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

by Daniel on January 10, 2009

One of the inevitable consequences of any Middle Eastern conflict is the collateral damage caused by the unprovoked and disproportionate attacks which tend to be launched by Michael Walzer on his own credibility (this joke first made on CT here). His latest is a waffly piece of blah in the Even The Liberal New Republic, on the general subject of “proportionality” and collateral damage to civilians.

SPOILER ALERT: don’t click on the “read more” link if you don’t want to find out whether or not he decides that the State of Israel is broadly justified in its latest actions.

I kid, I kid, of course. I have no real problem with the way he shapes the argumentation around the policy; Walzer has built up a huge amount of social capital in the political philosophy world, he can’t take it with him and if he wants to spend it this way, fair enough.

What irks me though, is that throughout the piece, Walzer asks important questions in a manner which is meant to suggest that he is the first to raise them, when for the most part they are extremely cut and dried points of international humanitarian law. The entire piece is like an encyclopedia illustration for the concept “Seemingly Rhetorical Questions Which Invite Terse Literal Answers”.

One might almost think he doesn’t quite realise that momentous though it was, the publication of “Just and Unjust Wars” was not the most important thing in the subject area to happen in 1977; that was the year that the Protocols to the Geneva Convention were agreed. And the really striking thing is that the Protocols (particularly Protocol 1, Article 57) actually answer most of the questions Walzer asks, and do so for the most part in a much clearer, more intellectually rigorous and more morally acceptable way than anything he says himself, after thirty years’ reflection on a theory he largely invented.

For example, Walzer correctly states that the concept of “proportionality” in just war theory is all over the place and is much more often used as an excuse for unacceptable violence than as a proscription on it. Score one for the Geneva architecture, which doesn’t use such a fuzzy concept at all. Under Protocol 1, Article 57, a commander has three duties (explained very clearly in “Constraints on the Waging of War: An Introduction to International Humanitarian Law” by Frits Kalshoven and Liesbeth Zegveld):

1) to do everything feasible to verify that the chosen target is a military objective

2) to take all feasible precautions in the choices of means and methods to avoid, or in any event minimise harm to civilians and damage to civilian objects

3) to refrain from carrying out an attack if may be reasonably be expected to cause such harm or damage in a quantity which would be excessive relative to the concrete and definite military advantage anticipated.

So, under international law, for example, “minimising civilian casualties” is a basic primary requirement – it’s something you always have to do, not something you get extra brownie points for and certainly not something you can trade off against a slightly dodgy choice of target. Furthermore, “minimised” casualties could still be “excessive” relative to the concrete and definite military advantage anticipated. And international law’s clear on other topics that appear to vex Walzer too about the kind of objective that can be set against the civilian casualties; it has to be “concrete” (no messing around with intangibles like “avoiding the rocketing of New York”), “definite” (as in, with a clear chain of causation to the enemy’s ability to wage war) and “military” (no bombing objectives in order to gain political advantage).

International law’s also very clear on the subject of “negative reciprocity” – the question of whether one side’s failure to play fair releases the other side from its obligations. 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.

There’s obvious harm done in the real world by the fact that the doyen of just war theory is blowing squid ink around the relevant international humanitarian law – it makes it much easier for all sorts of people to use bad arguments to provide political cover for illegal actions – and I would be very interested in knowing whether he’s doing it on purpose or out of a lack of knowledge. “Just and Unjust Wars” isn’t searchable on Google Books, but it is on Amazon “Look Inside”, and as far as I can tell from that search function, it does cites the Geneva Convention precisely twice (once in the preface and once on a point about uniforms not related to noncombatants). The Protocols aren’t mentioned at all (or at least, the word “protocol” is mentioned only once, in relation to another treaty).

I find that really quite freakish. Surely Walzer must have been aware that the Protocols were being negotiated, while he was writing his book? Is academic political philosophy really that disconnected from the real world? It really isn’t that difficult to get oneself involved in a debate of this sort, if one’s got any sort of professional standing and surely a professor of ethics would be able to. What am I missing here?

Potentially quite a lot, but potentially not much. I’m certainly aware that people in the field do tend to get quite confused between international humanitarian law and “just war theory” (I will spare his blushes, but at least one contributor to the journal Democratiya has responded angrily to me suggesting that he was “trying to rewrite the Geneva Conventions” by citing Walzer!). I personally tend to agree with this reviewer that just war theory has been an amazing washout when one compares its actual results to its own rhetoric, but when Walzer sternly admonishes:

Asking the hard questions and worrying about the right answers—these are the moral obligations of commentators and critics, who are supposed to enlighten us about the moral obligations of soldiers. There hasn’t been much enlightenment these last days.

then he really needs to pull the stick out of his ass. The Geneva Conventions were for the most part drawn up by lawyers and soldiers, and it really is unseemly for Walzer to go about patting himself on the back (and high-fiving his mates over “the triumph of just war theory”, odds bodkins) for being the only person morally serious enough to think about these ever so difficult questions, while reinventing the wheel, badly.

{ 234 comments }

1

Sam 01.10.09 at 2:00 am

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?

2

Dave Maier 01.10.09 at 2:25 am

I didn’t see that joke the last time, so thank you, and “Even The Liberal New Republic” is also good.

Carry on.

3

atd 01.10.09 at 2:28 am

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

4

Number Three 01.10.09 at 2:30 am

Is academic political philosophy really that disconnected from the real world?

Yes.

5

Matt 01.10.09 at 2:53 am

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.

6

Ben A 01.10.09 at 3:20 am

This seems like the familiar exercise of attacking a writer for producing a different article than the one you wanted. It’s not like Waltzer is importing the concept of ‘proportionality’ into the discussion from nowhere. Practically every op-ed written on Gaza had the term ‘disproportionate’ in it, and it’s a core concept in Just War Theory. Given that, one can imagine why one would want to write an article titled “On Proportionality.” Indeed, all Waltzer’s discussion of and concerns about ‘proportionality’ could with minimal alteration apply to the 2nd and 3rd article 57 responsibilities as summarized. Indeed the 3rd responsibility cited above just seems like proportionality in another guise. Perhaps some advantage is gained by using the language of “excessive relative to the concrete and definite military advantage anticipated” as opposed to the allegedly fuzzy term “disproportionate.” But as Waltzer in that article all but defines disproportionate as “excessive relative to the gain anticipated” it’s hard to understand the improvement.

7

Russell Arben Fox 01.10.09 at 3:40 am

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.

8

MH 01.10.09 at 4:21 am

I’m a living example of what RAF is talking about. I certainly don’t attach moral weight to any international law. There’s no meaningful international polity of which I’m a member, with obligations to bind me and certain rights that are acknowledged. International law is created and ratified in organizations that are predominantly comprised of states who acknowledge painfully few rights for their own citizens (especially in 1977). Why should I worry any more about international law than I do about Cuban law when I’m not in Cuba?

9

Sebastian 01.10.09 at 5:35 am

“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.

10

Chris Bertram 01.10.09 at 8:34 am

Oh dear, Daniel has posted on this piece and got in before me. Not that I disagree especially, but there were some other things I wanted to say too. Specifically, that Walzer (for example in his response to a critic of Israel’s Lebanon war in Dissent in 06) claims to have been completely consistent in his views over the years. A close examination of J&UJW reveals that he is either less consistent than he thinks he is, or he is (to put it charitably) self-deceived about what it going on in Gaza (and in in the 2006 war). The key passages occur in ch.11 on guerilla warfare. I don’t have them in front of me today to quote directly, but there’s a contrast there (in the section on the American rules of engagement in Vietnam) between the actions of a solider in a guerrilla-occupied village who finds himself attacked by men in peasant clothing and (later in the chapter) forces that bombard or bomb from a distance inflict casualties in an indiscriminate way. In the first case, Walzer says the soldier is entitled to shoot at anyone who looks a bit like his attackers and that innocent casualties are the fault of the guerillas and their supporters. In the second, there’s a prohibition.

What Walzer does in more recent pieces is to assimilate nearly all Israeli action to the first case (the solidier in the firefight) but to agree that a few cases (Qana for example) are like the second, and therefore consistute Israeli misconduct. But I think it is reasonably clear that the vast majority of civilian casualties in Gaza are not the result of shooting by terrified soldiers under fire and unable to discriminate but, rather, the result of bombardment, airstrikes etc (coupled with “there were militants nearby so its their fault” claims from the IDF).

Reading the J&UJW passages today, it seems to me that Walzer was too permissive even then, but consistent he isn’t.

11

Steven Poole 01.10.09 at 9:50 am

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.

12

Lazynative 01.10.09 at 9:56 am

Hard to take Walzer too seriously given the acrobatics he indulges to claim that Israel has never fought an unjust war.

13

Tom Hurka 01.10.09 at 10:24 am

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.

14

Chris Bertram 01.10.09 at 10:46 am

Tom, I’d just reiterate what I say above, since Walzer makes very explict reference back to the Vietnam passages in recent writings (where he claims consistency with them). The claim that guerrillas are responsible for civilian deaths doesn’t (there) seem to apply in cases of bombardment from a distance. Isn’t it clear, also, that in cases of urban warfare the “human shields” argument is often made in manifestly bad faith as an _ex post facto_ excuse where conventional armies have killed large numbers of civilians? There’s a pretty moral big gap between shooting from behind a row of civilians (shield) and simply operating in an environment where there are a lot of civilians because you and they live together in the same place. Of course conventional armies would prefer it if guerrillas would simply stand close together, in an open field, wearing uniforms …..

15

Robert Waldmann 01.10.09 at 12:27 pm

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 ?

16

qb 01.10.09 at 12:29 pm

It isn’t hard to understand: as far as philosophy is concerned, an answer without an argument is no answer at all. Don’t get me wrong, I’m as much a fan of the Geneva protocols as anyone else, but they’ve got about as much “intellectual rigor” as the Ten Commandments.

Relevance. Political philosophers are more prone to self-loathing than other philosophers, but it isn’t because of the work they do–it’s the company they keep: activists and social scientists and legal scholars who believe political philosophers are all trying to do the same things they are, only worse.

17

Steven Poole 01.10.09 at 12:52 pm

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”!)

18

Rob 01.10.09 at 1:09 pm

To be fair, although IHL initially seems clear on these questions, in practice it has very little ability to constrain commanders. The first point is that in order to prove that most of these violations of IHL amount to war crimes intention on the part of the commander has to be proved – this is often nigh on impossible. Linked to this is that whilst the standards may be ‘clear’ in practice the law tends to give a high degree of deference to commanders (politicians etc.) as to what sort of losses are proportionate or not.

