Reasons 5&6: The Rule of Law and Israel

Ten Reasons Why I Will NOT vote for Bernie Sanders:

Part III Reasons 5 and 6 – The Rule of Law and Israel

by

Howard Adelman

Thus far I have pointed to Bernie’s ill targeted criticism of the major banks, his protectionist trade policies, his weak position on gun control and, most extensively, on his incoherent policies and performance on economic immigration, deportation, family reunification, the diversity visa lobby and, most importantly, his hesitancy and modesty in dealing with Syrian refugees. I could have spent much more time on the inadequacies and incoherence of his migration policies. For example, how could he:

  • Grant amnesty to illegal aliens but vote against bills to do just that only because they include no provisions against guest workers
  • Extend asylum to victims of domestic violence but not significantly increase the intake of Syrian refugee victims of state, rebel and terrorist violence
  • Expand the grounds for refugee claims by including victims of gang violence and include the credible fear standard for making an asylum claim while not recognizing victims of a different type of gang violence and credible fear when it comes to Syrian refugees
  • How can he enlarge the room for refugee claimants who can manage to get to the United States but keep resettlement of refugees at a minimal level so that the combination results in enhanced incentives for smuggling operations and illegal entry?
  • Oppose chain migration but support expanded family reunification
  • Supposedly support the high tech business sector but oppose their ability to import necessary skills and increase the pressure to relocate overseas while denouncing the out-migration of such firms
  • Oppose the visa lottery program but defend it in a speech in November 2015 “The Diversity Visa program is an enormous and inexpensive source of goodwill, affords potential immigrants with no family ties an opportunity to join our great nation, and is particularly important to African immigrants.”

I could go on, but I want to now focus on two additional reasons and complete the reasoning tomorrow, erring of necessity on the side of brevity because the New York primary is tomorrow.

Reason Five – The Rule of Law

Other than referencing Hillary Clinton’s legal problems with her use of emails when she was Secretary of State or Bernie Sanders’ legal challenge (successful) to enfranchise 17-year-old voters in the Ohio primary who will be 18 on election day, very little has been said about the rule of law, the system of laws and regulations that are the bedrock of a constitutional democracy and that apply universally to the wealthy and the poor, those in power and those who lack power, those in positions of formal authority and the vast majority who are not. As the saying goes, in a rule of law polity, the rules apply to the rulers as well as the ruled. This is true not only in the application of the law but in its creation. While Barack Obama was extremely cautious and modest in his use of executive powers to make law, what has become clear in Bernie Sanders’ campaign is that he would rely far more on the use of executive orders to override legislators.

This is a practice that was prevalent in both Venezuela and Brazil. The reality is that strong proponents of economic justice who blame rich economic elites for a country’s problems tend to see economic justice as trumping legal justice and procedures. Further, the more economic incentives and subsidies expand, whether on behalf of corporate interests or the needy, there is an increase in bureaucratic power. Though a strong and independent creative civil service is an essential component in a modern state, something the political right is blind to, it is also the case that  bureaucrats are susceptible to being corrupted by the economic inducements of the rich and powerful, to which Bernie is legitimately ultra-sensitive in the United States, but also to those who gain political power and envision enhanced control over different segments of the economic sector as the entry to greater economic and social justice, an entry point to undermining the rule of law and enhancing the power of individuals, including the President, and groups, a susceptibility to which Bernie seems insensitive.

Perhaps even more, but certainly as much, modern states need an honest, capable and efficient administrative apparatus, which attacks on government per se undermine. That civil service, and it is a service that must both remain civil and serve the universal interests of civil society, must retain a realm of initiative and independence to ensure the polity remains immune to both economic and crusading political predators. Unfortunately, there is a built-in tension between demands for the state to build the necessary infrastructure, provide the necessary services and incentivize both economic engines and individuals, as opposed to the temptation to turn these mechanisms into convoluted traps for inaction or, on the other hand, units for dispensing patronage and favouritism. Good government needs to walk that fine line between the Scylla of sclerosis and Charybdis of indulgences. From many of Bernie’s statements, one fears that he would remove the blindfold of justice and sail the ship of state into the rocks on either side of the straights as he attempts to maneuver the ship of state through the foaming waters of an unruly social environment.

  1. Israel

I could write on a number of political areas of foreign policy, such as Libya on which I have written a number of blogs, but I have chosen Israel because it is an arena I know well. Further, I have chosen to focus specifically on the degree to which Israel fights its wars in accordance with the norms of just war, an area on which I claim some expertise.  In the contemporary period, Israel generally and just war analysis more particularly has proven to be the Achilles’ heel of the Left. Bernie is the exemplification of the propensity of even the moderate Left, and Bernie is a card-carrying member of the moderate Left, to misunderstand and misrepresent Israel, a propensity exacerbated by a right in America which serves as a cheerleader of the Likud in Israel and is almost blind and deaf to the rights of Palestinians for self-determination.

In the corrected version of his original infamous editorial board interview, Bernie said, “I do believe that Israel…has every right to destroy terrorism. But in Gaza there were 10,000 wounded civilians and 1,500 killed. Was that a disproportionate attack? The answer is it was. As somebody who is 100% pro-Israel. In the long run, if we are ever going to bring peace… we are going to have to treat the Palestinian people with respect and dignity.”

In the reference to the cry about the numbers, he did originally say that, “my recollection is over 10,000 innocent people were killed in Gaza,” but soon corrected that to say 10,000 civilians had been wounded. So the outcry that there were only 1,400 or 1,600 killed according to even UN or Palestinian figures is beside the point. The real issue is that he referred to all the dead as “civilians.” Israel says there were only about 700 of the total of 2,130 killed. The UN and the Palestinians double the proportion of civilians killed. The reasons are clear. Youngsters under the age of sixteen are recruited by Hamas to serve in auxiliary positions as observers, runners, etc. When they die, they are counted as civilians. So are policemen who have a military role in Gaza. And since they do not wear uniforms, many militants can also be counted as civilians.

But the controversy over figures is both a distraction and an indicator. For the real issue is whether Israel’s response to the Hamas rocket attacks was disproportionate. Bernie on this point is dogmatic. “It was.” For him it is self-evident. Since there was wide-scale destruction, including destruction of apartment buildings and even hospitals, for Bernie it follows logically that the Israeli response, however much Bernie finds such a response in itself to be legitimate, is self-evidently disproportionate.

