case, zdenekv was right and I was wrong: Walzer did, at that time and in the subsequent months leading up to the invasion, express opposition to war before other measures had been taken exhausting the possibility of resolving the dispute peacefully: see, for example,

Professor Walzer, writing in an Internet edition of the journal Dissent in March 2003, declared: “America’s war is unjust. Though disarming Iraq is a legitimate goal, morally and politically, it is a goal that we could almost certainly have achieved with measures short of full-scale war. . . . At this time, the threat that Iraq posed could have been met with something less than the war we are now fighting. And a war fought before its time is not a just war.”

http://www.firstthings.com/article.php3?id_article=115

I apologize for mischaracterizing Walzer’s position.

If the missile in the silo/launcher with nearby ‘collaterals’ is a fair target because it might be used, wouldn’t most all the male population of Israel between the ages of [?] 18-45 as well as a chunk of the female pop be fair targets as reservists that might also be used regardless of ‘collaterals’ in the market or sharing the same bus?

No. This is exactly the sort of thing that the requirement of concreteness and definiteness does actually help you to clearly rule out.

who point out that Daniel’s fussing about the vagueness of ‘proportionality’ in his original post ignores the (obvious) fact that ‘excessive’ in his supposedly clearer 3) is just a synonym for ‘disproportionate

that’s not actually what Rob said; he specifically said he wasn’t referring to “proportionality” in the fluffy, vague sense in which Walzer uses it, but referring to the practice of lawyers of using the word to refer to the totality of article 57. Article 57 is quite a long article which contains a lot more clauses than the one which mentions the word “excessive”. Perhaps you’d care to be a little less bloody patronising, would you laddie?

#129 That doesn’t rule out criticism of the laws

But it does rule out one kind of criticism of the laws – the existence of a specific and codified body of law on a subject means that you can’t criticise the lawmakers for not having considered that subject. I mean, you can criticise drugs policy on any number of grounds, but someone writing an article which concluded “critics of the DEA or the Medellin cartel ought to give some serious thought about the circumstances in which it should be allowed to sell cocaine” would surely have missed the point a bit.

#136:
This is said in the confident tones of established dominance, but it has little to do with any rational argument, and everything to do with power.
It’s very common, that tone, in my experience, in the offices of certain kinds of police, and I imagine it’s virtually constant in the voices of Israelis at the checkpoints in Palestine. It’s repellent to read, and I can only imagine what it must be like to confront it personally.
As with Daniel’s “up yours”, which I second, again, emphatically, which clearly came from something more human, and humane, than mere intellectual frustration, Hidari’s arguments are plainly made from an outraged heart. Those arguments are made against and from within an empire as vast and as corrupt as Caligula’s in its time.
There’s no respect paid to that in your writing, and assumedly there is none in your own heart.
What’s missing from your voice and from every other voice of your affinity group I hear now, is any recognition of compassion in the other, let alone for anyone but yourselves.
It’s a sadistic hour, evil has the upper hand everywhere.
You should enjoy it while you can.

zdenekv:

“Had it been possible to know of the plans of the September 11 hijackers and to intercept their flights on their way to their destinations , then the decision to destroy the planes and the hijackers together with the shields ( innocent hostages ). The decision might be accaptable because we know that the hostages are doomed anyway.”

as an ex-army conscript and paramedic, i can tell you that had that been the case, the focus would have shifted to moving heaven and earth to bringing those people down safely. no effort would have been spared, and if, despite all that, the hijackers had destroyed a plane, the deaths would have been on their heads. we would have done the right thing, consistently and without compromise. and, i’m pretty sure that given those super-human efforts, given that insistence and focus, there’s a chance some people would have been saved. saving lives always comes first. period.

it’s shows a remarkable detachment from reality to treat a situation as you did, like it were a type of algebra and your job was to make it neat.

i blame television. it encourages this kind of moral party-game, without indicating any consequence.

Hmm, I never thought I’d have any reason to thank zdenek in a CT thread (though I think the harms he causes to civilized discourse greatly outweigh the benefits he brings). I just looked at Tom’s article and it is a very helpful discussion of some of the issues (and I see where you are coming from now, Tom, wrt to the relationships between proportionality, necessity and discrimination – wish you’d alerted us all to the paper earlier.) Not sure I agree with everything there, esp. wrt to the balancing of harms to one’s own and the enemy’s civilians, but that’s another matter.

roy 139
“What’s missing from your voice and from every other voice of your affinity group I hear now, is any recognition of compassion in the other, let alone for anyone but yourselves.”

This sort of esoteric moralizing is a red herring it seems to me. The question is whether terror ( whether state or non state ; that is , whether it is carried out by Israel or Hamas ) can be morally justified and the point you make about narcissism / selfishness of people who ask this question and seek an answer to it is irrelevant here. On the face of it, it seems like the immunity from deliberate harm innocents enjoy rules terror of any form out but that does not get us very far because it only raise a deeper question about how absolute the immunity in question is ( can we have moral knowledge of something like that ? ). Walzer for instance does not think that it is an absolute and that it can be set aside in what he calls “supreme emergency”. What I want to know is whether Walzer is right and not whether he is a narcissist.