But there are more important points than this. Firstly, ‘military objective’ whilst seeming a robust term, really isn’t. This is because military objectives cover dual use targets (those which supply military and civilians) such as bridges, power etc. as well as targets which whilst normally civilian ones are in use by the enemy military. This tends to mean that rather a lot of targets are open to attack. Secondly, ‘proportionality’ is largely an empty test – as it is in most cases – because the balancing act required by a proportionality test requires two commensurable values that can be offset against one another. Unfortunately, there is no real sense in which ‘military advantage’ and ‘civilian deaths’ are commensurable and (even if military advantage were possible to quantify) there is no scale that says what civilian losses are acceptable for what military advantage. The only work that proportionality can do in practice is that commanders should – in all circumstances – choose the methods of attack that cause the least civilian casualties but bearing in mind the deference point I raised above, even this isn’t strong (also, ‘smart bombing’ is frequently argued to be the least destructive of civilian life and objects).

If we remain within this framework, then Israel’s overarching actions (although not necessarily some particularly incidents) can be subject to a robust legal defence. Hamas’ rocket attacks probably can be said (under the accumulation doctrine) to amount to an armed attack that merits military action. Once we admit this, then destroying those rockets (as well as where they are manufactured, stored etc.) and those who operate them becomes a military objective. Since proportionality is fairly useless Israel can argue that it has done its utmost to minimise civilian casualties, and anyway, no method of attack could cause less damage (although this will be more difficult to argue in some specific cases).

So probably the best we could hope for is that some particular actions are found to be illegal, but the wider assault can be comfortably argued for. As I have argued elsewhere international law is pretty rubbish at stopping the imperial war machine.

19

Daniel 01.10.09 at 2:33 pm

I posted that and then went to sleep, which is a rather good idea that I think I’m going to repeat:

Matt #5: 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)?

“Ending attacks” is definite, but it’s not concrete. Getting rid of abstractions like this (the big one being “prevent them from assisting the war effort”, a catch-all justification for area bombing) was one of the big purposes of the Protocols, after everyone was thoroughly disgusted with what happened in WW2.

Russell #7: 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.

MH, #8: There is too an international polity of which you are a member, and if you ever find yourself in a situation in which you are ordered to fire missiles at a UN school, I would very much advise that you say “no”, as the legal consequences to yourself for doing so could be serious.

Sebastian, #9: the question of the protection of civilian objects with AA guns is dealt with on p 111 of my edition of Constraints and it’s acknowledged to be difficult, but the principle that they suggest is that an AA gun protecting a civilian object must only be used for protecting that object; if the crew manning it were in the habit of firing at aircraft overflying them when their apartment building was not under attack, then they’re a military objective.

Tom, #13: I do, in fact, airily dismiss their views as wrong, basically because they had years to make their point, there was a big conference in Geneva, and their side lost, and it has been thirty years since. Lots of people had excellent arguments on liberal principles that the government shouldn’t practice affirmative action in employment, but I’m not interested in reopening that debate either. The Protocols give military powers an awful lot of leeway to kill civilians if they have a proper military objective; we really don’t need to add a few incentives there for them to decide that some of those nuns are not “really civilians” after all.

Robert #15: I’m more criticising him for not having got involved in the debate over the Protocols than for not mentioning them in his book (although as Steven mentions, he certainly could have mentioned the existence of the debate – he doesn’t even actually refer to the 1944 conventions either). And for seemingly (unless someone can gainsay this) not having mentioned them in 30 years of articles on the subject either, while substantially congratulating himself for “the triumph of just war theory”

20

Dave 01.10.09 at 4:44 pm

When American soldiers are tried in a non-US court for war crimes, then there will be meaningful international law on the subject. At the moment there are only pious hopes and [occasionally] self-enforced restraints.

21

Tom Hurka 01.10.09 at 5:31 pm

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.

22

dsquared 01.10.09 at 5:43 pm

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

Well, think what you like and if you can come up with a decent argument for it, write it down here. But your view on negative reciprocity has been given a fair chance and never really come up with the goods, so no, I’m not going to feel bound to give it airtime whenever I write on the subject. Lots of the anti-affirmative action crowd don’t feel restricted in their moral thinking by decisions of the Supreme Court made fifty years ago, but this is a fact which looms larger in their lives than in mine.

I don’t want to reach the point that has been reached on some issues, where lots of people believe all sorts of important arguments to be decidable by interpretation of the US constitution, but the international law deserves to be taken seriously; it’s very well reasoned, has been tested in tough cases and is all in all, a very good piece of work, much better than Michael Walzer’s writings on the same subject. To recognise that isn’t “smug moral certainty” – it’s common sense. Smug moral certainty is what you have when you smugly assert that you are certain that you have the moral right to “punish the enemy” for their crimes, no matter how many innocent people you kill in doing so. So basically my message here is “up yours”.

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.

A nuclear missile is a concrete (literally; the bunkers are made out of concrete), definite military target, the destruction of which is quite obviously a military advantage relative to which the destruction of a civilian neighbourhood would not be excessive. So it would not be prohibited under the Protocol. It’s pretty clear here which one of us isn’t bothering to think about things here.

23

christian h. 01.10.09 at 6:57 pm

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.

24

Katherine 01.10.09 at 7:32 pm

Anyone wanting to know the current state of international humanitarian law, and laws of war, could do no better that to take a look at the Rome Statute for the ICC. Oh I know, the US isn’t signed up, blah blah. But whatever else it does, the ICC statute is a very useful, and up to date, crib sheet of the law of the whole shebang.

25

Flippanter 01.10.09 at 8:12 pm

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.

26

Rob 01.10.09 at 9:54 pm

“I don’t want to reach the point that has been reached on some issues, where lots of people believe all sorts of important arguments to be decidable by interpretation of the US constitution, but the international law deserves to be taken seriously; it’s very well reasoned, has been tested in tough cases and is all in all, a very good piece of work, much better than Michael Walzer’s writings on the same subject.”

What comes before the semi-colon stands in direct tension with what comes after. Either, what matters is that relevant international law is the relevant international law, in which case whether it’s very well reasoned, gets the right answers in tough cases and so on, doesn’t matter, because it’s the relevant international law, or, what matters is that it’s very well reasoned, gets the right answers in tough cases and so on, in which case, whether it’s the relevant international law is entirely irrelevant. Anyway, until the content of concepts like ‘feasibility’, ‘avoidance’, ‘minimisation’, ‘reasonable expectation’, and most obviously, ‘excessive’ – which is surely a proportionality criterion by any other name – get settled once and for all, it’s not like disagreements about the morality of war are going to avoided in interpreting the relevant international law.

27

mpowell 01.10.09 at 10:45 pm

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.

28

Tom Hurka 01.10.09 at 10:52 pm

Re # 18:

If “up yours” isn’t the definition of smugness, I don’t know what is.

And the rest of your post mixes up two issues. One is about whether the military objective has to be concrete — where I disagree with you, but that’s another topic. The other is whether, given an appropriate target, collateral damage to civilians near it gets discounted if they were wrongly placed near it by the enemy. I was discussing only the second issue.

29

voyou 01.10.09 at 11:02 pm

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.

30

MH 01.10.09 at 11:11 pm

Daniel, I’m not in a position where anybody can order me to fire missiles and I no longer have my personal stock (when gas hit $4, something had to go). However, as an empirical matter, I think it is safe to say that you only get dinged for violating international law if you are a citizen of the third world and unarmed. The only exceptions would be if you really irked some state or well armed non-state actor while breaking international law. In this case, irking somebody stronger is both sufficient and necessary for whatever consequences you face. As for the U.N., attacking the U.N. is far safer than sheltering behind it unless you happen to piss-off NATO or something.

There is too an international polity of which you are a member, and if you ever find yourself in a situation in which you are ordered to fire missiles at a UN school, I would very much advise that you say “no”, as the legal consequences to yourself for doing so could be serious.

31

Daniel 01.11.09 at 12:04 am

The other is whether, given an appropriate target, collateral damage to civilians near it gets discounted if they were wrongly placed near it by the enemy. I was discussing only the second issue.

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. I pointed out that your specific example of something which might hypothetically be a ridiculous consequence of the protected status of civilians, wasn’t actually a consequence of the international humanitarian law as it stands – like Walzer, you seem determined to ignore the existing law and pretend that this is still an open question which nobody has the moral courage to address, but like Walzer, this comes at the price of looking a bit silly.

#25: Many people clearly have different views on the negative reciprocity issue and when you engage their arguments it is inappropriate to assume otherwise

What arguments? Show me an argument that isn’t based on a fundamental misunderstanding or ignorance of the Protocols and I’ll engage with it. Fair warning; that engagement is likely to consist of a straightforward assertion that it looks like someone looking for an excuse to kill innocent civilians as a punishment for the actions of their government and that’s monstrous, but that’s morality for you. Let’s bring the argument first; as far as I can see, the “just war” crowd seem to be heavily reliant on obvious and provable straw men like Tom’s one about nuclear weapons in #21.

32

Bruce Baugh 01.11.09 at 12:14 am

It occurs to me to wonder how often the attack on, or refraining from attacks on, possible military targets in the midst of civilians actually ever matters to the successful prosecution of a war. And I know I have no real idea where to begin gathering info about it, so I’m hoping someone else has more clues. How often do serious analysts ever have occasion to say things like “X’s assaults on the Yist installations embedded among schools and churches were crucial in the victory a few months later” and “X’s decision to let Y retain its enclaves in the Bogusville and Hypotheticalton neighborhoods contributed materially to its defeat the following winter”?

My strong suspicion, as I look at the argument back and forth, is that it’s going to turn out to be ticking-bomb-type BS. But I’m not qualified to say anything like I know that, right now. Anyone?

33

roger 01.11.09 at 1:13 am

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.

34

roy belmont 01.11.09 at 2:10 am

#26
“If “up yours” isn’t the definition of smugness, I don’t know what is.”

Now see I read that completely differently. From here it looked like righteous indignation shot through with moral outrage and disdain.
I mean given the immediate context, where it was preceded by serious contemplation of and debate about the killing of innocent people, that makes sense.
And given the larger context in which the debate’s taking place, where we’re all witnessing the killing of real innocent people. Including many children. Many.
And given the political and social power wielded by those doing that killing it has an actual tinge of the heroic, sort of.
Pretty much the opposite of smugness. Smugness is never the product of compassionate anger. Not ever.

35

Russell Arben Fox 01.11.09 at 4:58 am

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.

36

Matt 01.11.09 at 5:29 am

Matt #5: …“Ending attacks” is definite, but it’s not concrete.

That might or might not be true, but it doesn’t remotely address my question.

37

mpowell 01.11.09 at 10:13 am

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.

38

Chris Bertram 01.11.09 at 10:36 am

Tom:

_why should it matter whether the deaths will be caused at close range or by longer-range bombardment?_

Well one reason it matters is that in the case of long-range bombardment the attackers are both diminishing their own ability to discriminate between protected and non-protected persons at the same time as reducing their own exposure to risk to approximately zero. That transference of risk to protected persons seems to be a pervasive feature of Israeli (and American) military doctrine – and “their fault not ours” doesn’t seem to me like a morally compelling response.

christian_h:

I think your scepticism is understandable but unjustified. Insofar as soldiers receive training in what JWT requires, then some of them at least will respond by observing its precepts wrt to civilians, prisoners, reprisals etc.