However, in the application of rules of just war and its conduct, a military action is disproportionate if excessive force is used to achieve a military goal. A military action is disproportionate if civilians and civilian facilities are attacked indiscriminately. The issue is not the quantity of destruction, but the procedures and mechanisms for minimizing civilian destruction.

In relation to the amount of force used to achieve a legitimate military objective, if the goal was forcing Hamas to sue for peace, as the United States did with Japan towards the end of WWII, then Israel would, at the very least, have to reoccupy Gaza. If the goal was deterrence, many would argue that insufficient force was used since the objective of deterring Hamas from targeting Israel with rockets has worked only for a limited time and then the practice has been resumed. If the goal was temporary deterrence and enhancing the protection of Israeli civilians and civil life without a significant cost in the lives of Israeli soldiers, then the proportion was probably about right, though I personally would have been very hesitant to use that much force. But then I am not a military officer or a politician charged with such a responsibility. And my wariness about the use of force probably ensures that I would be unfit for such a responsibility.

The issue is not treating the Palestinian leaders or the Palestinian people with respect and dignity. I think that Israel often falls far short of that standard in treating Palestinian civilians. The issue is whether Israel applies the standards of executing a just war sufficiently to protect the civilian populations in the territories where it is engaged in lethal and legitimate warfare both in general and in particular military encounters. By any measure that is objectively applied, Israel applies the rule of law in accordance with just war doctrine with greater attention to those rules than any other state, even the United States which also has high standards. Most countries, including the peaceable Kingdom of Canada, do not assign legal officers to military units to ensure that ethical considerations enter into targeting decisions. Israel does.

Of course the IDF suffers from the same tensions between the legal ethical officials and the commanders charged with winning a military battle as in any other army, but those ethical considerations are there and they are by and large effective. Bernie’s simplistic judgement that Israel practices indiscriminate warfare against the Palestinians is a calumny. That alone makes him unworthy to be the Democratic presidential candidate when Hillary Clinton is the alternative.

So when Bernie says that, “no one will fight for that principle (a right of self-defense) more strongly than I will,” and insists that Israel, “ has the right to live in freedom, independently and in security without having to be subjected to terrorist attacks,” he is not to be believed. For his credibility depends on delivery and execution, not just rhetorical adherence to a right. Further, when he boils the failures of the peace process down to the need to treat Palestinians with dignity and respect, he proves that he is not only self-delusional and  naïve, but is also ignorant of the machinations and positions of the various sides.

Opposing Netanyahu does not entail accusing those who have dealt with him as believing that Netanyahu is always right. Championing the cause of Palestinian self-determination does not require libeling Israel and its labours while assuring everyone that you cannot be engaged in libel since you believe in Zionism and support the Jewish right to self-determination. The reality is that the rights of self-determination of both Jews and Palestinians exist within a historical, political and ethical context and that does not easily boil down to simplistic sloganeering. It is not sufficient to oppose BDS, to condemn terrorism in general and Hamas in particular, to even criticize the bias of the Goldstone Report, but without really understanding its fundamental flaws. Bernie is certainly not an anti-Israeli zealot. He is a friend of Israel, but a weak friend with too simplistic a view of the dynamics of peace and war between Israelis and Palestinians.

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UNHRC Report.2014 Gaza WAR.I.Mandate

The UNHRC Report on the 2014 Gaza War

Part I: Mandate

by

Howard Adelman

The basic question is whether a) the United Nations Human Rights Council (UNHRC) was operating outside of its mandate field or its field of supposed expertise, and b) in setting up a commission of inquiry, its own presumptions about human rights law, for which it has a clear mandate, deformed in any way the application of humanitarian law in its analysis of the 2014 Gaza War.

On 24 June 2015, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict delivered its report (A/HRC/29/52) (UN Gaza War 2014). The commission was set up by the UNHRC and the report was delivered as agenda item 7 under the more general heading, “Human rights situation in Palestine and other occupied Arab territories.” One year earlier, on 23 June 2014, when the Gaza war was still underway, the UNHRC adopted resolution A/HRC/RES/S-21/1 to establish the independent, international commission of inquiry to investigate all violations of international humanitarian law (my italics) and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, and to report to the Council at its twenty-eighth session in March 2015. The report was delivered only three months late. The mandate read as follows:

“Ensuring respect for international law (my italics) in the Occupied Palestinian Territory, including East Jerusalem”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law (my italics) and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults (my italics), and to report to the Council at its twenty-eighth session”.

However, the United Nations never mandated the UNHRC itself to investigate humanitarian law. Human rights, yes. Humanitarian law, no. Humanitarian law is not mentioned once in the long resolution of 15 March 2006 setting up the United Nations Human Rights Council to replace the United Nations Commission on Human Rights which had fallen into total disrepute. According to the website of the Commission as well as the UNHRC, the Commission of Inquiry interprets this mandate as including investigating the activities of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip and Israeli actions in the West Bank, including East Jerusalem, by looking into a broad range of alleged violations committed by all parties under the full range of human rights, including economic, social and cultural rights. [Note that humanitarian law is not mentioned in this section.]

Here again, Res. A/60/251 setting up UNHRC does refer to regional groupings of states and especially individual states, but nowhere can we find any mention of armed groups, military, violence, etc. The UNHRC was mandated to strengthen the promotion and protection of human rights around the globe, that is, the rights of individuals in relationship to the states in which they live or of which they may be members. The UNHRC was not given responsibility for protecting all aspects of international law, but only those aspects having to do with the relationship between states and its citizens or individuals living on the soil governed by a state. Two overlapping realms of international law – refugee law and humanitarian law – deal respectively with the rights of individuals who are not members of a state that provides for their protection and for the laws governing the initiation and conduct of war. Yet the mandate, now as specifically interpreted by the Commission, was to look into the actions of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip, the West Bank and East Jerusalem as a part of the West Bank.

Under humanitarian law, this would mean investigating what happens to prisoners of war, how the wounded are treated, how military personnel are treated, and how and whether the state makes a strong effort to distinguish between civilian and military personnel. When we examine the report in detail, it will be interesting to see what aspects of humanitarian law are covered and which are not. We are, however, no longer surprised that the UNHRC would decide to investigate the protections afforded civilians and the permitted military means used in the 2014 Gaza War. After all, five years earlier, on 12 January 2009, under almost similar wording, the UNHRC set up what came to be known as the Goldstone Commission.

