In my last post I explained how just war theory (JWT) distinguishes the question of whether a decision to go to war is justified (jus ad bellum) from the question of whether a war is being waged in ways that are morally defensible (jus in bello).  I argued that Israel’s current actions in Gaza do not satisfy the requirements of jus ad bellum.   Now I want to look at Israel’s conduct of its Gaza military offensive, Operation Protective Edge: is Israel respecting its obligation to minimize the loss of civilian life?

Of course, the same question can be asked of Israel’s adversary, Hamas, but I’m not focusing on Hamas because the answer is obvious: everyone knows that Hamas’s violence targets civilians.   Much more controversial is the proposition that Israel may also be derelict in its obligation to value civilian life.  Besides, it’s Israel, not Hamas, that is bankrolled, enabled and diplomatically protected by the US government.   Most of the readers of this website are American citizens; we are in principle capable of influencing the behavior of our government.  We therefore have some indirect responsibility for Israeli behavior.

Just war theory acknowledges that war is a nasty business and that civilian suffering and death may indeed be inevitable during war.   But the warring parties have a moral obligation to do what is possible to minimize harm to non-combatants.

The very high Palestinian death toll in Gaza (over 1000 as of this writing) naturally raises the concern that Israel may not be meeting its jus in bello obligations, especially given the apparent predominance of civilians over combatants in that death toll (over 3:1) and the overwhelming predominance of Palestinian over Israeli civilian deaths (250:1).   A basic principle of JWT is proportionality: the theory recognizes that, despite the best of intentions, actions aimed at military targets may very well cause harm to civilians; in many circumstances, unintended civilian casualties may be inevitable.   But, the harm caused by military action must be in some reasonable proportion to the good that is achieved.  If civilian casualties are disproportionate, then the military is failing its jus in bello obligations

The good achieved by Israel in Gaza is prevention of Israeli loss of life from rocket fire, reduction of the terror caused by the threat of rocket fire, and reduction of Hamas’ ability to conduct raids in Israel.  But even if we go back several years, Israeli deaths from Gaza’s rockets are a tiny fraction of the current civilian death toll in Gaza.   And the fear Israelis experience from the threat of rocket fire, while real, seems practically insignificant compared to the terror and loss of life the Gazans are experiencing.  Even if we grant that a nation state has a right to value the lives and welfare of its own citizens more than those of anther country, the huge quantitative imbalances point ineluctably to disproportionality.    Madeline Albright has said that Israel is “overdoing” its attack.   A veteran diplomat, Albright is no stranger to the art of understatement.   Former Israeli prime minister designate and current cabinet member Tzipi Livni is less inhibited.  Without using the term, she has fairly boasted that Israel practices disproportionate response: “[Israel] is a country that when you fire on its citizens it responds by going wild—and this is a good thing.”

Even more fundamental than the principle of proportionality is the principle of discrimination as a criterion of jus in bello.  This principle requires that warring parties seek as best they can to distinguish civilians from military targets and avoid harming the former.   Israeli government spokesmen repeatedly insist that Israel does indeed, abide by this principle, that it takes extraordinary measures to avoid civilian casualties.   We don’t have to accept Israel’s claim that Hamas deliberately uses its people as “human shields” to recognize that it is difficult, in the crowded urban setting of Gaza, to safeguard civilians from attacks on legitimate military targets.   The question is how hard Israel tries to do so, or, indeed, whether it tries at all.

This question is undoubtedly being asked right now by a number of human rights organizations whose reports can be expected after the conflict has ended.  But there is already enough credible information to lead us to some tentative conclusions.  Following are excerpts from a preliminary report by one organization, Human Rights Watch (HRW), on a number of incidents it had investigated thus far:

*On July 11, an Israeli attack on the Fun Time Beach café near the city of Khan Yunis killed nine civilians, including two 15-year-old children, and wounded three, including a 13-year-old boy. An Israeli military spokesman said the attack was “targeting a terrorist” but presented no evidence that any of those at the café, who had gathered to watch a World Cup match, were participating in military operations, or that the killing of one alleged “terrorist” in a crowded café would justify the expected civilian casualties.

*In another July 11 attack, an Israeli missile struck a vehicle in the Bureij refugee camp, killing the two municipal workers inside. The men were driving home in a marked municipal vehicle after clearing rubble from a road damaged in an airstrike. Their relatives said that neither man was affiliated with an armed group, and that the driver had followed the same daily routine in the same vehicle every day since July 7. The explosion blew the roof off the vehicle and partly disemboweled a 9-year-old girl and wounded her sister, 8, who were sitting in front of their home nearby. Human Rights Watch found no evidence of a military objective in the vehicle or in the area at the time.