Since nobody seems to have posted a link to Tom Hurka’s paper: a PDF file.

In the morality of war ‘discrimination’ refers to the prohibition against aiming at noncombatants

It also refers to the duty to distinguish between military and civilian objects, to check that you are not aiming at noncombatants, and to call off an attack once it becomes apparent that an objective is not a military one or that the attack could cause incidental loss of civilian life or damage to civilian objects. All of which are very difficult for a bombardier-at-a-distance to achieve; an artillery commander might be able to use spotters to tell him whether a firing position has moved on and been replaced by a party of nuns, but someone flying at 15,000 feet would find it very difficult.

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;

It’s a positive duty to ensure that attacks are directed at a military objective, not to refrain from directing them at a civilian objective. The “Werner von Braun defense” (when the rockets go up, who cares where they come down?) is not available, and that seems to be exactly what you’re suggesting here.

They could intend the one effect of the artillery fire (killing Iraqi troops) and merely foresee the other (killing civilians).

Which is as clear an example as one would need about why the requirement for “concrete” is in there; otherwise one’s permitted to just chuck up a shell and then decide once it’s exploded whether you intended the consequences, a form of recklessness about noncombatant deaths which it seems pretty obvious is the sort of thing that any code of international humanitarian law would want to forbid.

And it doesn’t really go very well for your case for “limited negative reciprocity” that what you’re trying to forbid here is the practice of retreating into a city, a military tactic which is as old as cities. Presumably the Iraqi commander who ordered this manouvre simply intended to put his troops in more defensible positions, and only foresaw that the consequences would be that an urban area would be shelled (actually I think he would be much more entitled to assume that the USA would not respond with an indiscriminate attack). The entire problem is that once you start down the road of this “see what you forced me to do, Johnny” line of thinking, you predictably end up with a mountain of innocent casualties that are apparently nobody’s fault.

Oh and by the way, hundreds of very prominent anonymous legal experts agree with me too, in email.

DSquared #137

“you can criticise drugs policy on any number of grounds, but someone writing an article which concluded “critics of the DEA or the Medellin cartel ought to give some serious thought about the circumstances in which it should be allowed to sell cocaine” would surely have missed the point a bit”

Neither the DEA or the Medellin cartel occupy the relevant position here. The relevant position here is those who make law, rather than those who attempt to enforce (and certainly not those who attempt to make money by breaking) it. After all, the claim in question is, are the standards of international law good? Criticising drugs policy, rather than actors whom it applies to, on the grounds that it hasn’t thought very hard about its own moral costs seems to me exactly the sort of thing one would want to do. Anyway, neither Israel nor Hamas occupy the position that the DEA or the Medellin cartel do: neither is an agent tasked with enforced the law just as neither is a criminal conspiracy whose revenue depends entirely on breaking the law. Ideally – and the actual case obviously diverges seriously from the ideal case – their relation to the laws of war would be like that of a citizen who accepted the constraints of the law but was not particularly tasked with enforcing them.

Rob, my point was just that there is actually a whole load of law, and it’s a bit strange to ignore it, particularly if you’re using terms like “proportionality” which are also used by lawyers in the field in question. If you don’t like that example, substitute something like Larry Lessig’s work on intellectual property – “Code” is a book written entirely about the adaptation of intellectual property law to cyberspace and based on a criticism of the way in which IP law has been developed. If Michael Walzer had written “Code”, it would be a bunch of first-principles arguments about the rights of creators of content, and it would end by saying that computer programmers and the MPAA were awaiting the advice of philosophers about what to do.

My particular objection to the last paragraph of Walzer’s article is really quite important, and in reflection I don’t think that the “stick out of his ass” joke nearly conveyed how angry it made me. We’re talking about killing civilians here, and in a situation where there are quite definite war crimes issues. Walzer makes it seem as if it’s a grey moral area where nobody’s to say who’s right and who’s wrong, and strongly hints that soldiers don’t really have any specific set of rules that they need to follow (why else would one pretend that they’re waiting on the guidance of “critics and commentators”?). The practical effect of that is to make it much easier to provide political cover for the killing of civilians.

I also don’t like his habit (shared by a lot of just war theorists) of saying that principles like negative reciprocity which have the effect of protecting civilians are “troubling” and “difficult” and “should give us pause”, and then moving on, giving the strong impression of having made an argument as to why the protections of civilians should be weakened or ignored, without actually having done so. To put it bluntly, these questions are not particularly “troubling” or “difficult” from an ethical or practical point of view; if you value innocent life, then any principle which increases the frequency with which innocent people are killed is not going to be acceptable. What’s “troubling” and “difficult” is the conclusion – that the USA, Israel and the other countries that refuse to sign up to the Protocols, might be doing something which is very wrong.