The difference in wording is interesting. Resolution S-9/1 setting up the Goldstone Commission in 2009 decided to: “dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law (my italics) by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” What a difference five years can make! Unlike the Goldstone Report, which was found to be so flawed, even by Richard Goldstone himself after it was published, the 2014 mandate mentions both belligerents and not just one (Israel) and does not restrict the investigation to Palestinian territories. The 2014 mandate does not predefine the war as unjust on the part of Israel by referring to the “current aggression” by Israel. In a more subtle shift, the reference to humanitarian law in the Goldstone Commission mandate followedthe investigation of the application of human rights law. In the 2014 mandate, the reference to humanitarian law precedes the reference to human rights law.

Recall that Mary Robinson, who eventually supported Richard Goldstone’s Report, partially because of her respect for him, and who had been the first person approached to head the 2009 Commission, refused to take the position as head of the 2009 Commission because the mandate was so one-sided and had been “guided not by human rights but by politics.”  Richard Goldstone himself, before taking the position, complained of its failure to take into account the actions of all parties in the conflict and informally received approval by the President that the Commission could broaden its mandate. However, the broadening seemed peripheral and, in any case, the UNHRC ignored the recommendation applicable to Hamas. Thus, Goldstone’s insistence that the informal broadening and the fact that his initiative received no objections at a plenary session of UNHRC was sufficient, proved incorrect, as did his chastisement of Hillary Clinton for her “tiresome and inept” criticisms of the one-sided nature of the mandate. This could not be done with the 2014 mandate which formally required the mission to look at all parties: Israel; the Palestinian Authority; Hamas, which governs Gaza; and other armed Palestinian groups. The two mandates, however, are similar in covering the West Bank, said to include East Jerusalem instead of being referred to as a separate entity, though the violent conflict did not take place there.

In 2009, Richard Goldstone in presenting his report said that he and his fellow commissioners had been motivated by four goals:

  • To uphold the principle of the rule of law and, more particularly, humanitarian and human rights law
  • To ensure the protection of civilians during armed conflict to the greatest extent possible
  • To ensure that no state or armed group should remain immune from accountability and justice
  • Finally,“out of a deep concern for the hundreds of civilians who needlessly died and those who suffered injury and dislocation of their lives.”

The key question in the 2014 inquiry would be the same. Were civilians “to the greatest extent possible” protected during an armed conflict? The question was not, were civilians protected to a reasonable degree in accordance with the laws of war? Because humanitarian law does not require that civilians be protected to the greatest extent possible, for, in the end, that would entail not going to war at all by either side. Killing per se is unlawful under human rights law. However, under humanitarian law, killing combatants is not unlawful and even the killing of civilians is permitted under the situation of “collateral damage” where deaths of civilians are permitted under the principle of proportionality, which is not about protecting civilians to the greatest extent possible, but requires balancing the incidental loss of civilian life or injury to civilians in relationship to the concrete and direct military advantage expected from a particular attack. In other words, it is not about the numbers killed relative to one another on each side, but whether those civilian deaths were proportionate to the military goals being pursued.

There is also an overlap between humanitarian and refugee law. Some of the norms applicable to the Gaza War require:

  1. If the territory is legally an occupied territory, the prohibition under the Fourth Geneva Convention of individual or mass forcible transfers, both within the occupied territory and beyond its borders; there is an exception – an occupying power is permitted  to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons;
  2. Attacking belligerents is permitted, but attacking civilians and civilian property indiscriminately is prohibited;
  3. The duty to spare the civilian population as much as is feasible;
  4. The prohibition of reprisals against either the civilian population and its property.
  5. Permitting an unhindered passage of relief supplies and assistance.

Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome. To take up the latter point, in international studies a definitive distinction is made between humanitarian law, refugee law and human rights law. These three spheres overlap in their application, but the distinction does not. Human rights law deals with a state’s relationship to its citizens and other foreigners on its soil focusing on the protections of civilians from any oppression by a state. Refugee law deals with the rights of individuals who lack membership in a state that will protect them and are outside their state of normal residence, but, in situations of failing or disintegrating states, may even be living within their national home. Humanitarian law deals with the conduct of war, more particularly, though certainly not only, the protection of civilians affected by armed conflict. Unlike humanitarian law, which can never be suspended, some human rights treaties permit states to derogate from certain rights in times of public emergency and suspend certain key rights, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

The three spheres are said to overlap and complement each other. But, in reality, they are also at odds. After all, in war, targeting anyone for death, even if the person is a soldier, cannot be part of human rights law which, as interpreted in the last two decades, even restricts states from taking the lives of their own citizens even in cases of very heinous crimes. So it is very difficult to look at military behaviour through a military lens of humanitarian law if the primary glasses used are to assist in viewing that behaviour in terms of human rights violations. It is akin to using reading glasses to allow one to see distances more clearly.

Now it is well known that three agencies were set up to educate and monitor behaviour in each of these three fields – the UNHRC for human rights law, the UNHCR (High Commission) for refugee law, and the International Committee for the Red Cross (ICRC) for humanitarian law. So how come the UNHRC seems to be poaching on ICRC territory? One reason is conceptual.  ICRC in its 2005 statement on its own mandate, stated that, “International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons. They form a complex network of complementary protections and it is essential that we understand how they interact.” However, that is not how a coterie of human rights lawyers, researchers and professional actors who have made human rights their specialty, view it. For them, human rights is all encompassing and humanitarian law and refugee law are but specialized divisions of human rights law. The three fields are not related as overlapping, but one field is all-encompassing while the other two are subordinate.

But the rivalry is not just conceptual. This is quite evident. The UNHRC states unequivocally its imperial position: the UNHRC defines itself explicitly as the “principal human rights official of the United Nations.” But it is not the principal humanitarian law official of the international system. The ICRC, an organization much older than the UN itself, is. Yet the UNHRC saw no need to seek out the ICRC to forge a partnership to investigate the violent conflict in Gaza, or, for that matter, to cite the ICRC very much in its report. There is another reason, for the ICRC, unlike UNHRC, does not have a close relationship with any human rights organization, but particularly with the UNHRC which lacks a field presence. Further, human rights organizations define themselves as outspoken and, therefore, by their very nature, they speak out. ICRC, in contrast, has a confidential modus operandi.

But this does not explain why, of the 680 paragraphs and 1255 footnotes, ICRC is only referred to in 18 of them, that is just under 1%. Though ICRC was present and active in Gaza throughout the whole conflict, ICRC is only cited three times for evidence, each time with respect to Israeli behaviour – targeting civilians in an UNRWA school, targeting ambulance drivers and targeting the Gaza power plant. There is not one citation that says anything positive about Israel by the ICRC and no references to ICRC observations re Hamas conduct.

