Further Exchange on Kasher

1. http://basmanroselaw.blogspot.com/2010/02/exchange-on-kasher.html



2. me:




SMacEachern2


No doubt we start from radically different premises that inexorably will lead us to irreconcilable conclusions on these issues, but let me deal with your arguments regardless.


Firstly, different from you I found the section you quoted consistent, without contradiction and straightforwardly sensible.


Secondly I don’t grant your test for judging effective warnings. One can think of practical ways warnings might be dispensed—leaflets, radio warnings, time lags between such dissemination and the start of military activities, and so on—but we’d need to separate those warnings from the population’s response to them. If for any number of reasons—including, I don’t know, countermand and pressures fro Hamas—then I say Israel in its dissemination acquitted itself. If the test was as you suggest, then Hamas could prevail of the regular population to stay put and then malign Israel’s failure to warn. Also the logical absurd conclusion of your test is Israeli military impotence in the face of a population that won’t heed the warnings it gets.


Thirdly, let’s unpack some the realities on the ground. Israel does not control Gaza. Hamas refuses to heed the visible distinguishing between combatant and non combatant. Worse, it insinuates itself amidst the civilian population to take advantage of enlightened Israeli sensitivity about wanting to minimize civilian wounding and death. And still worse, it then launches its rocket attacks under the hoped for protection of a civilian shield. Assuming after some point and some number of rockets, Israel has to act in own self defense, what is it to do and what harm is it supposed to expose its soldiers to in response to Hamas’s tactics?


Once effective warning is given—something, I argue, to be tested empirically by the actuality of the warnings, not the actual dispersal the warnings lead to, I agree with Kasher and Yadlin and Halbertal, over Walzer and Margalit, that Israel, no state in fact, need to expose its soldiers to the danger of boots on the ground assurance that no civilians are afoot before military action begins. And on this basis, I agree with the assessment of and assignment of moral blame for Palestinian casualty on Hamas.


Fourthly, you are way too binary when you say “This means that Israel would simply give up on trying to avoid civilian deaths in any extra-territorial military action.” Respectfully, that comes nowhere near to following and elides measures taken to minimize civilian casualty. Those measures include pre action intelligence meant to ensure isolating militarily necessary targets, effective warnings, and tailored strikes. (Both Halbertal and Kasher note the fact of lower civilian to military death ratios in Lead Cast compared to any recent asymmetric campaign and the dearth of outcry against other warring nations than Israel.)


If the above, and Kasher’s analysis be moral bankruptcy, I had better book an appointment with my moral trustee. But really I don’t think so.


Finally, for myself, I would not, in wanting to criticize Kasher, impugn his motives. Rather I’d try to deal with his arguments on the merits, which I have read you in the main to do, though by my lights, unpersuasively.



3. SMacEachern2:




basman: "One can think of practical ways warnings might be dispensed...but we’d need to separate those warnings from the population’s response to them."


Exactly. But that implies a continuing attention to means and attentions. As far as I can see, Kasher is arguing that as long as warnings are dispensed, Israel need not afterward expend energy trying to distinguish combatants from non-combatants. 'The lives of the troops come first' which, given pieces like that Haaretz story, means shoot first, ask questions later. From that article, "Instead of using intelligence to identify a terrorist," he told the British daily, "here you do the opposite: first you take him down, then you look into it."


The problem with that is that effectiveness is judged a priori: "Yeah, leaflets are effective" or "Yeah, phone calls are effective." But you are going to find civilians that are unable/afraid to move, for various reasons. Kasher's argument is that basically you don't have to worry about distinguishing combatants from non-combatants after that initial warning. And yes, that to me is morally bankrupt. I am not making the claim that the presence of civilians need render the IDF impotent - just that the laws of war (which Kasher is dramatically reformulating) need to be followed.


