Friday, November 6, 2009

Basman on Walzer, Margalit, Yadlin and Kasher

I read Walzer's essay--—and I liked it very much.

It’s illuminating to compare and contrast this essay with his essay co-authored with Avishai Margalit-- I think the essays can be read together and complement each other, the former, as I say, illuminating the latter.

In the latter essay the issue is:

"What priority should be given to the duty to minimize casualties among the combatants of the state when they are engaged in combat...against terror?"

in the context of terrorists who embed themselves amongst civilians.

They cite the argument of Asa Kasher and Amos Yadlin that:

"Where the state does not have effective control of the vicinity, it does not have to shoulder responsibility for the fact that persons who are involved in terror operate in the vicinity of persons who are not."

Margalit and Walzer restate the argument after jettisoning any distinctions between terrorists and combatants (by assimilating both to the stipulation that the war is just) thusly:
"Kasher and Yadlin are simply assuming that the war against the enemy is a just war. Their claim, crudely put, is that in such a war the safety of 'our' soldiers takes precedence over the safety of 'their' civilians."

They attack this reframed claim on a number of grounds. Here are some of them:

1. It elides differences between combatants and non combatants—crucial to just war theory;

2. It erodes therefore the limits set by just war theory even in the context of a just war on the distinction between a just war and its just or unjust conduct;

3. Doing so is the imitation of terrorism even when terrorists are the enemy;

4. Hamas and Hezbollah are accountable when they make civilians the primary targets of their attack—and also when they deliberately use civilians as human shields. But neither of these crimes allows their enemies to give up their own obligation to avoid or minimize civilian injuries and deaths.

5. An understandable but morally misguided sentiment creeps into the Kasher-Yadlin paper when they write: "A combatant is a citizen in uniform"—so as to convince us that we should not ask our soldiers to take risks to save the lives of noncombatants on the other side.

6. Israel is morally required to behave towards non combatants in all those cases the way it would behave in the when—according to an example they construct— its citizens are held by Hezbollah in a “mixed vicinity”. Which is to say, as they say: “Whatever Israel deems acceptable as ‘collateral damage’ when its own captured citizens are at risk—that should be the moral limit in the other cases too.”

7. “Israel’s soldiers must, by contrast with its enemies, intend not to kill civilians, and that active intention can be made manifest only through the risks the soldiers themselves accept in order to reduce the risks to civilians.”

Walzer and Margalit quote Yadlin and Kasher as saying, “…that ‘jeopardizing combatants rather than bystanders during a military act against a terrorist would mean shouldering responsibility for the mixed nature of the vicinity for *no reason* at all.’” Their rejoinder to this argument is that “no reason” obviates the moral and legal requirement carefully to attempt to minimize civilian casualties in the circumstances, a point stressed emphatically by Walzer in his essay on “Proportionality and Responsibility”. It’s been a while since I considered the translated essay by Yadlin and Kasher, but if memory serves me correctly, Margalit and Walzer are overstating the others’ argument. For surely this is hyperbole:

“If there is "no reason" for responsibility of this sort, if the lives of "our" soldiers really take priority over "their" civilians, then why couldn't the soldiers use those civilians as shields? Since they have not created the "mixed vicinity," why can't they in turn take advantage of it? We don't see how Kasher and Yadlin can avoid providing justification for a practice that Israel officially condemns and that we believe they believe is despicable: the use of noncombatants as human shields for combatants.”

I’d suggest, contrary to Margalit and Walzer, that Yadlin’s and Kasher’s argument is in fact consistent with the claim in Walzer’s proportionality essay that the stricture in just war theory against killing civilians cannot morph into a functional equivalent to pacifism. It is inconceivable that Kasher and Yadlin are arguing for the unmeasured killing of civilians in order to save the lives of Israeli soldiers.

Rather they are addressing, I’d argue, the inevitable fact of civilian death in “mixed vicinities” controlled by the terrorists and arguing for a functional limit on Israeli soldiers’ deaths in such vicinities even if that means increased collateral damage. A clear example of this would be aerial bombardment as against boots on the ground in certain situations and under certain conditions.

My contention, is on this reading of Yadlin and Kasher, is that they are consistent with in principle with the Walzer of the proportionality essay. (A corollary of this is that if Walzer is consistent in both of his essays, then they are all ad idem in principle throughout.) In a nutshell, Yadlin and Kasher are exploring the requirements and contours of the carefulness and responsibility that Walzer argues for in his own essay—to repeat, the necessary weighing of the extent to which Israeli soldiers must sacrifice their lives to protect civilians in mixed vicinities that they do not control.

For as Walzer writes in his own essay:

“It is a central principle of just war theory that the self-defense of a people or a country cannot be made morally impossible, and so the more successful Hezbollah and Hamas are in hiding among civilians, the less useful the proportionality argument is—or,to be more precise, the less limiting it is.”

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