24 February 2010 By Jeff Halper The International Court of Justice / The
Hague The Israeli attack on Gaza in December 2008/January
2009 was not merely a military assault on a primarily
civilian population, impoverished and the victim of
occupation and besiegement these past 42 years. It was
also part of an ongoing assault on international
humanitarian law by a highly coordinated team of
Israeli lawyers, military officers, PR people and
politicians, led by (no less) a philosopher of ethics.
It is an effort coordinated as well with other
governments whose political and military leaders are
looking for ways to pursue “asymmetrical warfare”
against peoples resisting domination and the
plundering of their resources and labor without the
encumbrances of human rights and current international
law. It is a campaign that is making progress and had
better be taken seriously by us all. Since Ariel Sharon was indicted by a Belgian court
in 2001 over his involvement in the Sabra and Chatila
massacres and Israel faced accusations of war crimes
in the wake of its 2002 invasion of the cities of the
West Bank, with its high toll in civilian casualties
(some 500 people killed, 1,500 wounded, more than
4,000 arrested), hundreds of homes demolished and the
urban infrastructure utterly destroyed, Israel has
adopted a bold and aggressive strategy: alter
international law so that non-state actors caught in a
conflict with states and deemed by the states as
“non-legitimate actors” (“terrorists,” “insurgents”
and “non-state actors,” as well as the civilian
population that supports them) can no longer claim
protection from invading armies. The urgency of this
campaign has been underscored by a series of notable
setbacks Israel subsequently incurred at the hands of
the UN. In 2004, at the request of the General
Assembly, the International Court of Justice in The
Hague ruled that Israel’s construction of wall inside
Palestinian territory is “contrary to international
law” and must be dismantled—a ruling adopted almost
unanimously by the General Assembly, with only Israel,
the US, Australia and a few Pacific atolls dissenting.
In 2006 the UN Commission of Inquiry concluded that “a
significant pattern of excessive, indiscriminate and
disproportionate use of force by the IDF against
Lebanese civilians and civilian objects, failing to
distinguish civilians from combatants and civilian
objects from military targets.” together with the
harsh criticism of the UN’s Goldstone report on Gaza
accusing the Israeli government and military again of
targeting Palestinian civilians and causing
disproportionate destruction, has made this campaign
even more urgent. Fortunately, it is an uphill battle. The thrust of
just war theory, from which international humanitarian
law (IHL) draws, is to limit warfare, and in particular to
regulate its conduct and scope. Wars between states
should never be total wars between nations or
peoples. Whatever happens to the two armies
involved, whichever one wins or loses, whatever the
nature of the battles or the extent of the
casualties, the two nations, the two peoples, must
be functioning communities at the war's end. The war
cannot be a war of extermination or ethnic
cleansing. And what is true for states is also true
for state-like political bodies such as Hamas and
Hezbollah, whether they practice terrorism or not.