In addition to the three specific observational and interpretive issues, ICRC is cited three times with respect to two issues, the Palestinians aiming missiles at Israel, and here only to note that since the missiles could not be aimed properly, this would clearly be a mitigating circumstance in the degree to which they could found to be at fault. There are also two citations concerning Israel as an Occupying Power, not to discuss the legal issues raised, but to simply support the view that Israel has been an occupying power long before it invaded Gaza and even after it withdrew its troops.

The other 12 citations refer to ICRC as the definitive reference point on international humanitarian law, therefore granting in reality what they take away conceptually and concretely in the behaviour of UNHRC. Further, as the leading authority on humanitarian law, ICRC makes itself available to offer advice, particularly to the UNHRC, on the basic principles and guidelines applicable to various situations of alleged humanitarian law regulations. Why was so little attention paid to ICRC when it is clearly the most respected and widely recognized protector of humanitarian law as well as one of the most respected humanitarian organizations in the world? Most importantly, it is THE organization mandated under international law, including the Geneva Conventions, to both interpret humanitarian law and to protect the victims of armed conflict, including those wounded in war, combatants taken prisoner, the forcibly displaced and, most importantly for this report, the responsibility for protecting civilians and other non-combatants. Given ICRC’s well-known criticisms of some of Israel’s conduct, it could not be because ICRC is biased in favour of Israel. But ICRC is biased in favour of humanitarian law as a distinctive field, though overlapping with human right law, occupying a distinctly separate niche in international law.

In this analysis I will eventually discuss the key legal issues and the observations and interpretations of specific incidents where each of the belligerents were or could be found to be at fault. I will also compare the citations of ICRC compared to those attributed to such NGO human rights organizations as Amnesty International and Human Rights Watch who also presumptively assume a responsibility for humanitarian law, but almost always within a human rights frame. I will also question why the foremost authorities on applied humanitarian law are not cited or drawn upon for their experience in the application of international humanitarian law, namely the views of various Western armed forces on the ethical conduct of the war in accordance with international humanitarian law.

Just because the UNHRC is not the first among equals when it comes to humanitarian law, and just because it places international humanitarian law in a subordinate position to international human rights law, and just because its citations of the ICRC are so few, and even those few are feeble, does not mean that the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict could not conduct a proper investigation and deliver an excellent report. Certainly even on a cursory reading, it is much superior to the Goldstone report. If the Goldstone Report was worthy only of an E, a complete failure, a cursory reading of this report on the 2014 Gaza War appears to deserve at least a passing grade. Whether it will be a bare pass, a good pass or an excellent one will have to await our analysis.

One last word about the UNHRC’s own mandate and the mandate assigned to its commission. The Universal Declaration of Human Rights, the principles of which UNHRC is mandated to uphold, itself suggests that UNHRC in conducting this inquiry strayed both well outside its comfort zone as well as its responsibilities to the international community. For example, echoing Immanuel Kant, the preamble of that Declaration states unequivocally that its foundation is not only freedom and justice, but peace. Further, Article 3 states clearly that, “Everyone had the right to life, liberty and security of person.” War contradicts that and claims that belligerents have no right to life and no right to security, with the exception of the protection of civilians so long as that is possible given the strategies each side adopts. War by definition is a violation of human rights. But the Declaration is not concerned with violent conflict, either the reasons for going to war or the conduct of the war. It is concerned with such old standbys as freedom of speech, of assembly, as well as the new economic freedoms enunciated since the Universal Declaration was adopted. The latter document clearly refers to its mandate as focused on a state in relationship to individuals over whom it has charge.

International humanitarian law is about the conduct of states or quasi-state entities as they do battle, and primarily about the protection of individuals. Human rights are also about the protection of individuals. Those rights make up a very long list. However, by the time you get to Article 29 of the Declaration, the clear aspiration is peace. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Clearly that is aspirational since international order is stated as a precondition for the full realization of human rights. Yet the Declaration does not attend to the question of how an international peaceable kingdom can be established. The foundation of human rights law and international humanitarian law are fundamentally distinct.

If human rights are based on the universal declaration of 1948, international humanitarian law is based on the four Geneva Conventions of 1949 and the two additional protocols of 1977, as well as a number of specific treaties, such as Conventions on the use of specific weapons – such as phosphorous or poison gas – Conventions on the protection of cultural property during violent conflict, and all of these as interpreted by international jurisprudence. International law governs the initiation and conduct of armed conflict even if nowhere in the law is armed conflict defined. But somehow, we all seem to know what it is even when it is not defined. And certainly there was no dispute that humanitarian law applied to the Gaza conflict. However, just to be clear, the ICRC qualifies a situation of violence and then “sends a memorandum to the parties concerned setting out their obligations under international humanitarian law and offers its services.”

What constitutes an “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons taking a direct part in hostilities may be attacked – even with lethal force; and that killing of civilians in certain circumstances must be assessed pursuant to international humanitarian law’s principle of proportionality which requires a balancing of the incidental loss of civilian life or injury to civilians with the concrete and direct military advantage expected from a particular attack.

I will pay a great deal of attention to the application of this principle by the Commission the objectivity and expertise of which depends in good part on the expertise and mental frameworks of the Commissioners.

Next blog: The Commissioners

Mothers and Sons: When Your Boy Goes Off to War

Mothers and Sons: When Your Boy Goes Off to War

by

Howard Adelman

In David Grossman’s marvellous, but also exasperating, book, To the End of the Land, the heroine of the book, Ora, is a mother whose son has been called up for duty in the Israeli Defence Forces when a war has just started. Among the many options mothers have of dealing with such a frightening situation, instead of staying at home by the telephone and cancelling all personal pleasures, or keeping herself immersed in busy work, Ora took the path far less travelled. She recruited an old friend and lover, Ofer, to go hiking in the Galilee where, if she were busy hiking and not at home to answer the phone, miraculously the phone would not ring to deliver any bad news. So the reader is taken on a roller coaster ride of emotions and revelations as Ora and Ofer hike and camp in the Galilee hills. This blog is not intended to review the roller coaster ride Ora takes the reader on in northern Israel but rather to compare the son’s experience with that of his mother.