Russell (and Tom, I think):

You are far too quick to be dismissive of law here. Whatever morality would ideally require, it is not moral philosophers who are doing the fighting. What we need in practice is a set of rules that all sides can recognise and implement as restraints on their conduct (with confidence that the other side ought to know, and know that they know etc.). A codified set of publicly known restrictions achieves this, whereas everyone giving themselves permission to rethink what’s permitted from first principles does not (and runs the risk of interest, self-deception etc distorting moral judgement in a fairly obvious and immediate way).

39

zdenekv 01.11.09 at 10:40 am

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.

40

Daniel 01.11.09 at 11:34 am

Would anyone else care to tell me what “Zdenek” just said? I have a firm policy of not responding to “Zdenek”, because of two previous occasions on which he/she tried to bullshit me particularly egregiously.

41

zdenekv 01.11.09 at 11:55 am

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

42

zdenekv 01.11.09 at 11:59 am

I ask because even your claim that Walzer mentions Geneva Convention “precisely twice” is false.

43

novakant 01.11.09 at 12:06 pm

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.

44

dsquared 01.11.09 at 12:39 pm

#38 to #39, #40.

45

what 01.11.09 at 12:47 pm

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

46

zdenekv 01.11.09 at 12:52 pm

novakant :
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.

Sure, I think we can all agree with that , but it is not clear how this answers or has relevance to Hurka’s point : he is looking at cases where the civilians’ proximity to the military target is something the enemy intentionally and wrongfully engineered . If this is right and it makes sense to say that the enemy’s wrongful action can diminish the weight of the civilians’ deaths in our proportionality calculation it is not clear why it should matter whether the deaths will be caused at close range or at longer range.

Suppose that I position myself wrongfully behind a screen of children in a school and this diminishes the wrongness of your killing them when you fire at me by say 50 % ( ignore that this is implausible ). The question is –if I understand Hurka–why should it make any difference to this calculation whether I fire from 10 kms or 1km ?

47

Marc Mulholland 01.11.09 at 12:54 pm

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.

48

dsquared 01.11.09 at 1:21 pm

Well Marc, I think that’s a somewhat strange argument. 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. (There is a law related to self-defence, and some case law relating to very odd cases involving hostage-takers, but these are analogous to the CDM advantage provisions already in the Geneva Protocols). The only reason I can see for wanting to massively weaken the protection of noncombatants due to actions taken by other people, is that someone’s peeked at the answers at the back of the book and realised that unless they invent this “somewhat weakened” concept (which is obviously massively open to abuse, which is why negative reciprocity isn’t allowed anywhere else in any other kind of law), they’re not going to get the result they like in cases involving Israel.

Seriously, where else in any legal code anywhere is it assumed that someone else’s breaking the law releases you wholly or partially from your own duty to obey it? Only in cases of self-defence when it is clear that your own safety requires you to do so, which is analogous to the kinds of harm to noncombatants which is allowed under the Protocols. Other than that, all I can think of is the argument occasionally advanced in libel cases of qualified privilege for responding to an attack, which isn’t usually successful.

The question about whether I’ve read Walzer’s book and how many times it mentions the Conventions (I count 2; there is another mention of a different Geneva Convention of 1929) is not one I’m getting into; nor am I going to get into a debate with Zdenek carried out through third parties, so if you disagree with me yourself Marc then let’s go for it, but otherwise that’s as much as he/she is getting.

49

Marc Mulholland 01.11.09 at 1:30 pm

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.

50

Marc 01.11.09 at 1:36 pm

In the case of Gaza the “military target” is frequently something like the leaders of the opposition and the “collateral civilian damage” is their family. Israel, like the United States, has lost it’s way in a thicket of increasingly totalitarian justifications for doing what they will.

51

dsquared 01.11.09 at 1:44 pm

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.

52

Sam C 01.11.09 at 2:26 pm

An aside: Walzer is in an odd position with respect to the interpreting international law vs doing moral and political philosophy question. He seems more concerned to do normative work on justice in war than to consider institutions and practices; but on his own account of philosophy, no one can do such work in abstraction from those institutions and practices. For the Walzer of Spheres of Justice, at least, all one can do as a political philosopher or social critic is ‘interpret to one’s fellow citizens the world of meanings that we share’. It seems to me that, on his own principles, Walzer ought to be much more interested than he is in, for instance, the Protocols to the Geneva Convention. They seem to be central to the shared meanings which govern our thought about war: why is he not interpreting them to his fellow citizens?

53

Rob 01.11.09 at 2:59 pm

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.

54

novakant 01.11.09 at 3:00 pm

If this is right and it makes sense to say that the enemy’s wrongful action can diminish the weight of the civilians’ deaths in our proportionality calculation it is not clear why it should matter whether the deaths will be caused at close range or at longer range.

Because such proportionality calculations are made in the comfortable rooms of universities and government offices and the killings are carried out by pushing a button from the safety of an airplane cockpit.

If the enemy’s wrongful actions are indeed diminishing the weight of the civilians’ deaths to such an extent and we value our military objectives and the safety of our soldiers so much higher than their lives, then that is equivalent to telling soldiers on foot to indiscriminately shoot civilians at close range if they just happen to be in the area of operations. We generally tend to allow the former (killing civilians from a distance), while we wouldn’t allow, decry and probably even prosecute the latter (killing civilians at close range), even though we end up with same amount of dead civilians. This strange disconnect is only possible, because have managed to insulate ourselves sufficiently from the bloody action on the ground through technological means and theoretical abstraction.

I don’t see why lawyers or philosophers are deemed especially competent to legitimate such killings from the safety of their civilian lives and think the natural instinct that would make us (unless we’re barbarians or psychopaths) shy away from taking such action if we were face to face with our potential victims might actually be a better starting point than abstract proportionality calculations.

55

zdenekv 01.11.09 at 3:02 pm

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 .

56

T. Gracchus 01.11.09 at 3:35 pm

I don’t think you can get to these various calculations as part of a moral assessment unless you first get to separate standards for state actors. There is a significant distance between standard rules for individual actors in First World locations and the sorts of rules discussed here. Put the issues in a domestic context, and you are talking about how many of your neighbor’s children you get to beat up to get them to stop teasing your dog. (It is a bit off the topic, but there really is no theory in J&UJW; it is inattentive reading to take a series of comments on stories as a theory.)

57

Matt 01.11.09 at 3:45 pm

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. )

58

zdenekv 01.11.09 at 4:13 pm

sophistry. performance art. name-call.distortions of arguments.serious-sounding invocations of books Daniel hasn’t read. indignation if he’s questioned…

This pegs it just about right.

59

Marc Mulholland 01.11.09 at 4:35 pm

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”.

60

jj 01.11.09 at 4:35 pm

Right. And your attempts to provide a sophisticated calculus for the justification of murder pegs you as a patriot.

61

zdenekv 01.11.09 at 5:17 pm

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.

62

Marc Mulholland 01.11.09 at 5:29 pm

And what is the nature of this protection? Military action must always seek to minimise civilian casualties. From Dsquared’s post above:

“under international la … “minimising civilian casualties” is a basic primary requirement – it’s something you always have to do, not something you get extra brownie points for and certainly not something you can trade off against a slightly dodgy choice of target.”

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.

63

zdenekv 01.11.09 at 5:43 pm

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.

64

Tom Hurka 01.11.09 at 6:55 pm

Re # 36

Chris: I agree that long-range bombardment increases the difficulty of avoiding civilian casualties, which makes it more likely to be wrong. 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. I thought we were discussing just that second question.

65

dsquared 01.11.09 at 8:16 pm

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.

66

Chris Bertram 01.11.09 at 9:30 pm

#63 Precisely. Bombarders-at-a-distance can’t plausibly exercise their duty to discriminate between protected and non-protected persons. Those who fight at closer quarters can (though at greater risk to themselves). Walzer was reasonably clear about this in his book, but it seems that Tom thinks he was wrong about that.

It seems to me that Tom and his supporters here are overimpressed by the idea that the laws of war provide a level playing field and are only binding on protagonists so long as the other side also observes. But that’s clearly wrong with respect to many prohibitions (hostage taking, reprisals, massacre, shooting POWs).

Generally, if we allow the idea that obligations towards protected persons are weakened by the other side’s failure to comply, we encourage a race to the bottom where one side’s alleged violations are used as a pretext for the other side to exempt themselves from restrictions. The outcome for civilians is all too predictable.

67

Chris Bertram 01.11.09 at 9:32 pm

Matt (#55) – cut it out.

68

geo 01.11.09 at 11:20 pm

Is it relevant to the discussion that there is a nonviolent approach to stopping the rocket attacks that the Israelis haven’t seriously tried, are morally and legally obliged to do quite independently of stopping the rockets, and of which Walzer manages to avoid all mention ? I mean the obvious one: desisting from strangling Gaza and stealing the West Bank? Or is that a matter of jus ad bellum, and as such out of place here?

69

qb 01.11.09 at 11:25 pm

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.

70

Matt 01.12.09 at 12:08 am

Chis, surely anyone who responds to an argument with “up yours” can take what I’ve put! It wasn’t that nice, maybe, but I do think that Daniel tends to make his posts like op-ed pieces or, perhaps, legal briefs. That is, there’s a position already decided on and the goal of the writing is to defend that come what may. There’s a place for that, of course, (the op-ed page and the court room, though not just those, of course) but they are styles of writing quite unlike a philosophical argument. In this way interacting w/ Daniel is somewhat like the situation Josh Cohen had w/ Glen Greenwald a while back, where Greenwald accused Cohen of making excuses for torture. It was crazy, of course, but came about because Cohen and Greenwald are just in different fields- Greenwald is always acting out a legal brief. Once I realized that Daniel’s pieces are the same sort of thing- not a philosophical argument or an attempt to figure anything out, but a brief for a side, to be defended come what may, they became easier to understand and even to enjoy. They can’t be interacted with, though, in a way that a philosopher is likely to find useful, and more than you can interact with a op-ed piece or a lawyer writing a legal brief.

71

john c. halasz 01.12.09 at 12:25 am

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.

72

dsquared 01.12.09 at 12:39 am

Matt, I leave it to others to decide what kind of a discussion they’re going to have with me. If they make sensible and well-mannered points, they find me the soul of good nature. If they charge in and accuse me of “smug moral certainty”, then they’re going to get a dig back.

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?

73

john c. halasz 01.12.09 at 1:23 am

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.

74

Detroit Dan 01.12.09 at 1:27 am

To me, and billions of others I would guess, the Gaza conflict is a case of David v Goliath. Goliath is dumb and doesn’t care what I think…

75

Cryptic ned 01.12.09 at 1:36 am

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.

76

Martin James 01.12.09 at 5:48 am

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.

77

Martin James 01.12.09 at 5:49 am

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.