Israel is supposed to put its soldiers in harm's way for the benefit of Gazan non-combatants just in the same way that other countries do. My brother is now a major in the Canadian Forces. While he was in Afghanistan, there was a tightening up of RoEs there, requiring more efforts to distinguish between civilians and Taliban and to minimise civilian casualties. Did this increase the danger to my brother and other troops? In the short term, quite possibly yes, because they had to be more discriminating about how and when to use heavier weapons and call in fire support.



However (a) this probably lowers risks to them over the longer term and (b) it was the right thing to do - there were too many non-combatants being killed in fighting in Afghanistan.
No one is demanding that the IDF assure themselves that no non-combatants are on the ground before an operation commences. But Kasher is arguing that it is not necessary to distinguish between combatants and non-combatants after 'effective warning' (whatever that is) goes out.


You're quite right that the IDF takes measures to reduce civilian casualties. But as I said, _Kasher's_ distinction between 'trigger-happiness' and 'non-trigger-happiness' is also too binary: the question is, what are the effects of specific policies, and specific decisions by commanders? You folks may hate the Goldstone Report, but there is evidence from Gaza (and earlier from southern Lebanon) of policies put in place that are at odds with measures to reduce civilian casualties. Recognising that doesn't make the IDF in Gaza Russia in Grozny, but it does have to be addressed. And I have a pretty good memory of substantial criticism of American conduct in Fallujah, and for that matter of Russian conduct in Grozny.



4. Me:




SMacEachern2:


Firstly, I don’t think there is any warrant for concluding that “Kasher is arguing that as long as warnings are dispensed, Israel need not afterward expend energy trying to distinguish combatants from non-combatants.” Such a position is mechanical and isn’t a fair reading of the argument. In fact, respectfully, it misconceives the issue. Nothing crowds out doing things after giving effective warnings—to be judged as I say from the earnings themselves. But the issue precisely is: what is the extent of what Israel needs to do? This is the issue Halbertal, Margalit, Walzer, Kasher and Yadlin— others— have been agonizing over. It admits of no easy answer.


The problem with the argument you mount, as I see it , is that you start with a conclusion and only then reason back to to the propositions you want to argue. You start with Palestinian civilian casualty and civilian infrastructure damage and then pedal back to your indictment, setting up an impossible test for effective warnings along the way, and ignoring, as I noted, how favorably Israeli civilian to military kill ratios stack up against other recent asymmetric campaigns.


Secondly, it’s a thin reading of Kasher and it’s thin polemics to wave around the slogan “the troops come first” as dispositive of anything. Wars involve troops; troops will get killed and wounded. I have no doubt—no doubt, though admittedly I’m presuming—that compared to other warring nations Israel’s measures at the expense of its troops to keep down civilian casualty in the context of asymmetric war stands well. If you can cite me warring countries who put Israel to shame in this regard, I’d be open, of course, to considering that.


But to return to a theme in my first paragraph: the issue isn’t either or—warn first and then we don’t worry anymore; or “the troops come first” and then we don’t worry anymore.” My understanding is that is that just as Israel is an enlightened liberal nation, imperfect to be sure, and beleaguered to be sure as well, grapples in good faith with balancing how much danger should she expose her soldiers to in the effort to minimize casualty against an enemy which is indifferent to civilian casualty and in fact gets political mileage out of it.



Different from you, I don’t see these efforts, which Kasher and Yadlin exemplify, as after ( or pre) thought rationalization but rather as good faith efforts to deal with these troubled issues.


Thirdly, I offer you this challenge, assuming we can agree on a few predicates: applying just war theory to asymmetric war in the case of Israel in Gaza: my position is that Israel acquits itself. I’d like to see the opposite case, based not on rhetoric or middle excluding or circular arguments, but rather a good faith argument that considers other nations and compares Israel’s record to them but in a way that apples meet apples.


For example, is it really apt to compare Israeli efforts in Lead Cast with COIN in Afghanistan? COIN necessarily involves a bottoms up combination of soft and hard power. Matters go from an outward expanding base of “clear and hold” to along the way changing winning hearts and minds of locals against hard core Taliban.