If the response Ora took was unusual, the situation in which she found herself is common in Israel. Lihi Lapid, another Israeli novelist (Woman of Valour), journalist and columnist, posted the following article:

“To Be An Israeli Mom”

To be an Israeli mom is – before you’re even an actual mother, to wait for the ultrasound exam to learn that everything is ok, but when the doctor says “it’s a boy” – to immediately imagine your foetus a soldier in uniform, with road dust in his hair, his rifle hanging on his shoulder and his eyes full of innocence. And to start being afraid.

To be an Israeli mom is to teach your daughter not to show weakness in front of her third grade classmates, because she has to be strong, so she doesn’t fall apart in front of her tough commander at basic training as a rookie soldier.

To be an Israeli mom is to complain about your country quite a bit, but always tell your children it’s the best place in the world.

To be an Israeli mom is to be involved, to “consume” the news like a drug addict, to protest for or against, and always feel responsible for what’s going on here, because it’s yours. It’s your state, and it’s your children that will protect it. And to know that you don’t have the option to be indifferent, not in this country. And sometimes – to agonize that you didn’t protest more.

To be an Israeli mom is to know about the situation no less than the staff sergeant, the commanding officer, and even the Chief of Staff. And if you meet them, to also let them know what YOU think should be done.

To be an Israeli mom is to be scared when the sirens go on, but to remember it’s important that your children don’t stress out, and won’t be afraid, so you take a deep breath and tend to them first, like you couldn’t be more calm and you’re not scared one bit.

To be an Israeli mom who lives by the border, near Lebanon in the north or Gaza in the south, is to be a part of a chain of the wonderful brave Israeli women, for whom guarding their homes is also guarding their country. And to hope this time would be the last.

To be an Israeli mom is to see field-training-uniform hanging on the laundry rope, and know how difficult it is to iron them. And to also know that the mother or father who irons them might shed a small tear which will probably be absorbed into the cloth, without leaving a trace, but which will have come from deep within the heart.

To be an Israeli mom it to not be able to look at the photos of our killed soldiers, and try not to think how they look like your own son. And then look at the photos and think it anyway.

To be an Israeli mom is to see a bereaved mother and feel how you run out of air, feel the sharp pain in your chest. It’s to know that the bereaved mother is not someone else – she is a mom exactly like you. And that it could have been you. And through that to feel you are soul sisters, and hurt with her. To want to hold and hug her, but at the same time to know you will never be able to actually ease her pain, and that there are no words.

To be an Israeli mom is to want one day to be a grandmother too. To be an Israeli grandma is to not to believe that both your grandson and granddaughter are being drafted to the army. After all, you were the one who told grandfather, when he went to war, that by the time you had grandchildren this would end. And to wonder whether it will ever end.

To be an Israeli mom is to know that all you want to give your children is security, and to realize that this is the one thing you cannot actually promise them. And still know for a fact that Israel is the most secure place for your child. (I know this cannot really be explained to anyone who is not an Israeli).

To be an Israeli mom is to want peace, but not be willing to give up safety or security. It’s to go through the current month in Israel and to know that an Israeli mom deserves to grow her children quietly. It’s to also know that one day peace will come.

Because peace is the promise of the Israeli mother.
And she is not the one to give-up.

One reader wrote a response. Here is an extract.

Every word of it describes precisely what we feel every day: Our happy moments along our sad or terrifying moments, the choice we make every day, choosing to live in a place which is homeland on one hand, and the center of a world conflict between 3 religions on the other hand. Looking straightforward into the eyes of a harsh reality forces you again and again, every day, to choose optimism instead of despair, choose hope for peace instead of knowledgeable interpretations about the impossibility of achieving it, choose looking at the beautiful face of humanity and solidarity while ignoring the ugliness of evil and terrorism…The times of Gaza war were very very difficult for A and me, as E participated there intensively. For known reasons I can’t write about it. He was risking his life and all we prayed was that nobody will knock on our door with terrible news. We stayed at home, didn’t want to go out, prayed for this temporary terrible tsunami to skip our house. The burden of our deep worry was very heavy this time. We were sticking to the news, both on T.V. and on the radio praying to hear about cease fire or political negotiations.  At war times I keep saying to myself “no news – good news”.

Mothers go through horror often much more terrifying than their sons or daughters on the military front. The woman who sent me the original article and the response had a son, Aryeh, in the recent Gaza War. She claimed that her husband was much more of a wreck than she was because he had a non-stop stream of news while she had retreated to the cottage and tried to live in a bubble. Though her son had phoned daily when he was mustered to Gaza, after he actually went in when the ground war started, communications were cut. “That was the difficult part, not knowing where he was or when we would hear from him again. We jumped every time the phone rang and slept with our cell phones on and beside us.”

Just nine days before Aryeh and his fellow Israeli troops were the last to withdraw from Gaza, ISIS or the Islamic State blew up a shrine in Mosul with which he shared a name. Aryeh is a young upstanding man whom I have known since he was a baby. He is a man of excellent character and virtue. Yesterday evening I interviewed him.

I asked Aryeh if he saw any similarity between himself and the approximately 100 Canadian volunteers fighting with ISIS. He responded that we all go to serve a cause we believe in. I was surprised at his answer and the additional remark that one man’s terrorist is another man’s crusader and champion, since I radically distinguish terrorists who capture and cut off the heads of Westerners versus Canadian volunteers who go overseas to serve in the Ukrainian or the Israeli armed forces. Of course, he too distinguished the two groups, but he also recognized similarities. For awhile, he did not know whether his volunteering to serve in a foreign army was legal, but subsequently learned that service abroad in the IDF is legal. In contrast, Canadians serving in an organization the Government of Canada has labeled as a terrorist one, including not only ISIS but Hamas, are engaged in illegal Canadian activity. Those individuals are branded as terrorists by the Canadian government.

I asked what training he had in the norms of a just war. I had to explain briefly what those just norms were. He could not recall any lessons and suggested from the instructions of officers, that they had been trained in just war theory because he and his other fellow grunts were taught, for example, never to shoot at a fleeing car except in three cases: 1) men are firing at you from the car; 2) if there has been a kidnapping; 3) he could not recall the third. I suggested that it was perhaps if they had evidence that the car was filled with explosives or if the car was bearing down on you. He could not remember.