78

Cynical Again 01.12.09 at 5:50 am

If they charge in and accuse me of “smug moral certainty”, then they’re going to get a dig back.

Wow. That makes you really tough. Tough, and smug.

79

dsquared 01.12.09 at 6:27 am

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.

80

Chris Bertram 01.12.09 at 8:00 am

I would not have said anything about Matt, whose comments I often appreciate, were it not for some other, recent, dsquared-directed accusations on one of my threads. I have to say that Matt’s distinction between the op-ed style (defend your line come what may) and the philosopher’s style (interact charitably, be willing to change your mind ..) may pick out ideal styles of argument but it doesn’t reliably track the actual behaviour either of philosophers or non-philosophers. Daniel doesn’t need my endorsement, but I’ve always found him willing to give ground where he can see that the other person has a point.

81

Jason McCullough 01.12.09 at 8:19 am

#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.

82

zdenekv 01.12.09 at 9:03 am

john c halasz # 71 ; Perhaps a boycott of Israel, in the manner of the former Union of South Africa, would be in order…

Kauft nicht bei Juden eh john ?

83

Chris Bertram 01.12.09 at 9:20 am

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.”

84

zdenekv 01.12.09 at 9:35 am

Sorry Chris but apart from the obvious point you are making , are you agreeing with Daniel that Walzer’s position on war must be false –or is probably false — because he supports Israel ?

85

Phil 01.12.09 at 9:35 am

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.

86

Chris Bertram 01.12.09 at 9:47 am

Phil: I think Rob at #18 and #53 is a different Rob from Rob at #26.

87

zdenekv 01.12.09 at 9:54 am

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.

88

Hidari 01.12.09 at 10:16 am

‘john c halasz # 71 ; Perhaps a boycott of Israel, in the manner of the former Union of South Africa, would be in order…

Kauft nicht bei Juden eh john ?’

I know this is not my blog but I would just like to register that I find this comment profoundly offensive. I am really getting tired of the ‘If you criticise the foreign policy of Olmert you, personally, are responsible for the Holocaust’ argument, if one might glorify this smear by calling it an ‘argument’.

89

zdenekv 01.12.09 at 10:25 am

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.

90

Hidari 01.12.09 at 10:45 am

This is exactly the sort of crap I am talking about. Personally I can’t stand George Galloway, but he did NOT call for a ‘shutting down of Jewish shops’. According to the not particularly reliable source of the Guardian, he made a speech in which he called for a boycott of ISRAELI shops (or to be more specific, shops which sell Israeli goods), a rather different thing.

And before you plead ignorance, it is a well known trope of Israeli government funded propaganda to accuse anyone who criticises Israeli foreign policy (especially that specific variety of foreign policy associated with the Likud party) as being ‘anti-semitic’. This kind of smear shuts down intelligent conversation, and prevents serious discussion of these issues. I feel no need to engage in further debate with anyone who uses these cheap tricks.

91

dsquared 01.12.09 at 10:53 am

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.

92

Phil 01.12.09 at 10:56 am

Chris – I’m always getting them mixed up.

I’ll lend a hand by replying to Rob @ #26. I think all law-governed behaviour is largely governed on a consensual, or (if it makes a difference) a customary basis. The law does not deter: I agree to obey the law because it’s the law, not because I’ve calculated the probability of bad things resulting for me personally if I don’t. What’s unusual – and particularly interesting – about international law is that it’s almost entirely consensual: states agree to be governed by it. And in practice most states, most of the time, do agree to be governed by it.

What’s this got to do with your semi-colon? The point is that adherence to international law is always a choice: a state always has the option of acting as if such and such a treaty or convention doesn’t apply to it, and in some cases this approach may get them quite a long way before they run out of road. Hence “it’s the law and it’s a good law”. Good ideas are always worth discussing, but they don’t have a privileged claim on our observance – which the law does. Conversely, a bad law that’s generally recognised as such will be widely disregarded and won’t effectively remain law unless it can be effectively enforced (if then).

93

Barry 01.12.09 at 2:55 pm

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.

94

Andrew 01.12.09 at 3:05 pm

#82: Mike Godwin, thou shouldst be living in this hour…

Phil’s point at 92 aligns with some of the International Law classes I remember from 20 years ago: statesmen don’t make calculations about whether to violate international law because they’re worried that the International Policeman will arrest them, but the characteristic of the law as law is still valid, and failure to obey the law can have monetary consequences, or loss of reputation, or sometimes (as Chris Bertram writes at #66) they would prefer other actors not to engage in a “race to the bottom.”

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.

95

Chris Williams 01.12.09 at 3:36 pm

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

Otherwise, carry on.

96

dsquared 01.12.09 at 3:57 pm

Oh come on, the University MPs were just a harmless little quirk, a bit like Alaska having senators.

97

zdenekv 01.12.09 at 4:15 pm

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 ).

98

zdenekv 01.12.09 at 4:19 pm

# 97 is meant for Andrew @94

99

Rob 01.12.09 at 4:21 pm

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.

100

zdenekv 01.12.09 at 4:26 pm

Andrew at # 94 –Walzer says among other things that “the occasions have to be extreme if they are to justify, perhaps even require, the use of force across an international boundary…. The common brutalities of authoritarian politics, the daily oppressiveness of traditional social practices–these are not occasions for intervention; they have to be dealt with locally, by the people who know the politics, who enact the practices. The fact that these people can’t easily or quickly reduce the incidence of brutality and oppression isn’t a sufficient reason for foreigners to invade their country.”

101

dsquared 01.12.09 at 4:36 pm

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.

102

Phil 01.12.09 at 4:46 pm

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.

Not at all. 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. (Again, I think how people actually live tends to weigh on my side of the argument – I don’t believe that people weigh up the morality of legal & illegal activities before choosing, most of the time, to engage in the former rather than the latter, any more than that they calculate the likelihood of criminal punishment.) This is actually why bad laws are so important – they shape the social world in a way that bad moral arguments don’t.

*There’s a deep homology between law and liberalism, but that’s another discussion.

103

Rob K 01.12.09 at 5:24 pm

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

104

dsquared 01.12.09 at 5:45 pm

This means that any number of vital civilian services are prima facie legitimate targets

But this is very much mitigated by other Articles on the subject of “civilian objects”, isn’t it?

105

Rob K 01.12.09 at 6:02 pm

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.

106

Sebastian 01.12.09 at 6:06 pm

“Sebastian, #9: the question of the protection of civilian objects with AA guns is dealt with on p 111 of my edition of Constraints and it’s acknowledged to be difficult, but the principle that they suggest is that an AA gun protecting a civilian object must only be used for protecting that object; if the crew manning it were in the habit of firing at aircraft overflying them when their apartment building was not under attack, then they’re a military objective.”

This ‘difficult’ case is precisely the problem at question though. Hamas mixes civilian and military all the time. They use ambulances to ferry combatants and munitions. They put ammo depots at schools. They fire at planes from on top of apartment buildings. You would be much harder pressed to find examples of Hamas using strictly or even largely segregated military apparatus than you would be to find the numerous examples of them putting military apparatus right on top of civilian structures.

This difficult case is largely the problem of Gaza and Israel. So you don’t really get to dismiss it as a difficult case and blithely move on if you want to talk about Gaza. Why does Israel keep ambulances away for a day or so? Is it just to be mean? Is it because Israelis hate vans with sirens? No, it is because their enemies use ambulances to ambush them and they use ambulances to ferry weapons around. You know that. And once you know that, we are at the ‘difficult’ case again.

Invoking proportionality, Israel can’t bomb all the ambulances in Gaza. But they absolutely can keep ambulances out of the fighting area until they can be sure that they aren’t being used to ferry combatants and munitionsor that such illegal useage won’t matter to the battle effort.

But what caused a huge media uproar? Short term restrictions on ambulances in the area.

107

Phil 01.12.09 at 7:01 pm

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).

108

geo 01.12.09 at 7:25 pm

Sebastian @ 106 (et hoc genus omnes):

Isn’t it really a bit thick to prescind from the context altogether? Israel is a regional superpower, armed and trained up the wazoo by the global superpower. It has not only caused the whole conflict by defying UN resolutions requiring return of refugees after the 1948 war and land after the 1967 war, but has in fact stolen the bulk of the (illegally) occupied land, brutally crushed all resistance, both violent and nonviolent, to its occupation, and wasted on armaments and colonization many times the amount that would have created an idyllically prosperous Israel-Palestine between the Jordan and the Mediterranean. Why, exactly, are we required to excise all this from our deliberations about proportionality and focus, laser-like, on whether X tactics by Hamas justify Y tactics by Israel?

109

geo 01.12.09 at 7:28 pm

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

110

Sebastian 01.12.09 at 7:48 pm

“Why, exactly, are we required to excise all this from our deliberations about proportionality and focus, laser-like, on whether X tactics by Hamas justify Y tactics by Israel?”

Because the laws of war are designed around the fact that if you are willing to go to war on each other, you have very strong differences about what you believe the underlying justice issues are. It recognizes that for the most part both sides tend to believe that they have justice on their side. So if you are talking about proportionality as a general concept, I suppose you can bring in anything you like. But if you are talking about it in the context of war crimes or the Geneva Conventions, the fact that Hamas uses ambulances for illegal transport of combatants and munitions bears on the fact that Israel is then permitted to restrict the access of ambulances. 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).

111

geo 01.12.09 at 8:15 pm

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.

112

Tom Hurka 01.12.09 at 8:15 pm

Chris at #66:

In the morality of war ‘discrimination’ refers to the prohibition against *aiming at* noncombatants, which bombers can do just as well from a distance as soldiers can at close range. Our entire discussion has been about the proportionality restriction on *collateral* civilian deaths, i.e. deaths that are not aimed at or intended but merely foreseen, and whose causation therefore does not violate discrimination. (If it did, proportionality wouldn’t apply because the act would already be wrong.) In the relevant clause of Additional Protocol I, which 3) in Daniel’s original post sloppily restates, the prohibition on disproportionate harm concerns only ‘*incidental* loss of civilian life …,’ i.e. civilian deaths that are *not* intended. So while it’s true that the use of force from a distance will usually cause more collateral civilian deaths — as I acknowledged — it doesn’t pose special difficulties for discrimination.

Btw, thanks to those above, e.g. Rob K at #103, 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.’ Talk about not knowing your international law.

Also, Chris, the rest of your #66 misunderstands what I’ve been suggesting, perhaps understandably given all the talk of ‘negative reciprocity.’ The idea is *not* that any time an enemy violates a rule of war I’m permitted to violate that rule; I would vigorously resist that in all the cases you list, e.g. treatment of prisoners, use of chemical weapons, etc. What I was suggesting was a much more restricted idea: that when my act’s collaterally causing a certain harm also depends on a wrongful act by the enemy, so without that wrongful act the harm wouldn’t result, the weight of that harm in my proportionality calculation is reduced. This is related to 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.