To put it bluntly, these questions are not particularly “troubling” or “difficult” from an ethical or practical point of view; if you value innocent life, then any principle which increases the frequency with which innocent people are killed is not going to be acceptable.

They seems potential to cause some fairly troubling and difficult questions to me – when a country signs up to the Protocols doesn’t it give their enemies either an extra political or military advantage to put innocent civilians in harms way more often than they normally would? So is it morally correct to not sign up to them, especially if you are the sort of country that has lots of enemies – particularly ones that don’t have the power to fight convenential warfare to achieve their aims? Or do you consider that they are going to do that anyway and a country signing up to a (presumably) somewhat binding agreement to take extra measures to avoid civilian casualties will have no impact on the strategy of their enemies? Or that the scale of any such effect would be smaller than the benefit gained?

(Note I am not asking these rhetorically, my own opinion in this area isn’t settled)

Stuart #155. I seem to have a dim memory of someone claiming in an earlier comments thread (2 years ago) that (some of the restrictions in) the protocols are binding even on those who don’t sign up to them since they merely codify customary international law”

Ah yes:

https://crookedtimber.org/2006/08/04/israels-war-crimes/

Hidari, “Nice try Sebastian, but as I’m sure you are well aware I am not an ‘apologist’ for Hamas, as I am neither a member of nor a supporter of that political party. Still the smear word ‘apologist’ will achieve more than logical arguments ever will, eh?”

Your argument at #128 speaks for itself. Anyone whose opinion about my logical skill that I’m likely to care about, including vast numbers of people who generally disagree with me, aren’t likely to look down on me too much for labeling you apologist for that one. Your personal mileage may vary, but I’m willing to just say “please read his 128” and judge me on that.

d-squared, “All of which are very difficult for a bombardier-at-a-distance to achieve; an artillery commander might be able to use spotters to tell him whether a firing position has moved on and been replaced by a party of nuns, but someone flying at 15,000 feet would find it very difficult.”

Here a little actual military knowledge would be useful. Bombardiers-at-a-distance often use spotters in exactly the same way and with pretty much the same frequency as artillery commanders. And to the extent that they are bombing or shelling buildings, if the building themselves are legitimate targets, they aren’t particularly likely to move.

Dsquared #153,

I realise this has probably gone on far too long already, but my recollection of J&UJW is actually that it’s pretty historically informed and not a whole load of abstract theorising (which isn’t to say that that’s true of the relevant op-ed). A lot of this disagreement may partly be over how law-like international law, and particularly the international law of war, really is anyway, but that’s probably best left for another day. Also, it may be worth noting “that if you value innocent life, then any principle which increases the frequency with which innocent people are killed is not going to be acceptable” is not uncontroversial. Say I value life. Does that mean that I should try and reduce all incidences of suicide? Not straightforwardly: it might require me to reduce certain kinds of incidences of suicide, but not all. That I value x does not mean that I must pursue x in every form available, because some of its forms may cut against what’s valuable about it. To put it another way, not everyone’s (straightforwardly) a teleologist. Lastly – and genuinely lastly – if my recollection of J&UJW is right, the thing that marks Walzer as engaging in apologetics is that he says nothing about the effective siege of Gaza. My recollection of J&UJW is that Walzer was very much against sieges, because they inevitably involved blurring the distinction between soldiers and civilians; he goes on and on about the siege of Leningrad, for example. Thanks for putting up with me.

“1. A belligerent cannot be allowed to gain a military advantage by acting illegally
2. Therefore, one is entitled to disregard (to a greater or lesser extent) civilian collateral damage which occurs as a result of the enemy’s failure to fulfill its duty to protect civilians
3. Therefore the siege of Leningard/the bombing of Gaza/the Hyde Park and Regents’ Park bombings were OK.”

It depends on what you mean by ‘greater or lesser extent’ as that covers a lot of ground. I think you still have to tie it to a legitimate military target. If someone wants to argue that Hamas using ambulances illegally means that all ambulances everywhere in Gaza ought to be subject to bombing, I would say they are crazy. But let’s say that delaying ambulance access to civilians would normally be a war crime (I don’t really know if it would be, but for the sake of argument….) If Hamas uses ambulances illegally, delaying ambulances to search them for illegal use is no longer a war crime because the illegal conduct cannot be used to gain advantage. Similarly if you put your strategic operations command on top of an apartment, while bombing apartments isn’t normally allowed, you can’t gain immunization from attack by doing so.

The problem if you don’t do so, is that you incentivize the putting of civilians in harms way–which goes exactly against the aims of the laws of war which are to incentivize the removal of civilians from harms way as much as possible. And it isn’t a theoretical problem, we have actually seen it play out that way.