For Aryeh, throughout his training, the army almost always appeared as a balagan (chaos but without the texture and feel of the disorder of the original Yiddish or Hebrew). However, once they were engaged in war, the infantry, the engineers, the intelligence units, the tank and artillery units and the dog unit all came together in a marvellously well-oiled machine of coordination and cooperation. Even then, and in spite of all the care taken, some soldiers were killed by friendly fire. He thought the figure was thirteen. When I returned to my desk, I checked. The IDF figures showed five deaths from friendly fire. I was unable to follow up on the discrepancy.

This war had cost the lives of at least five Israeli soldiers from friendly fire, about 8% of the sixty-six military deaths. On the Palestinian side, with equipment much more prone to mishaps and with units working far more independently without the command and control system of the Israeli army, it is estimated that at least 15% of the Hamas and Jihadi militants were killed by friendly fire – as well as far more civilians – or about 40-71 Palestinian militants depending on whether one relies on the Hamas figures of about 600 militant deaths or the Israeli figures of 1068 militants killed.

The first Israeli soldier to die in the Gaza War, 20-year old Eitan Barak serving as a commander in the Nahal brigade, was killed by friendly fire from a tank missile fired by another brigade, the very type of event that Aryeh described that took place near his position. He had been sent with his battalion to the Gaza front two weeks before the ground war started and six days before the actual war started. During those two weeks, the news that the units were going into Gaza or not were reversed many times. However, once his paratroop battalion under the command of the Givati brigade went into Gaza, with an artillery, a tank, an engineering unit, and even a dog unit, the hesitancy and reversals seemed largely to stop until just before the end of the ground war.

However, frustrating reversals did occur. His part of a platoon had taken a position in a house and had filled up special bags with sand to fortify the windows. That same evening, they were told to pack up; they were being withdrawn from there. They emptied the bags and were almost finished cleaning up when they were told the order had been rescinded and they had to refill the bags and fortify their position once again.

Aryeh had not spent all of the 18 days fighting in Gaza. He went in on a Thursday, nine days after the war began with the first troops entering Gaza. After five days, on the following Wednesday morning, his battalion was ordered out of Gaza. By the same evening, they were ordered back in. After another eight days, they left Gaza for some respite, but soon returned to the battle. He himself never found himself engaged in a fire fight. He shot no one and was never shot at. But one soldier in his battalion had been killed. In another incident, a terrorist came out of a tunnel 100-150 metres from his location, shot an RPG at an Israeli tank and another soldier was injured. In his own unit, a soldier was injured by a piece of shrapnel that went right though his leg and another by a sniper bullet that went through his neck, but he survived.

Though Aryeh had been in the war from the very beginning until the very end, the war had not been traumatic for him. Nevertheless, his sense of the contingency of life had become much more acute. Even though the situation was not akin to the action seen in the vast majority of war movies, he still censored what he told his parents sensitive to their fears and what they might imagine. When sent to the front, he told them he was in training. One of the two times he came out of Gaza for rest, his father, who had traveled from Canada, was there and they were able to hug and cry together.

Aryeh was largely engaged in blowing up tunnels with the main focus on tunnels going into Israel rather than the many logistical tunnels within Gaza. The engineers planted the actual explosives that blew up the tunnels. On his cell phone he showed me a picture of a mosque beside which the entrance of a tunnel had been built. He then showed me the picture of the tunnel exploding. The mosque was severely damaged in that explosion. The soldiers themselves had been ordered never to enter the tunnels, so the presumption I had made that the Israeli soldiers needed training in tunnel warfare was wrong. They did not fight in the tunnels. They only located them, traced their route and the engineer company destroyed them.

Near the very end of the war as units were being withdrawn and as the cease-fires were no sooner agreed upon than they fell apart, his unit was engaged in locating and protecting the engineers as they worked to blow up one final  tunnel they had located. When they were ordered to withdraw on 4 August, they felt they had only partially succeeded in totally destroying the last tunnel. But Aryeh felt very proud about the 32 tunnels they did locate and destroy.

Asked about the relatively high cost in military casualties, he said that is why they were in the army. They were there to sacrifice their lives for the protection of civilians. The few Israeli civilians killed (six plus one Thai foreign worker) was a testament to the IDF’s success. Just imagine if the planned attack on Rosh Hashanah of 200 Hamas and jihadi militants through the tunnels into Israel had taken place. Can one imagine how many Israeli civilian deaths there would have been? The soldiers, and the four sniffer dogs that had been killed, about which he felt particularly badly, were necessary sacrifices for the larger cause of protecting Israeli civilians.

Near the very end of the war, just an hour before the final real cease-fire came into effect, on a kibbutz next to Gaza that had been under almost constant code reds, Shahar Melamed, 43, a father of three children, and Zeevik Etzion, 55, a father of five, were outside repairing an electricity line damaged by a mortar attack earlier that day when they came under a barrage of fire from Gaza. Both men were killed.

Aryeh had also been very near the position where three Israeli soldiers had been killed near the end of the war. Initially, his unit had been told that two of them had been captured and kidnapped and then that figure was revised to only one. As it turned out, all three had been killed. But the believed kidnapping of an IDF soldier had triggered Operation Hannibal and his and other units were ordered to leave the work they were doing locating the last tunnel and aggressively ordered to penetrate further into Gaza to isolate the area of the alleged kidnapping.

Aryeh is very proud of what he and his fellow soldiers had done and accomplished in Gaza. He had no doubt that they had won. In the tension between those who believed that too much ordinance had been used and those who believed that the army had been held back and should have finished Hamas off, he sided with the government and thought it struck a reasonable balance between minimizing IDF casualties and destroying Hamas by debilitating Hamas to a very large degree.

Aryeh seemed less aware of the much larger media war in which Israel and Hamas had been engaged. For him, there was no question. Hamas was a terrorist group, perhaps not as bad as Islamic State, but nevertheless a group that ruthlessly, openly and in public killed civilians simply because someone claimed they were collaborators. He thought that the greatest victims of Hamas were the Palestinians they ruled over. He also conceded that the Hamas militants the IDF encountered this time had been much better trained, much better equipped and much more determined and tactical in fighting an urban war.

The most surprising part of the whole discussion was the number of soldiers Aryeh thought had been deployed in Gaza. He asked how many I thought. I replied that the highest figure I had read in an article by a purported expert on the Israeli military was 73,000. I had been very critical of that figure as highly exaggerated and thought the figure was less than 40,000. He said that the Israeli army went in with four battle groups. He knew the numbers in his own battle group and calculated there were 8,000 IDF soldiers who entered Gaza. According to him, at most 10,000 soldiers went into Gaza to fight against 21,000 to 30,000 Palestinian militants. The discrepancy between the 10,000 maximum and my figure of 40,000 may have come from my failure to distinguish between Israelis called up for duty and Israeli soldiers deployed on the ground in Gaza.