Daniel suggests that the idea I was trying to make a case for appears nowhere in the law, but intervening wrongful agency appears, or so I’m told, in lots of places. And the legal academics with whom I’ve discussed the application of this idea to questions of proportionality in war have agreed that the issue is very difficult, with credible legal principles supporting either side. But hey, what do they know about the law compared to Daniel? He’s obviously the world expert.

113

novakant 01.12.09 at 9:03 pm

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?).

114

Sebastian 01.12.09 at 9:04 pm

“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.”

Regarding the first setence I agree. I’m not sure what you are saying in the second. What act of provacation causes one to use an ambulance to move combatants or munitions? The laws of war aren’t about making weak parties magically able to prevail over strong ones. They aren’t even about making it possible for weak parties to continue war indefinitely against strong parties–in fact quite the opposite I suspect that the Geneva Conventions are intended to get war over with so that civilians don’t have to live under it for multiple generations.

You last sentence isn’t true for most values of ‘even minimal justice’. Without continually making war, Palestinians would almost certainly already have a state. They were well on their way in the late 1980s and 1990s.

115

Hidari 01.12.09 at 9:07 pm

‘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.

116

Sebastian 01.12.09 at 9:13 pm

“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.”

This is confusing. It’s certainly not allowed according to the Geneva Conventions means that someone is already making a mockery of international law, right? And precisely what kind of justification is “such tactics have always been and will always be used”? Is that merely explanatory or do you believe it has some useful moral reasoning behind it that aids the conversation?

Living in war situations is bad for civilians. Is it wise to construe the laws of war to make it probable that the war will continue across many generations rather than construe them such that they will be short, nasty and then get on with life? I’m not sure. I can’t run an experiment but you should at least admit that it isn’t obvious that having a three-generation war against Israel would have been preferable for Palestinian citizens compared to just losing decisively.

117

Sebastian 01.12.09 at 9:15 pm

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…

118

Phil 01.12.09 at 9:19 pm

e.g. killing certain military leaders, destroying certain training facilities etc.

There’s zero case-law supporting selective assassination as a war-fighting tactic. Israel is already way out on a limb legally with regard to this one. (And yes, way out on a limb with no apparent consequences to date, but I don’t think that can be a clincher.)

Other Phil: research says, severity of punishment no, likelihood of detection yes, sort of, a bit. But it’s a marginal issue – the question that criminologists tend not to ask is why most of us obey most of the laws most of the time.

119

geo 01.12.09 at 9:21 pm

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.

120

Chris Bertram 01.12.09 at 9:22 pm

Tom #112

bq. In the morality of war ‘discrimination’ refers to the prohibition against aiming at noncombatants, which bombers can do just as well from a distance as soldiers can at close range. Our entire discussion has been about the proportionality restriction on collateral civilian deaths, i.e. deaths that are not aimed at or intended but merely foreseen, and whose causation therefore does not violate discrimination.

I’m pretty shocked at you writing that. I don’t know what entitles you to your degree of confidence about what counts as _the morality of war_ , but it is clear to me that there is a requirement both to aim only at combatants and to be careful about the minimization of harm to protected persons. If you put yourself in a position where you are not able to make judgements about the likely consequences, or where the likely consequences are harms way out of proportion to your military objectives then you do wrong. Since Anscombe came up in an earlier discussion, let me quote from Mr Truman’s degree again:

bq. For killing the innocent, even if you know as a matter of statistical certainty that the things you do involve it, is not necessarily murder. I mean that if you attack a lot of military targets, such as munitions factories and naval dockyards, as carefully as you can, you will be certain to kill a number of innocent people; but that is not murder. On the other hand, unscrupulousness in considering the possibilities turns it into murder. … It may be impossible to take the thing (or people) you want to destroy as your target; it may be possible to attack it only by taking as the object of your attack what includes large numbers of innocent people. Then you cannot very well say they died by accident. Here, your action is murder.

AFAICS, you think the discrimination requirement is met if we detonate a tactical nuclear weapon with a military objective in mind, notwithstanding the fact that there is no way of using such a weapon in a way that exercises judgement about harms in a responsible way.

121

Steven Poole 01.12.09 at 9:36 pm

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.

122

Chris Bertram 01.12.09 at 10:00 pm

Tom, another way of putting the point would be this. The claim is often made against Hamas that it violates the requirement on discrimination because its rockets can’t be aimed with any accuracy. Now it would rather bizarre, wouldn’t it, if its rockets could be morally improved simply by increasing their explosive power in such a way as to make harm to a bona fide military target likely. Same rockets, bigger bang – gets you off the lack of discrimination charge.

123

Sebastian 01.12.09 at 10:15 pm

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.

124

MarkUp 01.12.09 at 11:01 pm

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?

The solution here is simple, Israel needs to give over a bunch or territory in which Hamas can freely operate without risk to civilians. They should be located so that the range of their missiles is not a limiting factor.

125

Tom Hurka 01.12.09 at 11:05 pm

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.

126

Tom Hurka 01.12.09 at 11:10 pm

Steven at #121:

Your point is precisely why I said the idea is only ‘related to’ the novus actus doctrine. The question would then be why it should matter so much whether the other’s wrongful act comes after one’s own or before it. You can know, before the other’s act is performed, that it will be. Why is that so different from the case where the act was performed before and you know that? (That’s not a rhetorical question. I ask it because, as I’ve been saying, I find this issue complex and difficult.)

127

Hidari 01.12.09 at 11:42 pm

‘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.

128

Hidari 01.12.09 at 11:48 pm

Incidentally one point that is very rarely mentioned (Juan Cole discussed it in a column a few weeks ago) is that Hamas’ targetting of Israeli civilians is reprehensible,immoral,illegal and what have you,but it is not (as is usually assumed) therefore irrational or simply sadistic. A key Hamas objective is to reduce immigration to Israel, reasoning that immigration strengthens (either obliquely or directly) the settler movement. Spreading terror throughout the civilian population is a means towards reducing Israel’s popularity as a place for immigrants. Which is unpleasant reasoning but is not necessarily evidence that the aim of the rockets is necessarily anti-semitic or genocidal. As the one state solution becomes increasingly discussed, ‘demographic’ tactics like this are likely to become increasingly popular.

129

Rob 01.12.09 at 11:55 pm

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.

130

Rob K 01.13.09 at 12:09 am

Phil, I don’t want to get sidetracked on this, but I think it’s important to at least think about the issue of targeted killing. The fact that there has been little caselaw on the matter is immaterial (although there was a case before the Israeli Supreme Court that upheld it), a lot of the issues we are discussing here have very little caselaw on them, such is the nature of the law of war. In the absence of this we look to the relevant texts, the practice of states and statements of states as to the legality of certain acts.

Bearing this in mind I think we can proceed. Firstly, obviously, targeted assassination is not ok outside the context of an armed conflict. This becomes really messy as regards this Israel-Palestine in general, but it is simpler in the Gaza conflict, as there is clearly an armed conflict. Secondly, international law lets you kill combatants and people taking part in the hostilities. At the very least there is an arguable case that some of the Hamas leadership fall under this category. Thirdly, there’s nothing anywhere that suggests you can’t target specific individuals. So the only considerations are the usual ones of proportionality etc. – again there’s a perfectly arguable case that targeted killings are an effective way of achieving military objectives without killing too many civilians.

I think the point is – as with much international law – there is no need to make an absolutely definitive ‘legal or illegal’ declaration. The point is whether or not conduct can be justified by invoking legal argument.

131

Sebastian 01.13.09 at 12:17 am

“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.

132

Steven Poole 01.13.09 at 12:31 am

Your point is precisely why I said the idea is only ‘related to’ the novus actus doctrine. The question would then be why it should matter so much whether the other’s wrongful act comes after one’s own or before it. You can know, before the other’s act is performed, that it will be. Why is that so different from the case where the act was performed before and you know that? (That’s not a rhetorical question. I ask it because, as I’ve been saying, I find this issue complex and difficult.)

Yeah, except if you do know the other’s act will be performed then that militates strongly against any finding of the act being a novus actus interveniens.

133

novakant 01.13.09 at 12:45 am

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.

134

LFC 01.13.09 at 3:18 am

Toward the end of Daniel’s post, he alludes to the difference between international humanitarian law and just war theory, so he understands that they are somewhat different subjects or projects (or whatever word you want). However, it’s worth noting that Walzer framed his approach in Just and Unjust Wars in conscious opposition to (or at least distinction from) the tradition of “positivist lawyers… [who] have constructed a paper world, which fails at crucial points to correspond to the world the rest of us still live in.” (Preface, pp.xii-xiii) Walzer wrote that he wanted “to recapture the just war for political and moral theory” (p.xiv) — recapture it, by implication, from those positivist international lawyers.

Whether Walzer was wise to proceed in this way, whether his characterization of international lawyers was fair, and whether his book would have been better had it engaged with international law more directly and at more length, are all debatable. But to anyone with a passing familiarity with Walzer’s work, it is not too surprising that his New Republic piece doesn’t give (taking Daniel’s word for it here) due credit to the Geneva Protocols or international humanitarian law more generally.

If these points have been made previously in this very long comments thread, then I apologize for the repetition.

135

Andrew 01.13.09 at 5:47 am

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.

136

zdenekv 01.13.09 at 7:15 am

“…but it is not (as is usually assumed) therefore irrational or simply sadistic …A key Hamas objective is to reduce immigration to Israel, reasoning that immigration strengthens (either obliquely or directly) the settler movement. Spreading terror throughout the civilian population is a means towards reducing Israel’s popularity as a place for immigrants. Which is unpleasant reasoning but is not necessarily evidence that the aim of the rockets is necessarily anti-semitic or genocidal.”

This view is a mess. First you say that Hamas are not necessarily irrational or sadistic when they murder civilians but instead of arguing for this you argue for something different viz. that Hamas are not anti semites. Its like claiming that Bush is stupid but when you are asked to show that your claim is true, you make an argument that shows that he is fat. I know there is a view there somewhere but even the tip of it that is visible is not very pretty.

137

dsquared 01.13.09 at 7:44 am

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.

138

Hidari 01.13.09 at 7:46 am

‘At least you aren’t such a heavy handed apologist as to completely abandon reality.’

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?

139

roy belmont 01.13.09 at 7:51 am

#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.

140

zdenekv 01.13.09 at 8:12 am

Daniel at 137:

Perhaps you’d care to be a little less bloody patronising, would you laddie?

This is absurd. Tom is a very good and well known philosopher who is an expert on this area ( see his highly regarded “Proportionality in the Morality of War ” in Philosophy &Public Affairs , 2005 ) and you should show some respect. Especially since you practically don’t know what you are talking about. You should be patronized.

141

daelm 01.13.09 at 8:21 am

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.

142

zdenekv 01.13.09 at 8:36 am

roy belmont :
“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.”