The people they represent or claim to represent are
a people like any other (Margalit and Walzer 2009). Protecting the lives, property and human rights of
civilians caught up on warfare from the power and
impunity of states is especially relevant in our age
when, as British General Rupert Smith (2005) tells us,
modern warfare is rapidly moving away from the
traditional inter-state model to what he calls a “new
paradigm”—“war amongst the people”—in which “We fight
amongst the people, not on the battlefield.” A more
popular term used by military people, “asymmetrical
warfare,” is perhaps more honest and revealing, since
it highlights the vast power differential that exists
between states and their militaries and the relative
weakness of the non-state forces confronting them. Now the issue of adapting laws and ethical
approaches coming out of traditional inter-state
warfare to new forms of “asymmetrical warfare” is a
legitimate and vital endeavor. As Judge Richard
Goldstone indicated in the report of the United
Nations Fact Finding Mission on the Gaza Conflict
(2009:5), “The Mission interpreted [its] mandate as
requiring it to place the civilian population of the
region at the centre of its concerns regarding the
violations of international law.” Two prime issues of
concern arise here: protecting all
non-combatants finding themselves caught up in armed
conflict, whether from state or non-state adversaries,
and the degree to which non-state actors must be held
accountable under IHL, no matter how just their cause
may be. Thus the Goldstone Report, recognizing the
limitations under which non-state actors operate,
specified as well the obligation of Palestinian armed
groups “to exercise care and take feasible precautions
to protect the civilian population in Gaza from the
inherent dangers of the military operations.” Common sense and justice argue against a symmetry
of responsibility between heavily armed and
coordinated state-sponsored armies able to exert
enormous force in order to exercise effective control
over a territory and its people (Israel over the
Occupied Palestinian Territories, in this case) and
the military weakness, financial constraints and
fundamental difficulties of non-state actors resisting
oppression in either protecting their people or
creating a neutral “battleground” separate from its
civilian populations (as in the case of the
Palestinians). Nonetheless, even a certain implied
symmetry introduced by the Goldstone committee in
which non-state actors possess legitimacy as “a side”
is unacceptable to Israeli political and military
leaders. This, despite the fact that, in 1960, the UN
General Assembly’s Declaration on the Granting of
Independence to Colonial Countries and Peoples
endorsed the right of peoples to self-determination
and, by extension, their right to resist “alien
subjugation, domination and exploitation”—again, with
the obligations set out by the Goldstone Report. Nor
is the notion that states and their armies should be
significantly constrained in their military actions by
IHL acceptable to Israeli decision-makers, political
and military. They seek, therefore, to alter
international law in ways that enable them—and by
extension other states involved in “wars on terror”—to
effectively pursue warfare amongst the people while
eliminating both the legitimacy and protections
enjoyed by their non-state foes. This campaign is led by two Israeli figures: Asa
Kasher, a professor of philosophy and “practical
ethics” at Tel Aviv University, the author of the
Israeli army’s Code of Conduct, and Major General Amos
Yadlin, former head of the IDF’s National Defense
College, under whose auspices Kasher and his “team”
formulated the Code of Conduct, and today the head of
Military Intelligence. And, Kasher vigorously asserts,
it is completely appropriate and understandable that
Israeli should be leading it. “The decisive question,”
he says, is how enlightened countries conduct themselves.
We in Israel are in a key position in the
development of law in this field because we are on
the front lines in the fight against terrorism. This
is gradually being recognized both in the Israeli
legal system and abroad. After the debate before the
High Court of Justice on the issue of targeted
killings there was no need to revise the document
[on the ethics of fighting terrorism] that Yadlin
and I drafted even by one comma. What we are
doing is becoming the law. These are concepts
that are not purely legal, but also contain strong
ethical elements. Customary international law accrues through an
historic process. If states are involved in a
certain type of military activity against other
states, militias, and the like, and if all of them
act quite similarly to each other, then there is a
chance that it will become customary international
law…. I am not optimistic enough to assume that the
world will soon acknowledge Israel’s lead in
developing customary international law. My hope is
that our doctrine, give or take some amendments,
will in this fashion be incorporated into customary
international law in order to regulate warfare and
limit its calamities (Kasher 2009:7). In their assault on protections afforded to