Now maybe you disagree with my premise, but it seems to me that the laws of war are largely about trying to get warring parties to hash it out amongst themselves in such a way as to cause less civilian damage. It does so in two ways. First it tries to as-clearly-as-possible separate civilian people and objects from military people and objects. Second it tries to get wars over with by having the warring parties actually fight it out with each other, and kill each other, and make peace with each other. An interpretation which incentivizes human shields and the like causes problems in both those areas. If you interpret the laws of war as you seem to want to, it looks like they would put MORE civilians in harms way and that wars would be LONGER which tends to impact civilians more than shorter wars.

That seems deeply counterproductive to the purpose of the laws of war as I understand them.

“I think Hamas should lead the Palestinians in long-term mass nonviolent protest, no matter how unlikely to succeed in the face of Israel’s fantastically disproportionate power and fanatical unwillingness to face up to its moral responsibilities. ”

I would say it is rather likely to succeed. Unless my recollection is way off, the Palestinians have seen the most progress in their relatively less violent periods.

PS – See also the remarkable recent essays by Henry Siegman in the New York Review and elsewhere.

I guess my point is that the concrete & definite military advantage test can be applied to the initiation of armed conflict as well as its conduct

Well it can, but nobody thinks its does, and there isn’t any evidence to see it does. It’s a different legal regime that governs this question.

I also think this could be hugely problematic insofar as the existence of an armed conflict is a question of fact – if two international parties are fighting (and here things can get very complex in the Israel-Palestine situation) then there is an armed conflict and IHL applies.

If it was open to people to argue that an armed conflict wasn’t happening it would also be open for them to argue that IHL didn’t apply (and there are many situations in which the IHL regime is better than nothing at all).

Walzer’s version of proportionality, which (as Tom has shown) ultimately asks belligerents to calculate an arithmetic tradeoff of ‘our’ casualties (suitably weighted) vs ‘theirs’. (I find that idea grotesque, although I think Pashukanis would have liked it.)

Hmmm. In a way though, I find this particular version of proportionality could at least have more traction, especially if it was integrated with a sufficiently robust means of working out the ‘potential’ casualties and sans the type of ideological baggage Waltzer et al bring to the table. This is because at least the lives lost on either side are commensurate with one another and crucially if Israel and its supporters wanted to invoke their essentially racist presuppositions about the worth of Arab lives they’d have to do it explicitly.

I’m not sure that Pashukanis would have approved of a universal test of the type you’re suggesting. I suspect he’d argue (and one is tempted to agree this is the right way) that there is a difference between the violence of the oppressor and the violence of the oppressed etc. and that our judgments about these sort of things can’t be made in isolation of a partisan, materialist stance on the issues.

The point is whether, from the standpoint of the bench I’m temporarily occupying on Mount Olympus, this specific conduct can be justified by invoking legal arguments which I find persuasive.

But the question has to be why you find it persuasive. Because nothing you’ve written suggests that legal argument per se is capable of swaying people one way or the other. If legal argument was actually capable of doing this then we wouldn’t be seeing such broad disagreement about what the law requires. To my mind you’ve already conceded too much, if legal argument can be invoked to justify any conduct, and people have divergent opinions about what law requires then we’ve already moved past the idea that law is determinate.

I should also say that I don’t tend to think of indeterminacy as a function of language. Instead I think it’s rooted in ‘opposing principles’ in the law (typical CLS indeterminacy) meaning that lawyers can justify any result by reference to these opposing principles.

I’ve yet to see an argument like yours that has persuaded me as to the determinacy of the law, as they all seem to concede too much (e.g. Dworkin, who I think sounds dangerously like a naive Schmittian). However, I’ll break off now as this feels like it should be the content of a blog post and not a blog comment.

There has been no fundamental progress toward a viable national community for Palestinians and adequate reparations for those displaced by the 1948 war. With consistent US support, Israel has never wavered in its determination to keep the lands conquered in the 1948 and 1967 wars. Its settlement programs, intended and carefully designed to make Palestinian economic and political integration impossible, have continued without a pause, regardless of how the public-relations charade of negotiations stood at any particular moment. Israel has either attached impossible conditions to any agreement that looked to have a chance of succeeding, or else withdrawn it.

I’m sorry, Sebastian, but your talk of “progress” and apparent assumption that Palestinian concessions have ever had any effect on Israel’s determined expansionism make me suspect that you have thoughtlessly assimilated the conventional wisdom on the Israeli-Palestinian conflict.

actual Palestinian people were doing much better during the times when they were fighting less with Israel than they were doing when they were fighting with Israel

Well yes, obviously, since Israel is in the habit of inflicting collective punishment on the Palestinians whenever some of the latter take to violent resistance. This is, as you say, not FAIR.

