The Evil and the Foolish

Though my own posts haven’t been bad, I think the folks over at Lawyers, Guns, and Money have probably the best package of coverage regarding Israel’s latest operation in Gaza. One of the things I think they’ve done effectively is avoid some of the easy traps that obscure efforts to actually evaluate what Israel’s doing.

Trap #1, emanating from the left, is the “disproportionality” argument. In international law, disproportionality is a term of art: It does not instill an obligation to match your foe only rocket for rocket. Proportionality is not measured against the precipitating action of the enemy which sparked the conflict, it’s measured against the military objective the state is attempting to achieve.

In the current situation, Israel responded to steady rocket fire from Gaza with a punishing air assault aimed at destroying the political and military leadership and manpower of Hamas. This is a legitimate military objective, albeit one clearly more far-reaching than Hamas’ rocket fire. Nonetheless, so long as long as the military strikes are proportionate to the goal of the operation, proportionality is not breached. Most sources I’ve read indicate that Israel has done a stellar job in this instance minimizing civilian casualties — most of the Gazans killed have been Hamas soldiers, policemen, or leaders. The attack was wide-ranging, but so was the mission. This is not a failure of proportionality, as the term is understood in international law. Of course, the technical legal definition of “proportionality” has nothing whatsoever to do with whether, all things considered, Israel’s behavior is wise here. But the proportionality argument is mostly being deployed not as a strategic argument but a moral one — attempting to allege Israel is a lawbreaker here. And that just isn’t right.

Trap #2, flowing out of the right, is the “what does everyone else do?” argument. Most nations facing a persistent mid- to high-grade insurgency react with far more bloodlust than Israel is showing right now (Russia in Chechnya is the typical example). The story often is cast more personally — how would the US respond to Mexican rockets falling on El Paso?

This obscures for the same reason the first trap does: it argues along the axis of why Israel shouldn’t be seen as an evildoer, by comparing to other nation’s facing the same dilemma. But this misses the point. The proper frame for looking at Israel’s response isn’t whether, in some cosmic sense, it is “justified” in attacking Gaza this way. The proper frame is asking “is this attack going to accomplish anything?” LGM’s own military expert, Robert Farley, gives four reasons to be skeptical that anything good will come out of Israel’s operation, while nonetheless noting that the operation itself has been quite discriminating and has done a good job minimizing civilian casualties. His arguments — particularly the problems with “sending a message” — make sense to me. We might still understand why the government is behaving “as expected”, and we might affirm that, in terms of moral judgment, we shouldn’t hold Israel morally liable for a super-obligation where other countries are given relatively free passes. But none of that requires us to answer in the affirmative the remaining (and to my mind, far more important question): Is Israel’s response a smart one?

Unfortunately, for a variety of reasons the contemporary discourse surrounding Israel/Palestine seems stuck on debating “right and wrong”, instead “smart or stupid”. Anti-Israel speakers are unsatisfied with the idea that the state is merely behaving unwisely — they are insistent that it is a qualitatively evil regime that must be treated as such, even when such demands make it concretely less likely for the Palestinian people to receive their just due. Pro-Israel writers, responding to such rhetoric, devote their time to defending the moral appropriateness of any Israeli action, to the exclusion of any long-term considerations about whether it ends up helping or harming Israeli interests (not to mention the interests of a lasting peace and liberation of the Palestinian people from occupation). This is why I’m such a fan of J Street: They call for Israel to ceasefire, not because Kadima is now the Middle East’s version of the Nazi Party — but because, based on their considered judgment, they don’t think that the operation actually gives Israel anything of substantial, long-term value, and instead simply entrenches the never-ending cycle of tit-for-tat that hasn’t gotten anywhere for decades.

As I mentioned previously, the question of whether Israel is behaving unwisely wisely in this particular case is one that I am not qualified to answer (though Farley is, and he answers “no”). But the point is that restricting the field to merely “who is in the right”, rather than stepping up to the plate and saying “what actions should Israel, Palestine, and every other relevant party take to the current situation that best advances its security interests, the prospects of permanent peace, and justice for the Israeli and Palestinian actors”, is a discourse that doesn’t actually help anyone. So what I’d like to see — from America and from everyone else — is a commitment to cool it with the moral hyperbolics which don’t accomplish anything, and focus on what matters: the reasonable, concrete policy moves both sides can do to advance the cause of peace and justice.