non-state actors and the populations that support them
by IHL, Kasher and Yadlin go after two of the most
fundamental principles of IHL: the Principle of
Distinction and the Principle of Proportionality. The Principle of Distinction, embodied in the four
Geneva Conventions of 1949 and their two Additional
Protocols of 1977, lays down a hard-and-fast rule:
civilians cannot be targeted by armies and, on the
contrary, must be protected. Article 3 of the Fourth
Geneva Convention states: “Persons taking no active
part in the hostilities…shall in all circumstances be
treated humanely….To this end the following acts are
and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned
persons: violence to life and person…and outrages upon
personal dignity.” The Principle of Proportionality, embodied in the
1977 Protocols to the Fourth Geneva Conventions (to
which neither the US nor Israel is a signatory, but
which nevertheless, as customary law, binds them),
considers it a war crime to intentionally attack a
military objective in the knowledge that the
incidental civilian injuries would be clearly
excessive in relation to the anticipated military
advantage. “The presence within the civilian
population of individuals who do not come within the
definition of civilians,” says Protocol I, Article 50
(3), “does not deprive the population of its civilian
character.” Undermining these principles is therefore a key to
what Kasher and Yadlin (2005) put forward as their
“new doctrine of military ethics.” It is based on
privileging states in their conflicts with non-state
actors and on giving them the authority to deem an
adversary “terrorist,” a term lacking any agreed-upon
definition in IHL and one which obviously removes any
legitimacy a non-state actors so labeled might
otherwise have. Indeed, Kasher and Yadlin’s “Just War
Doctrine of Fighting Terror” is grounded on a
tendentious definition of “terrorism” custom-tailored
to legitimizing state policies and actions. We define
an “act of terror,” they (2005:2) write, as an act, carried out by individuals or
organizations, not on behalf of any state, for the
purpose of killing or otherwise injuring persons,
insofar as they are members of a particular
population, in order to instill fear among the
members of that population (‘terrorize’ them), so as
to cause them to change the nature of the related
regime or of the related government or of policies
implemented by related institutions, whether for
political or ideological (including religious)
reasons. By defining terrorism is defined as “an act”
carried out by an individual or organization, Kasher
and Yadlin both de-contextualize and de-politicize the
protracted struggles of non-state actors, including
those of all peoples oppressed by state (and
corporate) regimes. Although they admit a certain
legitimacy to “guerilla warfare,” by reducing a
popular struggle to a series of discrete acts they
makes it possible to label an entire resistance
movement “terrorist” purely on the basis of one or
more particular acts, with no regard to its situation
or the justness of its cause. Once this is done, it is
easy to criminalize non-state resistance, since
terrorism is, in Kasher’s words, “utterly immoral.”
When, for example, Palestinians or the Hizbollah
attack Israeli soldiers on active duty, Kasher refers
to these acts as “kidnapping” rather than “capturing”
them. This very language and approach also has the effect
of privileging state actors, since it implies that
state actions are by definition legitimate and not
“utterly immoral.” Even when a country is accused of
war crimes, it is often able to justify its actions by
“military necessity.” It is extremely difficult to
actually sanction or punish a country for war crimes
even when they are deemed to have occurred, and even
when all this takes place, “war crimes” possess a
different meaning than the type of criminalization
applied to non-state actors. States may be sanctioned,
but their existential legitimacy is not removed.
Germany was judged as having committed horrendous war
crimes during the Nazi era, and paid certain
penalties, but that did not prevent it from rejoining
the international community immediate after the war.
Thus Kasher and Yadlin define an act as terror by its
“purpose” of terrorizing a particular population
without the slightest thought of applying that
principle to Israel’s own policies and actions over
its occupation of 42 years, despite exhaustive
documentation of that terrorization. Just how self-serving the tendentious use of the
concept “terror” can be is evident in Israel’s own
attempts to have the Iran Revolutionary Guards
declared a “terror organization,” even though, being
an agent of a state, it would not fit into Kasher and
Yadlin’s own state/non-state dichotomy. What, then,
should prevent the international community from naming
the IDF and various covert Israeli agencies such as
the Mossad or the Shin Beit (the General Security
Services) as “terror organizations”? The Goldstone
Report itself concluded that Israel's offensive
against Gaza during Operation Cast Lead was “a
deliberately disproportionate attack designed to
punish, humiliate and terrorize a civilian