Fifthly,and forgive the repetition, this is what in Kasher and others you must deal with:


1. (Kasher)…His state ought to have a compelling reason for jeopardizing his life. The fact that persons involved in terrorism are depicted as non-combatants and that they reside and act in the vicinity of persons not involved in terrorism is not a reason for jeopardizing the combatant's life more than is required under combat conditions…


2. (Kasher)…There is no army in the world that will endanger its soldiers in order to avoid hitting the warned neighbors of an enemy or terrorist…


3. (Kasher)…. Israel should favor the lives of its own soldiers over the lives of the well-warned neighbors of a terrorist when it is operating in a territory that it does not effectively control, because in such territories it does not bear the moral responsibility for properly separating between dangerous individuals and harmless ones….


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


5. (Halbertal)… In line with such principles, the Israeli Air Force developed the following tactic. Since Hamas hides its headquarters and ammunition storage facilities inside civilian residential areas, the Israeli army calls the residents’ telephones or cell phones, asking them to move immediately out of the house because an attack is imminent. But Hamas, in reaction to such calls, brings the innocent residents up to the roof, so as to protect the target from an attack, knowing that, as a rule, the Israeli army films the target with an unmanned drone and will avoid attacking the civilians on the roof. In response to this tactic, Israel developed a missile that hits the roof without causing any actual harm in order to show the seriousness of its intention. The procedure, called “roof-knocking,” causes the civilians to move away before the deadly attack…


and one more:


6. (Halbertal) … There are different accounts of the numbers of civilian deaths in Gaza, and of the ratio between civilian and militant deaths. B’Tselem, the reliable Israeli human rights organization, carefully examined names and lists of people who were killed and came up with the following ratio: Out of the 1,387 people killed in Gaza, for every militant that was killed, three civilians were killed. This ratio--1:3--holds if you include the police force among the civilians; but if you consider the police force as combatants, the ratio comes out to 2:3. There are 1.5 million people in Gaza and around 10,000 Hamas militants, so the ratio of militants to civilians is 1:150.

If Israel targeted civilians intentionally, how on earth did it reduce such a ratio to 1:3 or 2:3?


The commission never asks that question, or an even more obvious one. In operating under such conditions--Gaza is an extremely densely populated area--is such a ratio a sign of reckless shooting and targeting? One way to think about this is to compare it with what other civilized armies achieve in the same sort of warfare.



I do not have the exact numbers of the ratio of civilian to militant deaths in NATO’s war in Afghanistan, but I doubt that it has achieved such a ratio. Is it ten civilians to one combatant, or maybe 20 civilians to one combatant? From various accounts in the press, it certainly seems worse. The number of collateral deaths that are reported concerning the campaign to kill Baitullah Mehsud, one of the main Pakistani militant operatives, is also alarming: In 16 missile strikes in the various failed attempts at killing him, and in the one that eventually killed him (at his father-in-law’s house, in the company of his family), between 207 and 321 people were killed. If such were the numbers in Israel in a case of targeted killing, its press and even its public opinion would have been in an uproar.


Besides the 500 civilians who were killed in the bombing of Serbia, how many militants were killed? The inaccurate high-altitude bombings in Serbia, carried out in a manner so as to protect NATO pilots, caused mainly civilian deaths. What would have been the ratio of deaths if NATO forces were fighting not in faraway Afghanistan, but while protecting European citizens from ongoing shelling next to its borders? And there are still more chilling comparisons.



If accurate numbers were available from the wars by Russia in Chechnya, the ratio would have been far more devastating to the civilian population. Needless to say, the behavior of the Russian army in Chechnya should hardly serve as a standard for moral scrupulousness--but I cannot avoid adducing this example after reading that Russia voted in the United Nations for the adoption of the U.N. report on Gaza. (The other human rights luminaries who voted for the Goldstone Report include China and Pakistan.) So what would be a justified proportionality? The Goldstone Report never says. But we may safely conclude that, if the legal and moral standard is current European and American behavior in war, then Israel has done pretty well…