When asked about the pain and fear and suffering of his mother while he was in Gaza, he said that he was aware of it and tried to spare her as much worry as possible, but that it was part of the sacrifice of the war. He himself had emerged from the war relatively unscathed and was surprised to learn that I believed that his mother had been more significantly affected and had become more acutely aware of which of her friends offered and were capable of offering empathy and understanding the fears that she went through. Both parents were amazed at the outpouring of love and support from those outside their close circle. That meant so much while they waited to hear news.

I came away from my interview convinced that the parents of the Israeli soldiers in Gaza suffered far more than the soldiers themselves. This is probably the case with parents of Palestinians. The dread may also be akin to the fear and trembling parents experience when their children are suffering or have a severe illness.  Their pain might be even more acute than that of their children.

Part IX: Application of Just War Norms to the Gaza War

Part IX: Application of Just War Norms to the Gaza War

by

Howard Adelman

On 23 July, the Human Rights Council of the United Nations set up the Schabas Commission (A/HRC/RES S-21/1 which can be found at A-HRC-S-212-I_en-1(1).doc) The resolution was not set up just to look into the possibility of war crimes committed in the conduct of the 2014 Fifty Day Gaza War between Hamas and Israel. The war would not end for another month. The Report was entitled, “Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem”.

Though Bill Schabas insisted to me that the preamble was just UN boilerplate, the mandate clearly biases the inquiry in at least four ways:
a) presuming that Gaza is occupied by Israel – the preamble explicitly emphasized “the obligations of Israel as the occupying Power to ensure the welfare and safety of the Palestinian civilian population under its occupation in the West Bank, including East Jerusalem, and in the Gaza Strip (my italics), and noting Israel’s wilful abdication and rejection of its obligations in this regard;
b) inclusion of the West Bank and East Jerusalem where no war took place;
c) exclusion of Israel where thousands of rockets fired from Gaza landed;
d) a clear lack of balance between the overwhelming focus on Israeli actions and the few sideline references to actions of Hamas in Gaza without once mentioning Hamas.

But clashes did take place over the war in both the West Bank and East Jerusalem. On Thursday evening, 24 July, just after the Inquiry Commission was set up, protests took place in East Jerusalem. 20 protesters were arrested for throwing rocks. The Border Police prevented men over 50 years of age from attending the al-Aqsa Mosque just as Ramadan was ending.

In addition, there were a number of protests in the West Bank where Palestinian civilians were killed. On Saturday 26 July, one of the last days of Ramadan, Eid Fdilat from the al-Aroub camp near Hebron and 14-year-old Nasri Mahmoud in Beit Faijar near Bethlehem, who were killed in clashes the day before, were buried. In Beit Omar, two men aged 27 and 47 were killed in protests. In Hawara south of Nablus, two young men aged 21 and 22 were killed. In total, 10 Palestinians were killed and 200 wounded in those Friday protests following prayers in which protesters threw both rocks and Molotov cocktails at police and, according to Israel, even used live ammunition. Fearing a third intifada and determined to suppress it at once, Israeli Border Police fired stun grenades, and both rubber and live bullets at the protesters.

The main catalyst for the protests was the killing by an Israeli missile on Thursday 24 July of at least 10 civilians who had taken shelter along with 3,000 other Gazans in an UNRWA facility as described in an earlier blog, though, as I said there, the depiction has been challenged as a staged event following a misfired Hamas rocket but with only prima facie evidence and insufficient proof.

This time it was not only mullahs giving sermons in mosques that had stirred up the protests in a “day of anger” against the almost 1,000 Gazans (BBC reported 800) killed in the Gaza War in just over two weeks. Palestinian President Mahmoud Abbas, who heretofore had been silent and acquiescent concerning Israel’s reprisals, first against Hamas in the West Bank and then against Gaza, now called for demonstrations, demonstrations which were organized mainly by Hamas supporters if the number of Hamas flags held up in the protests offered any indication.

However, the commission covering the West Bank and East Jerusalem as well as Gaza was set up before the clashes and deaths of Palestinians in the West Bank. Further, these killings were not part of just war international law but only human rights law. The effect, at the very least, explicitly conjoined human rights and international just war law into a single inquiry. The preamble to the inquiry affirmed “the applicability of international human rights law and international humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem.”

However, one clause in the preamble could have referred to Hamas behaviour in Gaza – the reference to the fact that “the deliberate targeting of civilians and other protected persons and the perpetration of systematic, flagrant and widespread violations of applicable international humanitarian law and international human rights law in situations of armed conflict constitute grave breaches and a threat to international peace and security.” However, the clause immediately following referred only to Israel; Hamas is never explicitly mentioned.

Deploring the massive Israeli military operations in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014, which have involved disproportionate and indiscriminate attacks and resulted in grave violations of the human rights of the Palestinian civilian population, including through the most recent Israeli military assault on the occupied Gaza Strip, the latest in a series of military aggressions by Israel, and actions of mass closure, mass arrest and the killing of civilians in the occupied West Bank.

It would appear that the Human Rights Council had already prejudged the outcome of an inquiry by pronouncing in advance that Israeli actions in the Gaza War were disproportionate in its use of firepower and did not properly discriminate between militants and civilians. If the preamble indicated bias, the singular focus on Israel in the mandate clauses pulled no punches. The Human Rights Council in its 23rd of July resolution in its second clause,

2. Condemns in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the Occupied Palestinian Territory since 13 June 2014, particularly the latest Israeli military assault on the occupied Gaza Strip, by air, land and sea, which has involved disproportionate and indiscriminate attacks, including aerial bombardment of civilian areas, the targeting of civilians and civilian properties in collective punishment contrary to international law, and other actions, including the targeting of medical and humanitarian personnel, that may amount to international crimes, directly resulting in the killing of more than 650 Palestinians, most of them civilians and more than 170 of whom are children, the injury of more than 4,000 people and the wanton destruction of homes, vital infrastructure and public properties;
The prejudgement in advance of the inquiry and in setting up the inquiry is as explicit as one could make it. It is as if a trial of an alleged criminal began with the explicit condemnation of guilt not just by the prosecutor but by the court. The UNHRC assumes its role to be one of prosecutor, judge and jury rolled into one entitled to draw conclusions of guilt before a truly independent investigation had been held and certainly before any trial.