population.” Cognizant of this contradiction, Kasher
and Yadlin are careful to add a caveat: they define an
act of terror as one carried out “not on behalf of any
state.” Having de-legitimized state-defined “acts of
terrorism,” Kasher and Yadlin then go on to further
legitimize state actions such as those taken by Israel
against Hizbollah, Hamas or, indeed, all Palestinian
resistance by invoking “self-defense”—again, a claim
which, according to Just War Theory and Article 51 of
the UN Charter, only a state can make. In order to do
so they begins the narrative of events leading up the
attack on Gaza with what the “terrorist” organization
alone had done, launching rockets on the town of
Sderot and its vicinity. Nothing of the fact that the
vast majority of Gazans are refugees from 1948, denied
their right of return and deprived of all their
properties and assets. Nothing of the occupation since
1967 and the deliberate de-development of the Gazan
economy; nothing of the exclusion since 1989 of Gazan
workers from the Israel job market upon which they had
been made dependent, and thus their subsequent
impoverishment; nothing of the years of settlement in
which 7000 Israelis lorded it over a million and a
half Palestinians at a cost to the Palestinians of
much in terms of their lives and livelihoods; nothing
of the siege illegally imposed since 2006, or of the
transformation of Gaza into the world’s largest
open-air prison; nothing of the fact that until today
much of the land of Gaza—and the sea—are off-limits to
Palestinian farmers and fishermen; nothing of the fact
that Gazans live in mud and sewage created by Israel’s
wholesale destruction of their infrastructure; nothing
of the wasted lives of the young people; nothing of
the fact that Hamas observed an 18 month cease-fire
and was willing to extend it, until Israel broke it on
Nov. 4, 2008, setting off the rocket attacks. Nothing,
in short, which would call into question whether the
assault on Gaza was genuinely an act of self-defense. Indeed, the process of de-contextualization is a
prerequisite to the ethics Kasher offers as the basis
of international morality, law, political practice and
warfare. Rather than taking into account of Israel’s
four decades and more of occupation over Gaza and the
West Bank, in which the Occupying Power may be said to
have at least a modicum of responsibility for what
transpires, Kasher instead bases his entire moral
justification on what Israel has done over the years
on a disembodied “double effect” principle, according
to which, “when we are seeking a goal that is morally
justified in and of itself, then it is also morally
justified to achieve it, even if this may lead to
undesirable consequences—on the condition that the
undesirable consequences are unavoidable and
unintentional, and that an effort was made to minimize
their negative effects.” As if maintaining a
belligerent occupation for almost a half century is
unavoidable and unintentional, and Israel actually
took steps to minimize its negative effects. This, then, sets up a hierarchy of
priorities—indeed, “obligations” on states—that turn
IHL on its head. The Principle of Distinction cannot
be honored, Kasher and Yadlin argue, because
“terrorists do not play by the rules.” Nothing less is
required than a fundamental “updating the concept of
war.” “As we sought to try and formulate how to fight
terror,” Yadlin (2004) writes, we understood that we were in a different kind of
war, where the laws and ethics of conventional war
did not apply. It involves not only the asymmetry of
tanks… The main asymmetry is in the values of the
two societies involved in the conflict—in the rules
they obey…. A new model of warfare - the counter-terrorism
war - requires a new set of rules on how to fight
it. The other side is fighting outside the rules and
we have to create new ethical rules for the
international law of armed conflict. The duty of the
state is to defend its citizens. Any time a
terrorist gets away because of concerns about
collateral damage, we may be violating our main duty
to protect our citizens. We look for alternatives so
as not to cause collateral damage, or to cause the
minimum amount of collateral damage, but the main
obligation is to defend our citizens…. Thus, says Kasher, in an area such as the Gaza
Strip in which the IDF does not have effective
control, “the responsibility for distinguishing
between terrorists and noncombatants is not placed
upon [Israel’s] shoulders, since it is not the
effective ruler.” Military commanders must thus place
prime importance on achieving their military
objectives, since this is what self-defense depends
upon. Next in priority is protecting soldiers’
lives—indeed, Kasher and Yadlin define soldiers as
“civilians in uniforms,” thereby eliding the principle
of a state’s duty to protect its citizens with its
deployment of trained and armed combatants sworn to
pursue its military aims. Only then does the army have
to worry about avoiding injury to civilian
non-combatants. “Sending a soldier [to Gaza] to fight
terrorists is justified,” writes Kasher, “but why
should I force him to endanger himself much more than
that so that the terrorist's neighbor isn't killed?”
