Wed,Jul 30,2014 3 Av 5774
If the media is fair, analysts unerring and politicians even-handed, then ‘disproportionate’ is what Israel at war does best. If it must feud with neighbours why be heavy-handed. Tit-for-tat is enough. We’d rather Israel did not engage in ugly cycles of violence, but keep them down. Careful does it. A forty-to-one casualty score is barbarically out of bounds. A Yid with heavy weapons is horrible to behold. One who plays Rambo with them is disgusting beyond words.
Cartoons depicting Israeli acts in the Gaza strip speak to us like this, at times close to those very words. Column writers and news anchors, harping likewise on high tolls, adopt airs only a mite more disguised. Casualty tolls are skewed in favour of a people that deserve worse; considerably worse. Our media as good as utters sentiments of the kind. “The toll is unbalanced. The people of Israel get off too lightly. For justice sake, there should be more of them and fewer Palestinians killed and maimed.” It would seem that Israel critics feel that things are upside down when Jews win wars, big or small, at too low a cost.
The skeptic who may laugh at such infantile nonsense has only to page through cartoons from the time of Israel’s “Operation Cast Lead” in Gaza. Reports and editorials are nearly as explicit. Infantile and ugly connotations attend the word “disproportionate”. Take for example three media men, heavyweight and acclaimed. One is a filmmaker, the second an editor, the third a correspondent and Middle East expert. Two of them have won awards.
Filmmaker John Pilger, declares, "For much of their resistance, the Palestinians have fought back courageously with slingshots."
Political editor John Battersby echoes him, “One side has the most sophisticated American weaponry while the other has stones.”
Correspondent and author Robert Fisk endorses the two, emphatically.
Well then, under oath, let our three heavyweights be interrogated.
1. You will know of the Hebron riots of 1929 when sixty-seven Jews were murdered. Please tell how they were murdered: by slingshots and stones or by weapons?
2. Over the period 1951-55 more than 3,000 attacks were launched against Jewish civilians, resulting in the killing of 922 Israelis and foreign tourists. Please tell how they killed: by slingshots and stones or by weapons?
3. During the ‘Oslo peace’ period 1993-2000, 300 Israelis were killed by Palestinian militants. Please tell how they were killed: by slingshots and stones or by knives, bullets and bombs?
4. During the Second Intifada more than 5,000 Jews were injured and 780 killed. Please tell by what means: slingshots and stones or bullets and bombs?
5. In sum, outside of proper wars in 1948, 1967 and 1973, tens of thousands of Jews were killed or maimed in thousands of attacks. By what means: slings and stones or knives, bullets and bombs?
Slings and stones! How do accomplished men descend to that level? Is it sentimentality – the idea of David and Goliath, with Jews in a Goliath role? No, these are not men on a sentimental trip. There is a degree of angst in their words, like bad losers. They seem to begrudge the ability of Israel to overcome the foe. We get an impression that military Jews are something that ought not to be. And it makes our trio so angry. That downtrodden, bearded, bookish, stateless, wandering people were not meant for juggernauting about. No way could Providence have chosen the Jews for battlefield glory.
The sense-defying ‘Yid’ presents a shocking problem for many. What bitter thoughts are turned on Israel, what sourball gaze at the strutting Goliath, while the masquerading Arab David tries to knock him over with sling and stone. Skip the hand-wringing and protestations, the rebukes and threats, outrage over Israel’s battle conduct amounts to denial of military ‘Yids’.
Warfare, we can agree, is more destructive than other political options. That is in the nature of the beast. Inevitably there will be a tally of dead and injured. That buildings and infrastructure will be destroyed is guaranteed. Cyber warfare could be a marker, but innovation has yet to come up with harmless weaponry. So for now death, injury and damage are the order of the day. The less all three occur the better – clearly. Yet how many seem to think otherwise.
When Israel, and only Israel, happens to be at war, the lower the tally the harsher the verdict passed on that people. More, they are impulsively quick. Hardly has war broken out when verdicts rain upon Israel. The tally is way too low on that side of the fence. Not enough death and destruction, and too much on the other side. Clever people, even legal experts believe or not, adopt this yardstick of right and wrong. If Israelis get off lightly compared to Palestinians, it means another crime for that people to defend.
"Israel’s bombardment of Gaza is not self-defense, it’s a war crime. The rocket attacks on Israel by Hamas, deplorable as they are do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defense. Israel’s (disproportionate) actions amount to aggression, not self-defense."