But I do make an argument. Its nothing special but I offer one: I show that Hidari’s argument is a non sequitur because the conclusion he wants to draw is not connected to his premises. What more do you want ? Actually forget it, I don’t really want to know.

“It’s repellent to read, and I can only imagine what it must be like to confront it personally”.

Is this also coming from and outraged heart like Hidari ?

Hidari’s arguments are plainly made from an outraged heart.
I doubt . It sounds like confused mind to me.

143

Chris Bertram 01.13.09 at 9:13 am

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.

144

Hidari 01.13.09 at 9:40 am

‘First you say that Hamas are not necessarily irrational or sadistic when they murder civilians but instead of arguing for this you argue for something different viz. that Hamas are not anti semites. ‘

On the basis of this farrago of gibberish I am hereby following Daniel’s lead and refusing to read any more of Zdenek’s comments.

145

zdenekv 01.13.09 at 9:41 am

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.

146

dsquared 01.13.09 at 10:15 am

Reading that paper (thanks for sending it to me) does make it clear though that “proportionality” in the philosopher’s sense is absolutely not synonymous with the use of the term as a shorthand for Article 57, precisely because of the 57 1) restrictions on concrete, definite and military. Tom specifically suggests that deterrence can enter into a proportionality calculation; an attack which killed civilians but had no military target other than the deterrence of another attack would certainly be a war crime.

147

Kevin Donoghue 01.13.09 at 10:32 am

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

148

zdenekv 01.13.09 at 10:40 am

re Tom Hurka’s argument : I have a quibble really rather than a criticism . On p.66 of his Proportionality paper he concludes that ” a conventional war fought to defend a nation’s sovereignty against aggression is normally proportional”. But earlier –p 57–he says something weaker, something more tentative viz. “that he has vindicated the common sense view that at least sometimes , and certainly when a large , popular democracy faces total political absorption , national self-defence can justify lethal military force “. The conclusion on p 66 seems to overstate what aggression demands/permits.

149

dsquared 01.13.09 at 10:56 am

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.

150

sanbikinoraion 01.13.09 at 12:15 pm

Can I just register my complaint that DD has failed in his duty to add an excessive (or disproportionate, I’m not fussy) quantity of footnotes to the OP?

151

Rob 01.13.09 at 1:29 pm

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.

152

john c. halasz 01.13.09 at 2:16 pm

Well, perhaps all this thread has accomplished, the punctilio of professional expertise aside, is to indicate that lawyers do not run wars, and perhaps why that might be inevitably the case, whatever the arguments that would “justify” military actions, (which are actually always more political than legal in nature). In order for there to be effective law, there must be a field of social action that is sufficiently stable to admit of the recurrent identification of specific actions in a quasi-systematic way, so as to regulate them and their ensuing conflict-potentials with respect to their permissibility and sanctionability. And law is at best a third-order mode of social action, after the “spontaneity” of social actions, and the informal level of regulating their conflicts through social sanctions and agreements. And law is always dependent on the coercive power of some source of sovereign violence, which at once promulgates and imposes the law. “International law” can only be based upon an agreement between such sovereigns, and its “existence” will always depend on the expedience of their combined “interests”. Whereas war, of course, whether its actions are undertaken by sovereign actors or not, is always the break-down of the foregoing conditions.

At any rate, whatever else might be said in this case about Hamas and their unsavory disregard for “innocent” civilian life, and the few hundred civilian deaths they or their confederates have wantonly initiated,- (ah, yes, proportionality),- they are in fact an “government” elected by a plurality in elections that were accepted as reasonably “clean”, conducted at the behest of the interminable peace process. And the severe assymmetry of power-relations involved here should condition political judgments about the motives and aims of the parties-to-the-conflict here. Yes, Israel will win this one, dismally.

And Zdenekv #82, since I failed to respond in timely fashion: ah, yes, you are entirely right! But then I’m a nigger-lover, too.

153

dsquared 01.13.09 at 2:22 pm

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.

154

Phil 01.13.09 at 3:25 pm

obviously, targeted assassination is not ok outside the context of an armed conflict. This becomes really messy as regards this Israel-Palestine in general

More precisely, it becomes state terror, in most cases against an illegally subjugated population.

but it is simpler in the Gaza conflict, as there is clearly an armed conflict.

At the risk of sounding like a visitor from another planet, is there, clearly? Consider Operation Motorman. Nearly 200 people were killed in Northern Ireland in 1971, and nearly 300 in the first seven months of 1972. The British Army’s response was to bring overwhelming force to bear on the task of dismantling the barricades and putting an end to the ‘no-go areas’ out of which the bombers & snipers were operating (a.k.a. Free Derry). Casualty figures declined steadily after 1972 – not without a couple of further peaks, but no full year after that had as many killed as the first half of 1972. Death toll of Operation Motorman itself: 2.

In Gaza as in Lebanon a couple of years ago, a lot of commentary (not only from the most pro-Israeli sources) has started from the position that they had to do something; Norm’s position two years ago, from memory, was “No nation could ignore this, and no other nation would be asked to.” But if Hamas’s rocketry gave Israel a casus belli, the IRA sure as hell gave the UK one. Motorman demonstrates that there’s more than one way to skin a cat, even using tanks.

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 – and that it’s rather more demanding than 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.)

I think the point is – as with much international law – there is no need to make an absolutely definitive ‘legal or illegal’ declaration. The point is whether or not conduct can be justified by invoking legal argument.

Don’t go indeterminate on us! Any conduct can be justified by invoking legal argument – you can prove that from Wittgenstein. 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. Anything I (or anyone else) come up with will be a provisional judgment based on partial knowledge and conditioned by dominant ideologies, but that’s not to say it’s invalid. Stepping to one side and saying “it’s all a bunch of legal discourse” doesn’t tell us anything we didn’t know already.

155

Stuart 01.13.09 at 3:37 pm

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)

156

dsquared 01.13.09 at 3:47 pm

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?

I tend to think that convoluted strategic arguments like this one are well-covered by the “Davies-Folk Theorem”.

157

Chris Bertram 01.13.09 at 3:48 pm

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:

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

158

dsquared 01.13.09 at 4:16 pm

By the way, I probably should have objected earlier to some of the more bizarre bollocks being spouted about the practice of having military targets in urban areas. The Regents’ Park Barracks are about half a kilometre from my house. The Honourable Artillery Company is based a similar distance from my former place of work. The Parachute Regiment has a big barracks right next to a residential area on the outskirts of Colchester and I am pretty sure that Israel also locates its barracks in reasonably convenient areas rather than way out in the desert.

159

Sebastian 01.13.09 at 4:56 pm

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.

160

dsquared 01.13.09 at 5:06 pm

What point are you trying to make, Sebastian? I really don’t understand what difference this makes. I explicitly pointed out that spotters can be used; but in many cases of interest (altitude bombing, the US in Vietnam, Israel in Gaza) they aren’t, and this does leave the bombardier open to charges of making an indiscriminate attack.

161

Rob 01.13.09 at 5:34 pm

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.

162

dsquared 01.13.09 at 5:45 pm

I think we’re agreed. To refine my point on the “troubling issue” dodge, one can sort of see an argument there, but nobody wants to actually make it, just to point to it. There’s a perfectly adequate argument which goes

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.

but nobody [1] wants to actually make (2) in a way which endorses (3) in so many words. So they just try to kindasorta point to (2), say “Of course I do not endorse (3), I just find this troubling”, etc, and generally do their utmost to create the impression that there’s a lot of doubt about (3), without ever coming out and endorsing it themselves. It’s a modus operandi not all that different from global warming and cigarettes/lung cancer sceptics.

[1] Except Professor Geoffrey Alderman, who does in fact believe that anyone who voted for Hamas is a legitimate target and can be killed with impunity.

163

Sebastian 01.13.09 at 6:05 pm

“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.

164

geo 01.13.09 at 6:52 pm

The problem … is that you incentivize the putting of civilians in harms way

Could it be said that being a regional superpower, relentlessly repressive of both violent and nonviolent protest by Palestinian nationalists and unwilling to address — or even to cease exacerbating — the basic causes of the conflict, leaves the Hamas guerrillas only the alternatives of surrendering or else putting civilians in harm’s way?

To be clear: 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. But surely condemnation of Hamas that fails to acknowledge the hard choice forced on it by Israel is a little hollow?

165

Sebastian 01.13.09 at 6:59 pm

“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.

166

geo 01.13.09 at 7:05 pm

The problem, Sebastian, is not your recollection. You recollect perfectly well what you were told by the mainstream American media, whose coverage of the Israeli-Palestinian conflict is almost unbelievably superficial and biased. More serious analysts, like Tanya Reinhardt, Noam Chomsky, Robert Fisk, Uri Avnery, Helena Cobban, MERIP, et al, tell a very different story.

167

geo 01.13.09 at 7:08 pm

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

168

Sebastian 01.13.09 at 7:21 pm

Ok, but that is rather uninformative. Surely you have some opinions about what the best times for Palestinian progress were. I would place it at about the time of the effective end of the first intifada (1991 or so) and up to a year before the beginning of the 2nd (late 2000). I would especially assert that things would have been better for the Palestinian people today if their leaders had not stirred up the second intifada (which by all accounts was not nearly so spontaneous as the first intifada).

Do you believe that the Palestinians had more progress in other times (please identify them) or that the Clinton-era times were more violent than the times that came before or after it (please justify)?

169

Rob K 01.13.09 at 7:32 pm

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.

170

Alex 01.13.09 at 7:34 pm

By any modern definition the American war for Independence from Britian was undertaken by a “bunch of terroists” and “terrorist cells” attacking the “democratically” elected government.

171

geo 01.13.09 at 7:41 pm

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.

172

Sebastian 01.13.09 at 7:49 pm

“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.”

Nope. I just don’t judge the facts on the ground based on nationalism the way you seem to. Palestinian civilians were undeniably better off in the period I identified. The actual human beings that we are talking about were much better off then. You can decry Israel’s ‘expansionism’ as much as you want, but it doesn’t change the fact that 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. That may not be FAIR, but it is TRUE.

173

geo 01.13.09 at 8:11 pm

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.

174

Watson Aname 01.13.09 at 8:49 pm

You can decry Israel’s ‘expansionism’ as much as you want

Aside from any other issue discussed here, I find it hard to imagine a useful definition of “expansionism” that doesn’t include Israel’s actions. This is quite separable of how acceptable one might find these actions.

175

Sebastian 01.13.09 at 9:13 pm

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…

176

dsquared 01.13.09 at 9:27 pm

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.

Neither of these would be inconsistent with the Protocols requirement to be neither indiscriminate nor excessive. I think the observable extreme difficulty in coming up with a non-straw example of a case in which the actual laws of war have obviously unwanted consequences, is decent quality evidence that they’re actually very well drafted indeed, and that it’s unlikely that another thirty years of self-congratulation and chin stroking by “Just war” theorists is going to improve on it, even assuming against the evidence that one day they might give up on the constraint that principles have to be fit around the actual foreign policy of two particular states.