asks Kasher. “From the standpoint of the state of
Israel, the neighbor is much less important. I owe the
soldier more. If it's between the soldier and the
terrorist's neighbor, the priority is the soldier. Any
country would do the same.” Kasher’s introduces a radically new principle of
distinction—that in territories where it does not
exercise effective control a country does not bear the
moral responsibility for properly separating between
dangerous individuals and harmless ones (Kasher
2010)—as if simply asserting it lends it the necessary
authority. And this is, in fact, the point. “If you do
something for long enough,” says Colonel (res.) Daniel
Reisner, former head of the IDF’s Legal Department,
“the world will accept it. The whole of international
law is now based on the notion that an act that is
forbidden today becomes permissible if executed by
enough countries…. International law progresses
through violations. We invented the targeted
assassinations thesis [that extra-judicial killings
are permitted when it is necessary to stop a certain
operation against the citizens of Israel and when the
role played by the target is crucial to the operation]
and we had to push it. Eight years later it is in the
center of the bounds of legality” (quoted in Kearney
2010:29). Or, as Kasher (2010) puts it, “The more
often Western states apply principles that originated
in Israel to their own non-traditional conflicts in
places like Afghanistan and Iraq, then the greater the
chance these principles have of becoming a valuable
part of international law.” Even the attempt to distinguish civilians from
combatants was abandoned in the assault on Gaza.
According to another report in Ha’aretz
(3.2.10), “The Israel Defense Forces chose to risk
civilians in Gaza in order to protect its soldiers
during Operation Cast Lead, a high-ranking Israeli
military officer told the British daily The
Independent on Wednesday. The IDF officer claimed the
traditional ‘means and intentions’ engagement
principle—stating that a suspect must have both a
weapon and a visible intent to use it before being
fired at—was discarded during Israel's Gaza incursion
in late 2008 and early 2009.” Does that mean that states cannot engage in
terrorism? This is a pretty bold claim. In fact, the
non-state “terrorism from below” which so concerns
Kasher and Yadlin pales in its horror when compared to
“terrorism from above,” State Terrorism. In his book
Death By Government (1994:13), R.J. Rummel
points out that over the course of the 20th century
about 170,000 innocent civilians were killed by
non-state actors, a significant figure to be sure.
But, he adds, during the first eighty-eight years of this
[20th] century, almost 170 million men, women and
children have been shot, beaten, tortured, knifed,
burned, starved, frozen, crushed or worked to death;
buried alive, drowned, hung, bombed or killed in any
other of the myriad ways governments have inflicted
death on unarmed, helpless citizens and foreigners.
The dead could conceivably be nearly 360 million
people. And that doesn’t include Zaire, Bosnia, Somalia,
Sudan, Rwanda, Saddam Hussein’s reign, the impact of
UN sanctions on the Iraqi civilian population and
other state-sponsored murders that occurred after
Rummel compiled his figures. It also does not account
for all the forms of State Terrorism that do not
result in death: torture, imprisonment, repression,
house demolitions, induced starvation, intimidation
and all the rest. “We do not deny,” Kasher (2009) concedes, that a
state can act for the purpose of killing persons in
order to terrorize a population with the goal of
achieving some political or ideological goal.” He then
adds another crucial caveat: However, when such acts are performed by on
behalf of a state, or by some of its overt or covert
agencies or proxies, we apply to the ensuing
conflict moral, ethical and legal principles that
are commonly held to pertain to ordinary
international conflicts between states or similar
political entities. In such a context, a state
that killed numerous citizens of another state in
order to terrorize its citizenry would be
guilty of what is commonly regarded as a war crime
[italics added]. Kasher’s caveat—“a state that killed numerous
citizens of another state in order to terrorize its
citizenry”—apparently means that states can neither be
accused of terrorism nor held accountable for war
crimes arising out of killing or terrorizing civilian
populations such as the people of Gaza, since the
latter are not citizens of another state. As for the Principle of Proportionality, that, too,
is a casualty of Kasher and Yadlin’s assault on IHL.