That was the verdict of law professor Christine Chinkin, from the London School of Economics. And how impulsively she delivered it. The member of the UN-appointed Goldstone team had yet to set foot on dry land (Gaza, if you will) to hear and see for herself what Israel had wreaked. Except from the media, the legal expert had not collected a shred of evidence.
It can go further. A single Palestinian casualty can be regarded as one too many, even when the victim had been a serial instigator and warmonger. How dare the people of Israel play Goliath, while the Palestinian David fights with mere stones!
So much for attitude. In terms of law, grips on reality are not more real. The yardstick applied is all wrong. Laws of war do not compare tallies or weapons. The notion of ‘disproportionate’ is far removed from the above verdicts passed down on Israel. Contrary to what many believe, ideas of morality have nothing to do with it. The very opposite: huge and heavy firepower, with heavy human cost and destruction may well satisfy the concept of ‘disproportional.’ If we are not careful, ‘Just War’ theory can be exploited to justify more force rather than less. Law is a tool which can turn around to bite the innocent.
Michael Walzer, a contributing editor at The New Republic, explains how the law of disproportion works, and how it does not work.
Proportionality doesn't mean ‘tit for tat,’ as in the family feud. The Hatfield’s kill three McCoy’s, so the McCoy’s must kill three Hatfield’s. More than three, and they are breaking the rules of the feud, where proportionality means symmetry. The use of the term is different with regard to war, because war isn't an act of retribution; it isn't a backward-looking activity, and the law of even-Steven doesn't apply.
What then does ‘proportionality’ mean? It requires a measure, and that measure is the value attached to winning a war, or a battle. The value of defeating the Nazis could have been so great that it justified millions of civilian deaths.
Particular acts of war are gauged the same way. If Israel were to bomb a civilian building from where rockets were being fired, killing civilians in the process, any justification would go like this: The civilian tally is not disproportionate to the damage that rockets would cause if nothing were done to stop them. Eventually Hamas might even acquire rockets capable of hitting Tel Aviv. If so, how many civilian casualties would be proportionate to the value of avoiding the rocketing of Tel Aviv?
That still leaves the burning question: what upper limit for civilian casualties would be lawful? How do you set one? Here matters become more speculative than before. We compare damage inflicted by an act of war now to damage that could be inflicted by acts of war later on. This is where ‘Just War’ theory becomes a dangerous tool that must be handled with care.
The problem is that people who scold Israel for disproportionate force, be it in Gaza or the West Bank, do not handle law with care. They throw it around like a child. They don’t make any measured judgment, not even a speculative kind. To people that pass down quick verdicts on Israel, disproportionate simply means attacks they don't like, or attacks by people they don't like.
But worse is to come. In the counting of civilian casualties we haven’t begun to approach the problem. When is a civilian not one? Three boxes hold the answer to this. They’re the boxes that would give opinion-makers the right to shout, ‘Crimes against humanity!’ The boxes require the military to make a distinction between combatants that may be attacked, and civilians that may not, unless and for such time as a civilian directly participates in hostility. And there lies the rub. What is meant by ‘directly participate?’
Before targeting a civilian within the law, Israel must tick three boxes: (1) The target was participating in hostilities; (2) the participation was direct; and (3) the direct participation had not ceased. Stop there. If the target had been holding a weapon, but then put it down, Israel may not shoot at him or her. It must wait until such time as the target again picks up the weapon. Three boxes have to be ticked before firing off a shot in anger. And even then we are not quite ready. ‘Directness of participation’ should not be understood too broadly. Not every activity carried out in war can be construed as an act of hostility. The situation of the victim at the time of being shot decides whether combatant or civilian. Even membership of Hamas would not by itself be sufficient proof that the target fell within the law.
When pundits, fact-finders and rights activists declare that 80% of Israel’s victims were civilians, we know how they conducted the count – or how they should have done. Case by case a compiler must tick three boxes. If one or more is empty it would mean that a civilian had indeed been killed and a war crime committed. Only then is one entitled to pronounce a crime against humanity.
When someone like Noam Chomsky proclaims that Israel commits war crimes we now know what he means. But does the accuser? Somewhere, an Israeli soldier would have failed to tick all three boxes prior to killing a Palestinian. Listen in to the International Criminal Tribunal for Yugoslavia. “Whether a person (is a combatant) has to be determined on a case-by-case basis.”
After everything we begin to picture war as an honorable sport – calculable, predictable, and leisurely. All of which prompts a question of exquisite bluntness. Where or when are these exacting standards applied and expected? If the answer comes, only when Israel conducts war, we may rightfully accuse the accusers of malice and bias. And after all is said and done, picking on the people of Israel for who they are, not for what they supposedly did, amounts to – we know very well what.