177

dsquared 01.13.09 at 9:38 pm

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.

178

Sebastian 01.13.09 at 9:52 pm

d-squared, I’m frightened because I think I agree with you…

But I wonder if it is for the wrong reasons. I tend to find that in a huge majority of the cases where someone wants to accuse Israel of a war crime, under the Protocols, they pretty obviously aren’t. The Protocols in reality offer fairly wide possibilities for military objectives, and fairly large amounts of civilian injury possibilities are ok under proportional and they really do tend to try to discriminate between civilian and military. The funny thing is that Hamas and the like tend to let them off the hook so far as the Protocols go, by doing things like mixing military and non-military persons and objects.

They want to say that delaying the ambulances would still be a war crime EVEN IF Hamas uses them illegally. They want to say that bombing the apartment building is still a war crime EVEN IF Hamas puts a military objective on top. They want to say that killing police officers is a war crime EVEN IF Hamas uses them as a paramilitary group. The actual Protocols don’t let them do that.

179

geo 01.13.09 at 10:03 pm

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.

180

dsquared 01.13.09 at 10:05 pm

I think the most unambiguous examples were the bombing of the LibanLait dairy in Lebanon in 2006 and the Qana ambulance rocket. And also, on the numerous occasions in 2006 and in the present conflict when Israeli government spokesmen said that they were aiming to intimidate the civilian population or carry out reprisals, they didn’t seem to be aware that they were accusing their own army of war crimes.

They want to say that bombing the apartment building is still a war crime EVEN IF Hamas puts a military objective on top.

The majority of AA emplacements on apartment buildings in the Lebanon conflict were simply there to defend the building – I’ve not really seen any evidence that things are otherwise in Gaza. There’s also the issue of the Gaza blockade, which really does look like it has, on occasion, shaded into the use of starvation as a weapon. They’re all probably arguable either way, but it’s pretty disturbing to have so very many of them.

181

dsquared 01.13.09 at 10:10 pm

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).

182

Sebastian 01.13.09 at 10:38 pm

“The majority of AA emplacements on apartment buildings in the Lebanon conflict were simply there to defend the building – I’ve not really seen any evidence that things are otherwise in Gaza.”

Again, a little military knowledge would do you a lot of good. I thought you misspoke in your earlier point when you wrote “but the principle that they suggest is that an AA gun protecting a civilian object must only be used for protecting that object; if the crew manning it were in the habit of firing at aircraft overflying them when their apartment building was not under attack, then they’re a military objective.” At this point in technology (and frankly for at least 30 years) and anti-aircraft emplacement on a building is never to defend that building. It almost can’t be with respect to planes (and there are other issues with respect to helicopters). Anti-aircraft guns have to be put significantly in front of the targets they protect in order to discourage the overflying planes from getting close enough to fire a missile at the target.
Anti-aircraft guns exist to prevent planes from using a certain route.

The majority of anti-aircraft guns are most certainly NOT to protect the building they are on. I would almost say that none of them are, but will avoid the absolutes to merely note that most of them are not.

If you are hanging you opinion on that, you either bought some bad propaganda, or just didn’t understand how anti-aircraft guns typically function.

I will however agree with you that the bombing of the milk factory appears to be a war crime.

The Qana ambulance incident is more questionable however. The initial reports of a missile strike were self-evidently wrong (as a missle even if unexploded would have cause enormously more damage). There was quite a bit of speculation that it was a hoax. The HRW report which states that it was not a hoax is rather conclusory see especially pp12-14 of their report at this link (and please before I get accused of not looking at the evidence note that I’m linking to the “it wasn’t a hoax” report. The essentially say “yes it wasn’t a missile because that would have destroyed the ambulance, whoops, but *something* clearly damaged the ambulance and we don’t have any evidence for what it was, therefore it must have been an Israeli drone”. And of course to be a war crime, the ambulance would have to have been intentionally targeted or not have been an accident, which is not established. (The reason it would have been targeted at all is not established).

So anti-aircraft guns–you’re completely wrong and in a really big way
Milk Factory–you’re right
Qana Ambulance–I don’t know.

183

Phil 01.13.09 at 10:41 pm

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.)

184

Alex 01.13.09 at 11:46 pm

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.

Especially as bandsmen’s war role is traditionally as the regimental stretcher bearers.

Regarding AA guns, the usual use of them in urban wars (especially in the Middle East) isn’t against aircraft at all, but just as a really big machine gun; all parties in the Lebanon did this, and the Israelis eventually used their M61 Vulcans on armoured vehicles in just the same way.

185

Donald Johnson 01.14.09 at 12:09 am

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.

186

Watson Aname 01.14.09 at 12:11 am

As for why Israelis would target civilians—for terror purposes.

This one is the elephant in the room.

187

dsquared 01.14.09 at 12:26 am

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.

188

Sebastian 01.14.09 at 12:39 am

“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.”

This no sense. You claimed “The majority of AA emplacements on apartment buildings in the Lebanon conflict were simply there to defend the building”

Do you understand that this is false? Do you understand that an anti-aircraft building almost cannot defend the building it is on? Therfore it IS almost never a civilian object in the way you seem to think?

“There was no military objective beyond the residential areas of Beirut and Qana which the IAF might have been overflying. “

First, this is a rather different claim than the false claim that the AA guns are just there to defend the building they are on. Are you abandoning that claim without comment now that it is obviously false or are you pretending that you had some other claim all along?

Second, the idea that there was no military object anywhere near Beirut or Qana such that military airplanes couldn’t be flying there is ridiculous. And even if that ridiculous claim were true, it wouldn’t transform the AA guns which can’t possibly be protecting the buildings they are on into non-military items.

A little less sophistry indeed!

189

dsquared 01.14.09 at 1:09 am

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.

190

Sebastian 01.14.09 at 1:29 am

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

Jesus Christ you’re really out of your depth in military matters aren’t you? They have anti-aircraft guns and travel in groups sailing about a mile from each other to give each other covering fire. That is why in a carrier group you have the main anti-aircraft gun frigates sailing in the outside perimeter with the aircraft carrier in the middle. Sheesh.

Admitting you’re wrong can be a virtue.

“I am almost certain that this is pretty much the only way that you could organise AA protection of a city. “

Nope. You put them outside the city if you want to defend the 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.”

See above.

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

Heh. You certainly would be an expert on THAT now wouldn’t you?

191

Donald Johnson 01.14.09 at 2:46 am

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.

192

MH 01.14.09 at 2:48 am

As far as the enforceability of international law, the Onion (http://www.theonion.com/content/news/u_n_acquires_nuclear_weapon) just made more sense than 99% of what I’ve heard on the topic.

193

Donald Johnson 01.14.09 at 3:01 am

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.

194

Sebastian 01.14.09 at 3:05 am

“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.”

Of course, but that is rather different from the ‘protecting its own building’ garbage.

195

roy belmont 01.14.09 at 3:56 am

196

Righteous Bubba 01.14.09 at 4:37 am

Via Boing Boing. Follow the link for lots of footage.

Al Jazeera is releasing 12 broadcast quality videos today shot in Gaza under Creative Commons’ least restrictive Attribution license. Each professionally recorded video has a detailed information page and is hosted on blip.tv allowing for easy downloads of the original files and integration into Miro. The value of this footage is best described by an International Herald Tribune/New York Times article describing the release:

In a conflict where the Western news media have been largely prevented from reporting from Gaza because of restrictions imposed by the Israeli military, Al Jazeera has had a distinct advantage. It was already there.

More importantly, the permissive CC-BY license means that the footage can be used by anyone including, rival broadcasters, documentary makers, and bloggers, so long as Al Jazeera is credited.

There’s more information over at Al Jazeera’s CC repository, and in our press release. You can also add the Al Jazeera repository to your Miro feeds by clicking here.

197

dsquared 01.14.09 at 6:30 am

198

Sebastian 01.14.09 at 8:00 am

You are apparently having trouble reading if you think that supports your view that most defensive AA guns are meant to defend the place they are mounted rather than something further behind them. Honestly, just talk to someone you know and trust who has military expertise or informal military knowledge. Surely you know someone like that? Right? Seriously?

Ask them, straight up whether it is much more likely that an AA gun mounted on an apartment is meant to defend that apartment or meant to stop fly over to somewhere else.

I honestly don’t know what to say other than that. You are basically arguing with the earth is round level of military knowledge. I don’t fault you for not initially being knowledgeable. But being an ass about your ignorance is kind of silly.

199

dsquared 01.14.09 at 8:23 am

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.

200

sg 01.14.09 at 8:45 am

Sebastian, the IDF is currently accused of capturing residential blocks, locking their civilians downstairs, and using them essentially as human shields while they fight from upstairs. While denying them medical care for their injuries, of course. They also blew up a few schools. There is going to be an ICJ ruling. Perhaps you missed the red cross report earlier this week while you were busy reading pro-settlement propaganda? They have a list of violations as long as their arm, hoax ambulance bombings or AA guns aside.

Your assertions about palestinian non-violent achievements may or may not be true but now they’re irrelevant – Gaza strip is a ghetto, there is no non-violent resistance the Gazans can take anymore, even if they wanted to.

I also think that the consideration of hamas having “brought it on themselves” (and those 200 kiddies who died, presumably also having “brought it on themselves”) needs to be adapted to the fact that settler communities near gaza are essentially paramilitary outposts – they are extensions of Israeli colonial (and thus military) policy. They serve a role similar to early settlers in other places (the USA, Australia). They have militias, and before complete separation was imposed their ordinary citizens served a role as agents of Israeli state terror. They would beat Palestinian farmers while being guarded by soldiers, they would shoot at Palestinian houses, etc. Given that the IDF is beyond Gazan military attack, all that remains are these semi-military targets. Defenders of IDF excesses like to pretend that these settlements are purely civilian for the purpose of establishing a crime worth retribution, but its a fantasy.

201

Sebastian 01.14.09 at 8:58 am

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.

202

Sebastian 01.14.09 at 9:02 am

Whoa, hold on a second there sg. I don’t defend the archipelago settlements at all. (I don’t condemn the Jerusalem houses on the other hand but that is an easily distinguishable case). 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.

203

dsquared 01.14.09 at 9:23 am

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.

204

dsquared 01.14.09 at 9:25 am

(by the way, just to make this clear, Lebanon would be a funny place if Hezbollah was actually allowed to build fixed gun emplacements on buildings. All references made to “on top of” here should be altered to reflect the reality; of mobile AA guns parked on the streets in the residential districts they were defending).

205

sg 01.14.09 at 9:28 am

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?