*An Israeli airstrike on July 10 on the family home of Mohammed al-Hajj, a tailor, in the densely crowded Khan Yunis refugee camp killed seven civilian family members, including two children, and wounded more than twenty civilians. An eighth fatality, al-Hajj’s 20-year-old son, was a low-ranking member of the Qassam Brigades, the armed wing of Hamas, residents told Human Rights Watch. The Israeli military said the attack was being investigated. Even if the son was the intended target, the nature of the attack appears indiscriminate and would in any case be disproportionate.

In a later report, HRW discussed its findings in several additional incidents, including the by now well-known case of the four young boys killed on a beach while at play.   After a missile hit a shack that the Israeli military claimed without evidence was a “Hamas structure,” a second missile killed the boys, which the Israeli military says had been mistakenly identified as “fleeing fighters.”  HRW commented, “Evidence at the scene indicates that the attack was carried out with Spike missiles, which have sensors that allow the operator to see the target even after the missile is fired and divert them mid-course if the target is not clearly military.”

The evidence is still limited, but these and other accumulating reports strongly suggest that Israel has not made a consistent, genuine effort to discriminate between civilian and military targets.  It is of course conceivable that that all or most of the Israeli attacks on civilians have been either unavoidable accidents or tragic mistakes.  That possibility can’t be ruled out, but it seems unlikely in light of Israel’s record.  That record notably includes Israel’s last large-scale assault on Gaza, Operation Cast Lead, in December-January 2008-9.   About 1400 Palestinians were killed during Cast Lead; the Israeli human rights group B’tselem estimates that more than two thirds of those killed were non-combatants.   Three Israeli civilians and ten soldiers were killed.

Cast Lead was the subject of extensive investigations by several well-known human rights organizations—including HRW, Amnesty International, and B’tselem—and by a UN-appointed body of distinguished jurists, the Goldstone Commission.  Every one of their reports condemned Israel for lawless, indiscriminate attacks on civilians.  (All of these groups, by the way, also condemned Hamas for its rocket attacks.) This, for example, is from Amnesty International’s summary:

Israeli forces committed war crimes and other serious breaches of international law…. Among other things, they carried out indiscriminate and disproportionate attacks against civilians, targeted and killed medical staff, used Palestinian civilians as “human shields”, and indiscriminately fired white phosphorus over densely populated residential areas.…Much of Gaza was razed to the ground, leaving vital infrastructure destroyed, the economy in ruins and thousands of Palestinians homeless….

Thousands of civilian homes, businesses and public buildings were destroyed. Entire neighbourhoods were flattened. The electricity, water and sewage systems were severely damaged, as was other vital infrastructure. Large swathes of agricultural land and many industrial and commercial properties were destroyed. Much of the destruction was wanton and deliberate, and could not be justified on grounds of military necessity.….

The Goldstone Commission also found that “The Israeli armed forces repeatedly opened fire on civilians who were not taking part in the hostilities and who posed no threat to them.”  The commissioners could see little doubt that “…disproportionate destruction and violence against civilians was part of a deliberate policy.”*

I’ll spare you quotes from the HRW and B’tselem reports; suffice it to say that they provided much additional detail, and were consistent with the Goldstone and Amnesty findings.  (Also consistent were more limited findings by such organizations as Oxfam, CARE and Israeli Physicians for Human Rights.)    I’m not a lawyer and so I prefer to avoid the legalistic term “war crimes.”  But the evidence is overwhelming: Israeli forces committed extensive atrocities during Operation Cast Lead.  There is no reason to expect that they would behave differently during Operation Protective Edge.

How can we explain Israel’s behavior?   I believe that Protective Edge, like Cast Lead and like the continuing blockade of Gaza, has a dual purpose.  The primary and stated purpose is to contain and degrade Hamas’s military capabilities.  But an important secondary purpose is to teach the people of Gaza a lesson—to punish them for allowing Hamas to operate in their midst.  The Israeli hope is that if the Gazans learn their lesson, Hamas will lose support and eventually be supplanted by more moderate leaders. Collective punishment, when it involves the destruction of lives and of infrastructure that supports life, is morally reprehensible.  Whether or not it is an effective strategy, it should be recognized as a form of terrorism.

It seems unlikely that new evidence will change the picture significantly: Operation Protective Edge, like its predecessor Cast Lead, almost surely fails abysmally to satisfy the requirements of jus in bello.

* The target of widespread, often vitriolic denunciation from within his own Jewish community, Richard Goldstone later recanted the conclusion that attacks on civilians reflected deliberate Israeli policy.   The other three commission members stood by the report without qualification.