Month: January 2009

A new poll in Alaska on a possible Senate race. Know hope.

Law blogger Kevin Heller considers proportionality as defined by the UN charter:

Proportionality is not measured by comparing the number of Israeli civilians killed by Hamas attacks to the number of Hamas “terrorists” killed by Israeli attacks; it is determined by comparing the number of Palestinian civilians killed by a specific Israeli attack relative to the military advantage gained by that attack.  As Article 51(5) of the First Additional Protocol says, an attack is indiscriminate — and thus prohibited by IHL — if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”  Article 8(2)(b)(iv) of the Rome Statute is worded similarly, although it requires the incidental damage be “clearly excessive,” not just “excessive.” Whether an Israeli attack is disproportionate, therefore, is completely independent of the lethality of Hamas’s attacks. The proportionality analysis is the same if Hamas’s attacks kill one Israeli civilian or 1,000. In either case, IHL obligates Israel to respond only with attacks that, on their own merits, are proportionate.

Noah Pollak takes this to the following conclusion:

This is where Andrew’s critique conspicuously runs aground, and for a very simple reason: Hamas is still firing rockets; ipso facto, Israel is not using excessive force.

Heller helps and makes an important point about the core relationship between means and ends. Noah, I think, goes too far in suggesting that a single Hamas rocket in what would now be self-defense justifies anything further the Israelis want to do. I agree with Ross that seeing no just war distinction between unintended but still unavoidable civilian casualties and the wanton terrorism of Hamas makes just war theory untenable in the modern world. The just war question here might therefore be better honed in the following way: does the massively one-sided violence of the past 11 days offer a chance for a real peace that could justify the death and trauma we are watching? As Ross and others have pointed out, this is, at this present moment, unknowable. But from a moral perspective, I think I should adjust my take a little and concede that you could make a weak but real case for the morality of the Israeli attack if it really changed the situation into one that made peace possible. I guess that’s my problem. I don’t see, frankly, how another ever-more brutal crushing will achieve the goal Israel seeks. The familiar points about who would inherit Gaza from Hamas still operate. But the deeper point, made very well by Bob Kaplan, is that Hamas’ real advantage is not military; it’s ideological. Sometimes, in these asymmetric cases, clearly excessive military action can strengthen the ideological power of the enemy and actually make peace more, rather than less, distant.

To put it bluntly: dead Palestinian children, we can all agree, do not help Israel, even if you were to ascribe moral responsibility for every single one to Hamas.

And in the regional context, the way in which these deaths are understood and portrayed can ultimately outweigh any short-term advantage Israel may get. That’s why, I suspect, the Israelis and the Egyptians are taking this to new heights of violence every day. As the toll grows, the more necessary it is to achieve a more complete military victory in order to compensate for what is shaping up to be a defeat in the global war of ideology. So more violence from Israel and Egypt (all funded in large part by American tax-payers) directed at Hamas is to be expected to make the attack more morally justified. This can become a game of one-upmanship over a pile of corpses if you are not very careful.

So objectively, I think a case for the morality of this assault can be made, and not without reason. It’s a stretch, though, and only possible by allowing for the unique circumstances of an apocalyptic, tribal and religious conflict in an era long after just war theory emerged. Subjectively, of course, we cannot know the deepest motives of the Israeli leaders (and we can safely dismiss the subjective moral consciences of Hamas leaders). If the Israeli pols are doing this to win an election, or to demonstrate a "don’t fuck with the Jews" bravado, it’s clearly unjust. If they’re doing it because they honestly think it is the best way to advance peace, their consciences, while troubled, may be clear.

I hope and suspect the latter is paramount (although these are politicians in muddy, bloody terrain). And I pray that peace will be advanced by this horror. But that’s a prayer, not a prediction.

(Photo: Israeli mourners comfort each others during the funeral procession of 32-year-old Israeli army Major Dagan Vertman at the Mt. Hertzel Military cemetery in Jerusalem on January 6, 2009. Seven Israeli soldiers have now been killed since the December 27 launch of Operation Cast Lead which aims to halt Hamas rocket attacks from Gaza. Eighty-three have been wounded. By Tali Gibbon/Getty.)

Obama talks briefly about events in Gaza:

The loss of civilian life in Gaza and in Israel is a source of deep concern to me, and after January 20th I’ll have plenty to say about the issue.

Eugene Volokh finds an old law still in use.

Procrastination from TutoxNet on Vimeo.

Michael Weiss makes the case that Hamas isn’t just a threat to Jews:

One has heard about the cult of death that underwrites Islamic attentats, and it would certainly not strike most Western ears as newsworthy that Hamas is a fundamentally anti-Semitic movement. But that it is openly dedicated to the "annihilation of America" should hit home with sympathizers and apologists, eager to invoke sinister and histrionic moral equivalences between the current Israeli incursion into Gaza and 9/11, and eager to view Hamas as pledged to little more than national "resistance," albeit draped in colorful religious garb. If anything, Hamas’ anti-American sentiments reflect Iran’s supervisory role as both the party’s main financier and as its imperial guardian in an ideological war that extends well beyond the borders of the modern Levant.

"All nationalists have the power of not seeing resemblances between similar sets of facts. A British Tory will defend self-determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage — torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians — which does not change its moral colour when it is committed by ‘our’ side … The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them" — George Orwell. M.J. Rosenberg applies this quote to Gaza, but it also reminds one of events in the US these last eight years.

Joe Klein fisks Kristol:

In the end, Kristol’s saber-rattling is the death rattle of a simplistic, extremist ideology that has caused the U.S. great damage. A more sensible, centrist approach to international affairs won’t have the bang or melodrama of military kinetics. It will take time to work, if it works. But it also won’t have the bloodshed and torture that have stained our nation’s history these past eight years.

The longer I observe the neocons the more I realize that for many of them, war is a natural state of being, even a vocation. Some actually view a martial society as more noble than a peaceful one, and believe in war as both morally good and socially beneficial. I am much more interested in conservatism as a temperament that recoils from violence, rather than being attracted to it. And while I see war as a necessary evil, I have been forced by the Iraq debacle into a much better grasp of its limits and its potential for catastrophe. Others seem emboldened by an occupation they are now declaring a "success."

Or any other creature with a spidey sense:

Your video of Terry McAuliffe just popped up in my Google Reader.  My dog is laying behind my chair.  As soon as I started the video, Charlie (a hound mutt from the shelter) started growling at my computer.  I’ve never seen him do that before.  I’ve always been kinda blasé about Terry, but I think my dog just judged him better than I ever could have. As soon as I turned off the video, he stopped growling.

Bret Stephens proposes:

For every single rocket that falls randomly on Israeli soil, an Israeli missile will hit a carefully selected target in Gaza. Focusing the minds of Hamas on this type of "proportionality" is just the endgame that Israel needs.

How is that an "endgame" exactly? Isn’t it actually a formula for the war never ending?