Well at least we understand that they were doing better off when there wasn’t as much violence. That is a start, since you denied it earlier…

amplifying on #175, the reason it’s so difficult to come up with a non-straw counterexample is exactly the one Rob identifies above; that there’s a lot of flexibility built into the definition of “excessive”. So in order to come up with an example of negative reciprocity that’s clearly a counterexample to the Protocols concept, you need to create a hypothetical situation in which the civilian deathcount is clearly excessive relative to the military objective, or where the military objective isn’t concrete and definite (like intimidating a civilian population), or where the attack is indiscriminate. It’s therefore no coincidence that any such hypothetical case is going to end up looking pretty unattractive as a candidate for something you’re going to argue should be allowed. I think that this shows how good a concept the Protocols are, and remain to be convinced that the just war theorists are going to come up with anything better; thirty years of saying “well it’s difficult” might not actually be heading toward a conclusive result.

since you denied it earlier

Please, Sebastian. What I denied earlier was that there had been “progress”: your word, by which you clearly meant “toward a resolution of the Israeli-Palestinian conflict.” Perhaps we could drop this silly quibbling? It’s basically off-topic, anyway — I apologize for introducing the subject of the historical/political context of the latest round of atrocities.

They want to say that killing police officers is a war crime EVEN IF Hamas uses them as a paramilitary group

This was actually very borderline indeed. Whatever your views about whether the Hamas police are occasionally used as “a paramilitary group” (whatever that means – I’ve not seen any evidence that they carry out rocket attacks, for example), they were at their passing-out parade and I’d be very much inclined to consider them as noncombatants at the time they were killed. Compare the Band of the Royal Green Jackets, who had seven of their members murdered by an IRA bomb while playing selections from Oliver at the bandstand in Regents’ Park. All the bandsmen were soldiers, who took their turn in Northern Ireland. But it’s a pretty twisted standard which counts them as anything other than noncombatant victims of a crime.

(as I mention above, this is a matter of some pressing concern to me, as the Albany Street Barracks, home to the reserve regiment of the SAS, the Horse Guards and the British Army’s bomb disposal experts, is less than half a kilometre from my house. Colocation of military objects, how are ya).

I’m not sure that Pashukanis would have approved of a universal test of the type you’re suggesting.

I didn’t say approve, I said he’d have liked it. More callously, I could say he’d have found it amusing. Labour hours as universal equivalent, and so forth.

To my mind you’ve already conceded too much, if legal argument can be invoked to justify any conduct, and people have divergent opinions about what law requires then we’ve already moved past the idea that law is determinate.

Well, I’m a closet Pragmatist – I think the fact that you and I and Lord Hoffman can agree on what the state of the law on X is, most of the time, is just as important as the fact that we disagree radically some of the time. Possibly more important.

I’ve yet to see an argument like yours that has persuaded me as to the determinacy of the law, as they all seem to concede too much

I’m probably the wrong person to have that debate with, as my basic starting-point is that the law is ultimately built on sand and it doesn’t matter. (The Pragmatist point is that just about everything else is also built on sand, although personally I’d make an exception for wage labour and commodity production.)

Human Rights Watch at times leans over backwards to give Israel the benefit of a doubt. For instance, there is this

“Our research into more than 94 attacks shows that Israel often, even though not deliberately attacking civilians, did not distinguish between military objectives and civilians or civilian objects as required by humanitarian law. The chief cause of this wrongful and deadly selection of targets was Israel’s assumption that Lebanese civilians had observed its warnings to evacuate all villages south of the Litani River, and thus that no civilians remained there. ”

I’m going to guess the HRW authors were snickering as they wrote this. Who would have dreamed there might still have been civilians in South Lebanon?

As for why Israelis would target civilians–for terror purposes. If Lebanese civilians support Hezbollah or just allow them to have their own military, then Lebanese civilians will suffer the consequences.

Again, a little military knowledge would do you a lot of good.

A little less total sophistry would do you a lot of good. There was no military objective beyond the residential areas of Beirut and Qana which the IAF might have been overflying. The AA guns on the residential buildings were not defending any military objects. The Hezbollah military positions were to the South of Lebanon, miles away from the residential buildings.

Do you understand that an anti-aircraft building almost cannot defend the building it is on?

The more I think about this, the more it’s clearly bollocks. Ships have anti-aircraft guns on them.

Therfore it IS almost never a civilian object in the way you seem to think?

This doesn’t follow in any case. Even were I to spot you this highly doubtful assertion about AA guns, a residential district could be protected by a battery of AA guns placed on top of the tower blocks. I am almost certain that this is pretty much the only way that you could organise AA protection of a city. Any air defence of LB Camden would probably involve putting an AA gun on top of UCL Hospital, but it would remain a civilian object.

I am perilously close to concluding that you’re playing your hand a little too aggressively for your cards.