Cross-posted to The Debate Link

  

8 Comments

  1. excellent think piece DS. I liked this particularly: “contemporary discourse surrounding Israel/Palestine seems stuck on debating “right and wrong”, instead “smart or stupid”.”

    agreed, and the first principle of arbitration

    dr.e

  2. Yes, you've done a good job.

    However, I think you've misstated the definition of proportionality a little. Here's what you wrote:

    Proportionality is not measured against the precipitating action of the enemy which sparked the conflict, it’s measured against the military objective the state is attempting to achieve.

    In the current situation, Israel responded to steady rocket fire from Gaza with a punishing air assault aimed at destroying the political and military leadership and manpower of Hamas. This is a legitimate military objective, albeit one clearly more far-reaching than Hamas’ rocket fire. Nonetheless, so long as long as the military strikes are proportionate to the goal of the operation, proportionality is not breached. Most sources I’ve read indicate that Israel has done a stellar job in this instance minimizing civilian casualties — most of the Gazans killed have been Hamas soldiers, policemen, or leaders.

    The way our military deals with this particular issue is that the value of the military target is weighed against the likelihood and scale of civilian casualties. You can't level a city because the city includes a government office even if the government office is a legitimate military target.

    The Israelis' problem is that aerial bombardment isn't the only means available to them; it's just the means available to them that will produce the fewest military casualties on their part.

    I genuinely believe that the Israelis are taking as much care as possible to conduct their bombardment with as few civilian casualties as possible and so far I think that's been the case. However, their tactic has a time limit. The Israelis can't bomb indefinitely without it becoming disproportional use of force.

  3. I concur w/ archangel, above. An excellent piece; just what I hope for when I come to the ModerateVoice.

    However, so saying, a quibble:

    While I am aware of “proportionality” as a term of art in Int'l Law, most of the reaction from the “left” regarding the “disproportionate” “reaction” of Israel is an ethical/moral reaction, not a legal one. While it's true that the air strikes in Gaza may not be “disproportionate” under the U.N. Charter, Geneva Codes, or other relevant “Laws of War”[1], most people are not reacting to any technical violation of international law.

    Rather, people are reacting to the common definition of “disproportionate,” wherein the rocket strikes caused relatively[2] little casualties while the Israeli military actions have killed several hundred people. How many of the dead are legitimate military targets (i.e., “Hamas” members[3]) and how many are categorically civilians is somewhat beside the point: it is certain that there have been more innocent deaths from the air raids than from the rocket attacks. That is what appears terribly disproportionate to many people, and should be acknowledged as a legitimate concern. If Israel insists on defining the current military strikes as an immediate reaction to Hamas' rocket attacks on civilian targets, you can only expect observers to weigh the two sides by that measure.

    [1] There is, of course, a principled debate about Israel's obligations under such laws, re: civilian reprisals, occupation, blockading, etc., but that's a whole other topic of discussion. Volokh and Balkin can spar on that one.
    [2] Relative to, say, the fatalities during the last Infitada, or the Hezbollah attacks and subsequent Lebanon Invasion, or any given week in Iraq, etc.
    [3] Ignoring the question of who is a “member of Hamas” in actuality, which is a thorny subject to say the least.

  4. You're giving two viewpoints on the same side of the argument.

    What about the notion that Israel is an occupying power? American leaders, pundits, and reporters alike are afraid of even mentioning that. Israel is responding to an uprising in occupied territory, it's that simple.

    The right answer is to stop the occupation and restore freedom to those territories. If this were any country OTHER THAN Israel, that's what America would be demanding.

  5. If this were any country OTHER THAN Israel, that's what America would be demanding.

    Au contraire. See, e.g., Somalia.

  6. Somalia is an utter train wreck, anarchy personified. The two situations are completely different.

    I do suppose I should modify that sentence to say “if this were any country other than Israel, that's what America would be demanding, if in fact we cared at all.”

  7. I should have said “if this were any country other than Israel, that's what America would be demanding, assuming we cared at all.”

    Of course, Somalia is a total train wreck, anarchy personified. Different situation entirely

  8. The two situations are completely different.

    I know, I know. I was being unneccessarily snarky (but the “occupation” comparison still stands, as a pure theoretical concept). But I appreciate your modification of your statement very much.

    It is very important to note that “we” (i.e., American citizens, assumedly) have an almost obsessive connection with Israel, while virtually ignoring vast swathes of equally distressing situations (Congo, anyone?).

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