Their alternative is what is known by the IDF as its
Dahiya Doctrine. Coming out of the second Lebanon war
of 2006, in which Israel destroyed the Hizbollah
stronghold of Dahiya in Beirut, the Dahiya Doctrine
states attacks against Israel will be deterred by
“harming the civilian population to such an extent
that it will bring pressure to bear on the enemy
combatants […] through the damage and destruction of
civilian and military infrastructures which
necessitate long and expensive reconstruction actions
which would crush the will of those who wish to act
against Israel” (PCATI 2009). According to the
Goldstone Report (2009:48), The tactics used by Israeli military armed forces
in the Gaza offensive are consistent with previous
practices, most recently during the Lebanon war in
2006. A concept known as the Dahiya doctrine emerged
then, involving the application of disproportionate
force and the causing of great damage and
destruction to civilian property and infrastructure,
and suffering to civilian populations. The Mission
concludes from a review of the facts on the ground
that it witnessed for itself that what was
prescribed as the best strategy appears to have been
precisely what was put into practice. It then goes on to quote the head of Israel’s
Northern Command, Gen. Gadi Eisenkott: “What happened
in the Dahiya quarter of Beirut in 2006 will happen in
every village from which Israel is fired on. […] We
will apply disproportionate force on it and cause
great damage and destruction there. From our
standpoint, these are not civilian villages, they are
military bases. […] This is not a recommendation. This
is a plan. And it has been approved.” But here again,
it is the assertion of a new version of the principle
that is important. Thus, declares Kasher, the
Principle of Proportionality does not have to do with
inflicting civilian injuries clearly excessive in
relation to the anticipated military advantage, as the
international community now thinks, but the exact
opposite: “Proportionality is justifiability of the
collateral damage on grounds of the military advantage
gained” (Kasher 2010). they almost all give the same answer: The use of
massive force was designed to protect the lives of
the soldiers, and when faced with a choice between
protecting the lives of Israeli soldiers and those
of enemy civilians under whose protection the Hamas
terrorists are operating, the soldiers take
precedence. The IDF's response to criticism does not
sound improvised or argumentative…. And it operated
there not only with the backing of the legal opinion
of the office of the Military Advocate General, but
also on the basis of ethical theory, developed
several years ago, that justifies its actions. Kasher's argument is that in an area such as the
Gaza Strip in which the IDF does not have effective
control the overriding principle guiding the
commanders is achieving their military objectives.
Next in priority is protecting soldiers' lives,
followed by avoiding injury to enemy civilians….
Prof. Kasher has strong, long-standing ties with the
army. He drafted the IDF ethical code of conduct in
the mid-1990's. In 2003 he and Maj. Gen Amos Yadlin,
now the head of Military Intelligence, published an
article entitled “The Ethical Fight Against Terror.”
It justified the targeted assassination of
terrorists, even at the price of hitting nearby
Palestinian civilians. Lt. Gen. Moshe Ya'alon, who
was the IDF Chief of Staff at the time, did not make
the document binding, but Kasher says the ideas in
the document were adopted in principle by Ya'alon
and his successors. Kasher has presented them to IDF
and Shin Bet security service personnel dozens of
times. Such arguments are also being taken up by
“pro-Israeli” critics of IHL. Amichai Cohen (2010),
for example, writing in the Global Law Forum of the
neo-con Jerusalem Center for Public Affairs, sums up
Kasher and Yadlin’s argument succinctly (though
marshalling numerous legal citations just as Kasher
mobilizes ethical arguments): “The concept of
proportionality permits military personnel to kill
innocent civilians, provided that the intended targets
of the operation are enemy forces and not civilians.”