I think this AA gun argument is pretty trivial–it’s not like there’s some shortage of evidence that Israel targeted civilian infrastructure and attacked civilian refugees. But in the interest of fair play, I suppose we should get into the caliber of the AA guns and how high up the Israeli planes were and what weapons they used and whether the AA guns posed any threat to them, etc…

My impression is that in WWII small caliber weapons (the 20 and 40 mm guns) were short range and were for protecting the ship they were on, while the bigger guns would be aimed farther out and the main protection the ships provided was probably just to provide a tempting target. The fighter planes did most of the real work shooting down enemy planes. I could be wrong. I thought modern ships that screen carriers used guided missiles rather than guns. I don’t know what an “antiaircraft gun frigate” is. I think modern ships have guns like those 20 to 30 mm multibarrel Gatling gun style Vulcan cannons that take out antiship missiles in the final seconds before they strike. Those would be short range. But this is all based on casual cable TV watching (plus reading about WWII naval battles and some vague recollection as a kid reading that after WWII, long range antiaircraft guns were obsolete.)

Not that I care.

Put another way, if Israel hit some antiaircraft guns on top of an apartment building, so they could hit another target further on, we’d still want to know what the other target was, a target important enough to justify hitting a gun sitting on top of an apartment building. And nobody claims Israel hit only civilian targets.

B’Tselem: Gaza woman killed by IDF despite waving white flag
Up all yours.

There is nearly anything on the internet, including an interesting article about short range AA guns of the Royal Navy. It does not seem to support your view at all, Sebastian.

your view that most defensive AA guns

No, my view about the AA guns on Lebanese tower blocks. Which is not even essential to my point, but I do hate this blustering bollocks.

Your view about the necessity of putting AA guns on Lebanese tower blocks to protect the civilian apartment buildings themselves, as opposed to shoot at planes flying overhead on their way to other things, is wrong.

And I don’t know if it is *essential* to your point, but it is rather important to the discussion, as the bombing of them is something constantly complained about despite the fact that it is almost certainly allowable under the Geneva Conventions.

And again, you are the very master of blustering bollocks. Perhaps that self-knowledge causes you to see it everywhere.

Your view about the necessity of putting AA guns on Lebanese tower blocks to protect the civilian apartment buildings themselves, as opposed to shoot at planes flying overhead on their way to other things, is wrong.

I don’t agree with this, and in any case, there were no “other things” which were military objects that the IAF was on the way to. The IAF did bomb residential districts of Beirut, and they did come under AA fire while doing so (from, by the way, both Hezbollah and the Lebanese Army). Your argument seems to be that this AA fire itself made the residential districts of Beirut a legitimate target. That’s crazy.

It’s not about condemnation Sebastian, but about recognising the situation as it is. It is not a war between 2 states, but a war between a colonising entity that happens to be trying to become a “legitimate” state, and its ghettoised victims. The ghettoised victims have no choice of targets, and effectively no choice of tactics. They can only do what is available to them. Your call for them to engage in non-violent resistance is absolutely pointless, and (though it might not be that you are one of these people) it is the first demand of people who want to extinguish Palestinian property and rights that they engage in this useless tactic (where is their gandhi, etc.).

Palestinians can’t throw themselves in front of bulldozers and tanks because the Israeli state denies their humanity – they just get bulldozed (even american students do!) They can’t find a legal remedy for their lost land because they have no legal rights and no state power. They can’t demand international redress because the international community was their first and most regular betrayer. And they can’t engage in military confrontation with the organised arms of their colonial oppressor because they can’t reach them. But there right in front of them, sitting on land that the Palestinians used to own, are a bunch of state-subsidized hateful zealots who regularly take pot-shots at them, and have an organised militia to defend them. The only choice available to them to get their land back is to drive those people away. And to act as if those settlers aren’t legitimate “military” targets (for a people denied a military, whose police forces are murdered routinely and called “paramilitaries”) is just stupid stupid stupid. Given these facts, there is no concrete military objective for the Israeli state that we should or can legitimately recognise. Their only military objective is to continue to deny the Palestinians their basic humanity, in pursuit of which every current atrocity the Israelis commit is a very definite military objective in itself. But we shouldn’t be allowing them to pursue these objectives, nor should we allow them to rebrand them so that they can get away with it by stealth.

On a different but related theme, occasionally raised here and elsewhere, the idea that Hamas have brought about this latest disaster so they can be rescued by the international community is also ridiculous. The occupation has been a 60 year disaster for Palestinians and in all that time the one thing they could be absolutely certain of was that there was no international rescue no matter what atrocities were perpetrated against them. Why should anyone think they are trying that tactic now?

‘Israelis should not be settling in them and the country of Israel should not be creating infrastructure and otherwise defending them. I absolutely agree that the settlements ought to stop.’

The interesting question is: are the colonists ‘civilians’ in the pure sense of that word? Given that Israel has no intention of eliminating the colonies in the West Bank (they have made that very clear) and are probably now regretting demolishing the colonies in Gaza, and (this is a big assumption) assuming that military action is justified in that colonists are de facto aggressors, are the colonists legitimate targets (this is complicated by the fact that some colonists are/were relatively peaceful: this is hardly the case with many/most Israeli colonists)?

zdenekv, you consistently exaggerate Hamas’s motives. It’s disingenuous to ignore every dog-whistling fascist statement that comes out of an Israeli govt spokesman’s mouth, while playing up the importance of every similar statement from a Hamas official. If you look at the empirical evidence – the behaviour of both groups – the only organisation with any truly destructive intent is the IDF.