206

Objective 01.14.09 at 9:48 am

Lets speak true….
I think that 101% of Russia’s reasons is politics.
Now, after Europe ‘swallowed’ war into Georgia, there are no forces to stop Russia in their policics. After Russia saw how Europe burned Gerorigian an Ukrainian NATO hopes, russians understood who is owner of Europe now.
Whatever will happens in GAZ-o-WAR the result is obvious – Ukraine will lose. They just have no chance. There are just some reasons:
1. Russia won information war. Absolutely and tottaly. The fact is no country now can compete with Russia in INFO-war.
2. Europe will ‘swallow’ everything Russia will do with Ukraine. It seems that West world understood already that Europe now is too weak to compete with Russia. Georgia lost part of country – Ukraine will be part of Russia next two years. It is tottaly ukrainian fault.
3. Germany now ( say true) works for Russia. There is no real choice for Germany (read ‘EU’) between gaz and Ukrainie. Gaz is heat for homeowners, gaz is real money for politics and what is Ukraine for them? EU doesn’t need them really but Russia needs. Gorgia is nothing important for Russia, but Ukraine …. It is another story. There is no real Russian Empire without Ukraine. Ukrainian independency was always ‘an nail in Russian bear’s ass’ And now it time for Russia. Just wait for next government of Ukraine after collapse of Ukraine. It will be fully approved in Moscow.

History for europe repeats… The power is right. This time is for Russia to raise.
Too long time Russia was on the knees.

207

Hidari 01.14.09 at 10:47 am

‘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)?

208

zdenekv 01.14.09 at 11:03 am

sg 204 :
“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,……”

But there are two Palestinian wars against Israel –one more or less criminal but the other one legitimate–and you are running them together. One is waged by Hamas to destroy the state of Israel. And the other –the second Palestinian war against Israel– is a war to create an independent state alongside Israel , ending the occupation of the West Bank and Gaza. The first war is unjust ( its aim is criminal because the commitment to destruction of Israel agaist the international law and the method –shields , civilians deliberately targeted etc –by which it is carried out is obviously also criminal ) and need to be either defeated or given up by the Palestinians. But the war for an independent state alongside Israel is obviously legit because it is just and is fought most of the time justly.

209

sg 01.14.09 at 11:11 am

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.

210

zdenekv 01.14.09 at 11:24 am

Sg, I think you must make up your mind whether you want to defend 1) that Hamas doesnt aim at destruction of Israel nor does it use illegal means ; This is basically saying that Hamas is not a terrorist organization. OR 2) that Hamas indeed is a terror outfit but that terror can be morally justified. You seem to be moving between these two quite different positions . For instance your comment at # 204 insinuates that terror can be justified. What is your real view ?

211

sg 01.14.09 at 11:43 am

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.

212

gastro george 01.14.09 at 11:48 am

zdenekv – you’re a bit of a Manichean troll. How about the following:

Hamas has used rhetoric that talks about “the removal of Israel” (did they actually mention destruction, or removal from what, or was that a convenient translation?). But Hamas has also shown that it is capable of negotiation and delivering on that negotiation, viz. the recent ceasefire.

Hamas has used terrorist tactics, which are illegal. But Hamas has also used legal tactics in resisting the occupation.

None of the latter is mutually exclusive. Nor should rhetoric or the use of tactics prevent Hamas from being included in peace talks. The IDF is under investigation for war crimes, and it’s current campaign could certainly be described as terroristic. Should that exclude Israel from any talks? Should we boycott the Israeli government until we have an “acceptable” partner for peace?

213

Hidari 01.14.09 at 12:28 pm

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.

214

Donald Johnson 01.14.09 at 12:30 pm

Now and then it’s useful to read Tom Friedman– here he is in his own inimitable way simultaneously admitting and denying that Israel targeted civilians in the Lebanon war. He says

“Israel’s counterstrategy was to use its Air Force to pummel Hezbollah and, while not directly targeting the Lebanese civilians with whom Hezbollah was intertwined, to inflict substantial property damage and collateral casualties on Lebanon at large. It was not pretty, but it was logical. Israel basically said that when dealing with a nonstate actor, Hezbollah, nested among civilians, the only long-term source of deterrence was to exact enough pain on the civilians — the families and employers of the militants — to restrain Hezbollah in the future.”

There is such a thing as genuine collateral damage and if you’re not a pacifist you have to acknowledge that even with the best of intentions it’s impossible to fight a war without killing innocents. But I think there are a lot of times when “collateral damage” and claims that the other side is using “human shields” is just a pack of lies. The collateral damage is part of the reason for the targeting.

215

zdenekv 01.14.09 at 12:32 pm

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 .

216

zdenekv 01.14.09 at 12:47 pm

sg #209 : I don’t think they’re incompatible, are they?

Of course they are incompatible : the first claim says that Hamas are not a terror org. whereas the second claim says that Hamas is a terror org.

217

Donald Johnson 01.14.09 at 1:02 pm

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.

218

zdenekv 01.14.09 at 1:05 pm

#211 : Hamas has used terrorist tactics, which are illegal. But Hamas has also used legal tactics in resisting the occupation.

Of course, but before you rush to find an excuse, note that the tactics and ideology of Hamas are actually a “case study par excellence” of a systematic violation of international humanitarian law ( at least six different types of systematic violations that are built into the outfit ) . I mean what is interesting and not often enough noted is that Hamas ideology too is criminal from international law point of view . This is the prohibition in the Fourth Geneva Convention and international jurisprudence against the direct and public incitement to genocide. The Hamas covenant itself is a standing incitement to genocide. But then again maybe they dont mean it etc. is that the defence now ? Pathetic.

219

JoB 01.14.09 at 1:20 pm

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.

220

zdenekv 01.14.09 at 1:25 pm

#211 : ” The IDF is under investigation for war crimes, and it’s current campaign could certainly be described as terroristic. “

Very good and I hope that if they have committed war crimes this can be pinned on them. The point I want to make is that if we take the Principle of Discrimination ( including the rule of non combatant immunity ) seriously and say that civilians enjoy robust and unequivocal protection during armed conflict we cannot apply these principles only when it jives with our political convictions ( see sg’s and Hidari’s line ) and say that Israel is guilty of wrongfully killing non combatants but then go on to excuse Hamas from doing the same.

221

zdenekv 01.14.09 at 1:47 pm

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.

222

sg 01.14.09 at 1:58 pm

Neither do the IDF, zdenekv. The difference is that the IDF can choose other targets and other methods (including not going to war), while Hamas can’t.

As for your idea that I am denying “agency” by suggesting we shouldn’t be so quick to judge palestinian militants locked in their ghetto – what piffle! 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. In fact, your main justification for Israel’s continual war crimes is exactly the same : they face exterminatiom from a real threat, etc.

Either you seriously believe that a couple of rockets from Hamas constitute a serious threat of extermination, while a nuclear armed Israel corraling starving Palestinians into a strip of overcrowded city does not; or you are selectively applying your moral framework. And why the latter? because you refuse to accept that Israel in becoming a colonising state has lost its ability to fight a “just war”. There are no just war’s where colonisation is the goal.

223

zdenekv 01.14.09 at 2:25 pm

“…. 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 .

224

sg 01.14.09 at 3:26 pm

Because in this case they are one and the same – the settlements are a paramilitary force on their borders, an extension of colonialism by arms. i.e. military targets. While the Israeli targets are not military, since their intent is to kill Palestinian civilians regardless of their military role or their proximity to military “targets”.

The question you should be asking yourself is how an armed settlement on Gaza’s borders could constitute a civilian target in this colonial context, i.e. how can Hamas actions be construed as terror?

225

geo 01.14.09 at 4:56 pm

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.

226

zdenekv 01.14.09 at 5:08 pm

how an armed settlement on Gaza’s borders could constitute a civilian target in this colonial context, i.e. how can Hamas actions be construed as terror?

see my # 219 which deals with very much the same question. Hidari raises similar defense you are now mounting viz. that the Hamas is not targeting civilians actually but rather colonists who do not enjoy immunity. See my reply to him.

227

zdenekv 01.14.09 at 5:30 pm

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 ).

228

sg 01.15.09 at 10:44 am

zdenek by your definition the settlers are terrorists, not mere “ancilaries” to the conflict and they definitely aren’t innocent bystanders. They are armed, they have a militia and they are on stolen land. Surely stealing someone’s land and shooting at them when they come near it counts as “severe damage” to their property?

I think your view of the role of these settlers is extremely rosy.

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. These wars aren’t meant to happen anymore. In such a war the “military objective” of the victims is to turf their oppressors off their land, which one way or another is going to involve a lot of civilian terror (at the point where they successfully turf people out of their homes). And the military objective of the colonising state is the extinction of all claims to its new land, which can only be achieved by terrorising or destroying a civilian population. You will have noticed that that is what Israel is doing.

With those as the military objectives of this war, the protocols were shredded from the start. The only way we can assess this war is in terms of who is in the right from the start, and it’s that basis of assessment which makes the Israelis look so evil.

229

zdenekv 01.15.09 at 1:39 pm

“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?

230

zdenekv 01.15.09 at 2:15 pm

I think your view of the role of these settlers is extremely rosy.

You don’t seem to be able to follow an argument : Hamas are terrorist not because they kill soldiers or armed settlers ( I conceded that some settlers are best seen as ancillaries and hence do not have immunity) . The argument you continue to duck is that Hamas are terrorists because they don’t distinguish between combatants and non- combatants. They dont distinguish between or aim to kill “perfect bystanders” ( babies , small children who are totally innocent of knowingly and freely intending harm ) and “outright fighters” ( these freely choose to fight and understand the nature of the war ).

231

sg 01.15.09 at 4:14 pm

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.

232

zdenekv 01.15.09 at 5:20 pm

“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)”.

We are asking whether Hamas are a terrorist outfit and the only way to show that they are not, is to argue either that they do not in fact systematically and as a matter of policy violate the Principle of Discrimination ( in other words that they take care to attack only combatants who don’t have immunity against lethal force ) OR that Hamas is indeed a terrorist org. but their terrorism is justified / excused( one could also argue that the concept ‘terrorist ‘ is empty and useless but lets set that approach aside ). You are arguing for the second claim, I take it, but this cannot be established by the argument you are using . That is , you cannot establish that Hamas are justified using the tactics they do, by showing that Israel does too. Why ?

Take an example : you are aggressively and unjustly attacked by a man with an axe and you are forced to reach for a gun but during the struggle the gun faces towards a small child across the street who is staring at the struggle in amazement. You are tempted to shoot the child thinking that her screams will distract the attacker and maybe save your life . Can you shoot the child ? No, because she is a perfect bystander. What you tried to argue is that because the axe man ( Israel ) is wrongfully attacking you, you ( Hamas ) are released from moral obligation not to harm the child. But that is false.

233

sg 01.15.09 at 5:44 pm

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?

234

MarkUp 01.15.09 at 7:30 pm

The Axe Man Cometh.

zdenekv, the very definitions and analogies you apply to label Hamas as “terrorists” when applied in a [non-Foxian] fair and balanced way leads to the same label sticking to Israel on more occasions than the current one.. The various tactics used to argue that one is and one isn’t serves only to to perpetuate the problem to the advantage of the main actor.

Comments on this entry are closed.