From here Kasher abandons intellectual analysis
completely and descends into mere personal opinion and
unsupportable suppositions. “Some people claim that a
peace agreement between Israel and the Palestinians
would provide Israeli citizens with the best
protection against rockets and missiles, suicide
attacks, and other horrors of terrorism,” he begins. It is true that a democratic state is required to
seek peace agreements with neighboring states and
peoples. However, the idea that it is possible to
reach a political settlement with the Palestinians
that would be upheld by Hamas, Islamic Jihad, and
other terrorist organizations is quite doubtful.
Even if we accepted the plausibility of such a
claim, it is all but certain that rocket
attacks on Israel would continue throughout the
negotiations. In fact, they would likely
increase. Leaving a state’s citizens
vulnerable to persistent threat is not morally
justified by the mere fact of ongoing
negotiations. Nor can the fact that negotiations are
taking place justify avoiding the last-resort option
after all alternative courses of action have
failed…. There are those who call on Israel to
engage in direct negotiations with Hamas, in order
to rid its citizens of the threats posed to them by
rocket attacks and other kinds of terrorist
activity. This argument warrants a similar response.
From a moral standpoint, demanding that Israel
engage in direct negotiations with a terrorist
organization that does not recognize its right to
exist cannot be justified (Kasher 2009. italics
added). Apparently this method is common when Israelis
attempt to alter IHL in order to justify unjustifiable
practices. A few years ago (April 15, 2005, p. 34) the
Up Front weekend magazine of The
Jerusalem Post published an interview with an
Israeli “expert in international law” who, tellingly,
chose to remain anonymous. This what s/he said: International law is the language of the world
and it’s more or less the yardstick by which we
measure ourselves today. It’s the lingua franca of
international organizations. So you have to play the
game if you want to be a member of the world
community. And the game works like this. As long as
you claim you are working within international law
and you come up with a reasonable argument as to why
what you are doing is within the context of
international law, you’re fine. That’s how it goes.
This is a very cynical view of how the world works.
So, even if you’re being inventive, or even if
you’re being a bit radical, as long as you can
explain it in that context, most countries will not
say you’re a war criminal. This is a serious stuff. We are in the midst of the
second battle of Gaza, a campaign not only to refute
and defame the UN’s Goldstone Report and sanitize
Israel’s actions there but to change international
humanitarian law in a way that protects the powerful
states and their armies while removing the fundamental
rights of the world’s poor and downtrodden to resist.
The stakes are high. What will happen to the
Palestinians—or oppressed peoples everywhere—if Kasher
& Co. succeed in striking the Principles of
Distinction and Proportionality from international
law? Imagine an entire world unprotected against
occupation, invasions, exploitation and warehousing, a
global Gaza. It would be world that reflects current
reality: everyone would be either an Israeli Jew, part
of a privileged global minority who main ethical
responsibility is towards defending itself against
“terrorists,” or a Palestinian, part of an
impoverished, occupied majority with no control over
its resources or its future, which nevertheless
carries responsibility for the well-being and security
of its violent “zero-tolerant” masters. Standing on the ramparts of international law to
guarantee its integrity should be an integral part of
the struggle against oppression everywhere. If the
people of Gaza can become fair game, so can any of us.