You are also ignoring the entire discussion of colonisation. Hamas use different tactics to the PLO because they aren’t in teh same position as the PLO.

Further, discussion of “legitimate” vs. “illegitimate” wars against colonising states is just silly. Would you have argued to an Aborigine in the late 19th century that their desire to get whites out of Australia was “illegitimate”? Only if you’re a lunatic defender of genocide.

I don’t think they’re incompatible, are they? In general I think it would be better if Hamas didn’t do what Hamas does; but I think we are not in a position to judge them, being not confined to a ghetto under a policy of murder and starvation, our land having been stolen. At least, I’m not, and I don’t like to cast too many stones.

But regardless of Hamas’s low level crimes, Israel’s actions now are not in pursuit of any concrete military objective, they are continuation of its destruction of the Palestinian people, they are the violent continuation of its colonising plans. This means that under either the claims of just war or the protocols, they are profoundly wrong.

I might add that Benjamin Netanyahu apparently open advocates the ‘destruction of Palestine’ and ‘Denies Palestine’s Right to Exist’ (a hysterical and emotive way of putting the fact that he apparently opposes the two state solution, at least in its present mooted form). This is not a trivial point as it is Netanyahu that Olmert is trying to politically outflank (from the right).

Moreover, all this talk of Hamas says this and Hamas says that ignores the crucial point : even if Hamas was genocidal it lacks the means to carry out genocide at present, and this is unikely to change at any point in the foreseeable future ,whereas Israel currently has the ability (and apparently the intent) to carry out genocide against the Palestinians.

sg :
” … but I think we are not in a position to judge them, being not confined to a ghetto under a policy of murder and starvation, our land having been stolen. “

Sorry but I don’t understand this . First of all you say that we cannot judge their actions but then you say their are guilty of low level crimes , but this clearly involves judgement ; again , this strikes me like an incoherent view.

Secondly and more seriously, the idea that you cannot assess someone ‘s actions from a legal point of view or a moral point of view is practically unintelligible. Just because they P is in a ghetto or are close to starvation is a red herring and does not provide excuse or justification for murder . For this to work you would have to show that P is not an agent/person or something like that which as far as I can see is wildly implausible. Hamas are not really persons ; this is crazy .

Oh good, Glenn Greenwald read Friedman today. It would have saved me the trouble of posting the Friedman link here and a couple of other places if I’d known.

With verbal rockets flying all over this place, the discusion has finally come to the title of the topic: ‘just war’, or just war.

As far as I can tell nobody made the basic distinction here above between justness of a war, & the justness of acts of war. To me it is obvious that a war can be just – at least justifiable – & at the same time include some acts of war which are blatantly illegal (remember Dresden).

It is almost obvious that the IDF is guilty of some illegal war acts: they use cluster bombs, don’t they? That doesn’t make it obviously true that the current war they wage is not just (remember Dresden again). The confusion is so pervasive in the world press that ‘proportionality’ somehow is asked to apply to the over-all body count of the war – which is simply ridiculous: to engage in the activity of war is to want to defeat the other i.e. to inflict more damage to them then they’re inflicting on you. Within this context the war crime is the act of war in which damage is done to civilians as this is just damage and not damage that is relevant in the context of winning the war (remember Hiroshima).

On the background of such confusion it frankly is not a coincidence that the discussion is going emotional and partizan to the parties of the conflict.

A further confusion that will probably arise now is that between the actual reality that led to an actual conflict of arms and the broader context within which the conflict arises.

Most certainly Israël has the wrong end of the stick in the broader context; if anything it is fully in conflict with long-standing UN resolutions. That being said they were attacked and whatever the context it is not de facto unjust to take on your attackers – no broader context can require a party to sit & wait until its attacker has mastered the skill of inflicting large scale damages. Once the attacks cease the negotiations to avoid further conflict obviously do need to take account of the broader context.

Maybe it is no surprise that the latter sentence paraphrases the most recent UN resolution.

Hidari #212 :

“… are the colonists ‘civilians’ in the pure sense of that word? Given that Israel has no intention of eliminating the colonies in the West Bank (they have made that very clear) and are probably now regretting demolishing the colonies in Gaza, and (this is a big assumption) assuming that military action is justified in that colonists are de facto aggressors, are the colonists legitimate targets (this is complicated by the fact that some colonists are/were relatively peaceful: this is hardly the case with many/most Israeli colonists)?”….

This is a good question. The colonists don’t seem to be “perfect bystanders” who enjoy complete immunity ( babies , small children ,as well as objectors who take no part in the conflict ) and nor are colonists like “imperfect bystanders” who support the war in their harts but do little or nothing to exhibit their support. Colonists are more like “cheerleaders ” or “willing ancillaries” who explicitly support the war effort. If colonists are indeed type of ancillaries then using lethal force against them may be justified but of course Hamas does not try to distinguish the perfect bystander from imperfect bystanders or from the cheerleders / ancillaries. That is why their tactics are without any doubt criminal.

“…. What would you suggest they do? Demonstrate? Send angry letters? That’s a complete crock . I have no doubt that you in their position would be doing the same thing. …”

They are entitled to use arms of course and resist Israel etc. Again you are running two different things together : what they cannot be allowed to get away with ( they must either renounce terror or be defeated ) is to use terror . Why are you confusing armed resistance ( just )with terrorism ( unjust )? What is so hard to understand about this distinction ? The way you think about this issue makes it clear that you don’t take Just War Theory or international law seriously and that is why your defence of Hamas cannot be taken seriously .

sg: For what it’s worth, I find your recent comments on this thread extremely cogent — decisive, really. I’m sorry they’re wasted on zdenekv.

What is terrorism anyway ? Here is Tony Coady’s definition ( “Morality and Political Violence ” 2008 ) : ” A political act , ordinarily committed by an organized group , which involves the intentional killing or other severe harming non combatants or the threat of the same or intentional severe damage to the property of non combatants or the threat of the same . ”

What then is wrong with terrorism ? It is condemned under the moral principle –as I have been arguing — of discrimination which is part of just war doctrine. ( jus in bello to be more precise ). Hamas obviously is a terrorist organization according to this definition because it explicitly flouts the principle of discrimination ( this is obviously the core of force behind the claim that Hamas is a criminal organization ).

“The simple problem here is that the laws of war – either just war or the protocols – were not invented to handle the case of a colonising state in conflict with its marginalised victims….the protocols were shredded from the start. “

This is wild & desperate stuff. You are so eager to excuse and justify criminal and vicious behaviour of Hamas that you are willing now to claim that morality and law do not cover the Palestinian -Israeli war; you are suggesting that the conflict is not taking place in a moral space because Israel and Hamas operate in Hobbesian world in which morality and legal conventions have no traction.

Even if this weird idea made sense it cannot be usefully invoked to defend Hamas for two reasons : first if Hamas cannot act wrongfully , because it and IDF are waging the war in a Hobbesian world, they by the same token cannot act virtuously . Second and more serious problem is that with this move Israel is completely off the hook because you are giving it a licence to do whatever it chooses on the battle field . There are simply no moral rules now that apply to it on your view : killing non- combatants ? No . Committing genocide ? No . Committing host of other war crimes ? No, does not apply etc. Can you see that this way of “defending” Hamas against legitimate criticism is not doing them any favour and is the last thing you should want to fall back on?

zdenekv 228, I don’t have to “fall back on” this moral defense of Hamas actions because Israel already have, in 1948, and have been doing all the things you describe ever since, free of criticism and subject to a surfeit of defense in the west (to which quota you merely add). Back when Hamas were a mote in the Israeli intelligence services’ eye, Palestinians tried the alternatives of non-violent resistance. Their children were slaughtered in the streets. Why should they not have extended to them the moral carte blanche which Israel have been granted by the community of nations since 1948? In fact, isn’t there a place for their situation in “just war” theory, which is described as “national emergency”? Exactly the situation Walzer tries to invoke for Israel…

But let’s suppose for a moment that Hamas have to follow the rules of war that their enemies don’t. Then let us suppose further that they somehow achieve their military objective of regaining their land, i.e. the settlements. Now they have to evict from those settlements all the women and children (the “perfect bystanders”). How do you propose they do this non-violently? In short, how can Hamas (or any other Palestinian force) achieve their political redress without violence towards “perfect bystanders”? Those perfect bystanders need to have their “property” taken from them by force.

Sure, a political settlement could potentially avoid this. But political settlements can’t be made with colonising states. You may not like it, but the best way to avoid this unrestrained war is to stop the colonising state, which after all is the Leviathan in this Hobbesian world. I don’t see much evidence of anyone except Hamas trying, however, and I do see a lot of evidence of zdenekv-style commentators trying to avoid recognition of the true nature of Israeli aggression, thus continuing to abet their ethnic cleansing.

that’s a silly analogy zdenekv. The better analogy would be if the axe-weilding maniac had an innocent child strapped to his chest while he tried to batter me to a pulp.

But all these analogies are silly aren’t they? We have a perfectly real situation to discuss. And you don’t seem willing to address straight on the various conflicts between the morality you propose (only) Hamas should follow, and your implied support of the fundamental Palestinian goal of living freely and free of ethnic cleansing. So can you explain to me a) how Hamas can use non-violent methods successfully b) how they can use violent methods against a force they can’t reach c) how they can get their land back without removing the people currently on it d) whether they are justified (as Walzer claims) in breaching basic laws of morality if they face a national emergency and e) how the laws of war can be applied in an illegal (colonizing) war, when the colonisers military objective is the destruction of civilian life?