In terms of vulnerability as well as solidarity, we
are all, indeed, Palestinians. If IHL needs to be
altered to take into account the rise of no-state
actors in international conflicts—and here we should
note the increased use of “outsourced” private
military contractors by states and corporations, the
emergence of “failed states,” many of which combine
state apparatus with criminal activity, and even the
role played by NGOs—then it must be done in a way that
continues to protect civilians and oppressed peoples
against states, often their own. Kasher and Yadlin’s
assault on IHL, sponsored and legitimized by the
Israel government “in the name of” other states
engaged in so-called wars of terrorism, threatens to
give powerful governments, their militaries and allied
corporations a free hand in bringing about a global
“order” friendly to their interests at the expense of
the world’s peoples. Given what Michael Klare calls “the new landscape
of global conflict”—state-initiated resource wars
(initiated or fueled, it must be noted, primarily by
the powerful democratic states which control
the global economic system and account for more than
80 percent of the world’s arms trade, whose revenues
reached $1.46 trillion in 2008)—the prospect of states
free of the constraints of IHL should give us all
pause. For, as it turns out, the sites of future wars
are largely in the very areas where people—framed as
“terrorists”—are resisting the plundering of their
resources, neo-colonialism and their own permanent
warehousing. These sites, Klare (2001) tells us, will be places that harbor particularly abundant
supplies of vital materials—oil, water, diamonds,
minerals, old-growth timber—along with supply routes
that connect these areas to major markets around the
world. These regions will command attention from the
media, dominate the deliberations of international
policy makers, and invite the heaviest
concentrations of military power…. [They comprise] a
wide band of territory straddling the equator. Israel’s attempt to globalize its legal, moral,
political and military justifications for what it
did—and continues to do—in Gaza, the West Bank and
Lebanon should concern us all. Just as Israel used
Gaza as a laboratory for tactics and weapons of
“counterinsurgency” and urban warfare, so, too, is it
attempting to export its “new doctrines” in a way that
fundamentally compromises the well-being of people
caught in conflicts worldwide. As (Kasher and Yadlin
2005:4) write explicitly, the proposed principles are meant to be justified
and practically applicable under any parallel
circumstances. Moreover, those principles are
intended to be universal in an additional crucial
sense…. The different defense agencies of a
democratic state that faces terror should follow
principles that rest on universal moral grounds and
on the professional and organizational ethical
grounds related to each of those state agencies on
its own, be it military, regular police, combat
police or preventive intelligence. In this sense, everyone resisting oppression is a
Palestine. The stakes involved in losing this second
battle of Gaza are high indeed. Israel’s attempt to
“globalize” Gaza imperils us all. References Avnery, Uri 2009 Operation Cast Lead and Just War
Theory. Azure 38 (Autumn. Cohen, Amichai 2010 Proportionality in Modern
Asymmetrical Wars. Jerusalem: Jerusalem Center
for Public Affairs. Kasher, Asa 2010 A Moral Evaluation of the Gaza
War—Operation Cast Lead. Jerusalem Center for
Public Affairs Brief 9(18). ---- 2009 Respnse to Uri Avnery. Azure
38 (Autumn). ---- 2009 Operation Cast Lead and the Ethics of
Just War. Azure 37:43-75 Kasher, Asa and Amos Yadlin 2006 The Military
Ethics of Fighting Terror: Principles.”
Philosophia 34. ---- 2005 Military Ethics of Fighting Terror: An
Israeli Perspective. Journal of Military Ethics
4(1):3-32. ---- 2005 Assassination and Preventive Killing.
SAIS Review 25(1):41-57. ---- 2003 Ethical Counterterrorism. Kearney, Michael 2010 Lawfare, Legitimacy, and
Resistance: The Weak and The Law. ms. Klare, Michael T. 2001 Resource Wars. New
York: Henry Holt. Margalit, Avishai and Michael Walzer 2009 Israel:
Civilians and Combatants. New York Review of Books
56(8). (May 14). McMahan, Jeff 2009 Killing in War. New
York: Oxford University Press. The Middle East Project 2009 Occupation,
Colonialism, Apartheid? A Re-assessment of Israel’s
Practices in the Occupied Palestinian Territories
Under International Law. Capetown: Human Sciences
Research Council. The Public Committee Against Torture in Israel
(PCATI) 2009 No Second Thoughts: The Changes in
the Israeli Defense Forces’ Combat Doctrine in Light
of “Operation Cast Lead.” Jerusalem. Report of the United Nations Fact Finding
Mission on the Gaza Conflict (“Goldstone Report”)
2009 Geneva: Human Rights Council. Siboni, Gabriel 2008 Disproportionate Force:
Israel’s Concept of Response in Light of the Second
Lebanon War INSS Insight 74. Smith, Rupert 2005 The Utility of Force: The
Art of War in the Modern World. New York: Vintage
Books. Yadlin, Amos 2004 Ethical Dilemmas in Fighting
Terrorism. Jerusalem Center for Public Affairs
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