The mandate may appear to be balanced when the next clause condemned “all violence against civilians wherever it occurs, including the killing of two Israeli civilians as a result of rocket fire.” But the mandate no sooner makes this brief and indirect reference to Hamas rocket fire than it implicitly restricts the inquiry to the very few situations in which civilians in Israel were killed. The mandate takes away even an appearance of balance by immediately subsuming Hamas’ actions within the same clause by referring to the obligations of “all parties” concerned to respect their obligations under international humanitarian law and international human rights law.

Another clause of the preamble reaffirmed the findings of the Goldstone Commission and placed this new inquiry clearly as a continuation of that previous one, especially in the context of the Commission making statements on the Gaza War that Israel was deliberately targeting civilians, in spite of Goldstone’s own retraction of that finding..
Gravely concerned at the lack of implementation of the recommendations contained in the report of the United Nations Fact-Finding Mission on the Gaza Conflict of 2009, and convinced that lack of accountability for violations of international law reinforces a culture of impunity, leading to a recurrence of violations and seriously endangering the maintenance of international peace,
The preamble even made reference to Israel’s construction of the security barrier and the Council’s conclusion that this was a violation of human rights. For the Human Rights Council, “systemic impunity for international law violations has created a justice crisis in the Occupied Palestinian Territory that warrants action, including accountability for international crimes.”

The mandate does not call for a cessation of rocket fire from Gaza but does call for “an immediate cessation of Israeli military assaults throughout the Occupied Palestinian Territory, including East Jerusalem, and an end to attacks against all civilians, including Israeli civilians.” Clause 6 of the mandate explicitly “Demands that Israel, the occupying Power (my italics), immediately and fully end its illegal closure of the occupied Gaza Strip, which in itself amounts to collective punishment of the Palestinian civilian population, including through the immediate, sustained and unconditional opening of the crossings for the flow of humanitarian aid, commercial goods and persons to and from the Gaza Strip, in compliance with its obligations under international humanitarian law.” Of course, this was precisely the objective of Hamas in initiating the war. One would never have a clue that humanitarian aid continued to flow across the crossing points into Gaza throughout the war or that Egypt had closed the crossing into Rafah completely.

There is no reference to the three Israeli Yeshiva teenagers abducted and murdered, but the mandate does explicitly refer to the murder of one Palestinian boy by extremist Jewish thugs, for the mandate “Expresses grave concern at the rising number of incidents of violence, destruction, harassment, provocation and incitement by extremist Israeli settlers illegally transferred to the Occupied Palestinian Territory, including East Jerusalem, against Palestinian civilians, including children, and their properties, and condemns in the strongest terms the resulting perpetration of hate crimes.”

If the mandate was really serious about investigating the use of civilians, it would not only call on Israel to protect civilians as much as possible, but would call on Hamas, the governing authority in Gaza, to ensure civilian protection. The mandate explicitly ignores this fact and makes no reference to the possible use by Hamas of “human shields”.

So when the Human Rights Council

Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults, and to report to the Council at its twenty-eighth session;
one can only sigh and despair at the total surrender of principles of neutrality and impartiality. One can only raise one’s eyebrows in wonder at the use of the word “independent” when the commission of inquiry is to operate under the auspices of the Human Rights Council and to be conducted by individuals appointed by the President of the Council.

When the only party to vote against this overtly totally biased and disreputable resolution was the United States, and when pusillanimous states, such as Austria, Britain, Germany, the Czech Republic, France, Ireland, Italy, Japan and Korea, only abstained along with a few other small countries, it is little wonder that Israel has virtually no trust in the procedures of the UN. When the countries supporting the resolution and ensuring its majority include Algeria, Cuba, Ethiopia, Kuwait, Pakistan, the Russian Federation, the United Arab Emirates and Vietnam, one has to ask how and why Bill Schabas would accept such an appointment. The mandate and the process exceed any decent norms of fairness. Why Latin American countries — such as Argentina, Chile, Mexico, Costa Rica — also supported such a resolution has to be of concern to Israel and those who believe in a UN run as much as possible, especially in the area of human rights, on as impartial a basis as possible.

The appointment of Bill Schabas to head the commission also has to be regarded as a serious disappointment, He is certainly an excellent scholar and expert on international law, but when it comes to Israel, he had already pronounced on the illegality of Israeli actions in Gaza. He should have recused himself as a scholar given our commitment, however imperfectly, to the academic values of impartiality, objectivity, detachment, disinterestedness and open-mindedness, especially when charged with an inquiry into such a contentious area. Now it is clear that there can be no objectivity in an absolute sense since objectivity is itself a value commitment and is to be understood against a background that defines and enjoins neutrality in approaching contentious issues. This approach requires judgement, so there is no absolute neutrality and impartiality. There is, however, a big difference between the effort to maximize neutrality and impartiality both in appearance and substance and the virtual absence of these criteria. There is very little sense of neutrality and judgement in the terms of reference of the Commission or in its appointees.

Neutrality and impartiality are the key ingredients with respect to any adjudication, particularly when there is a conflict between two parties. These two qualities are especially important if the “neutral” party is to influence the actions and behaviour of the belligerents. However, the Commission seems obsessed with scoring points against Israel, countering “impunity” and holding Israel “responsible” rather than enhancing the rule of international law to truly protect civilians, especially in times and places of war.

What could have been done? A three person commission made up of a very respected Israeli academic on international law, an equally highly respected Palestinian academic or jurist with expertise on international law, and a third appointment drawn from the international community with an equally stellar reputation and agreed to by both the Israeli and the Palestinian appointee could have been charged with looking into specific alleged charges of possible breaches of international just war laws. Any of the three would have to recuse him or herself if they had made any public pronouncements on the illegality or immorality of the case. This may be akin to finding precious gems or locating a fair jury in a highly publicized murder trial where the depiction of the alleged murdered was widely distributed, but it is difficult not impossible. And it is the first principle of ensuring justice. But “justice’ seems to be a word unfamiliar to the Human Rights Council.

The human rights of Palestinians in the territories should not have been merged with a just war inquiry if only because there is already a debate among international law experts on whether just war theory is merely a sub-category of universal human rights or whether it has to be understood in conjunction with the reality of war which in its very essence is not an activity primarily concerned with human rights, though, in my view, and that of many others, going to war and conduct in war should be bounded by certain limitations governed by just law principles, but these are neither subordinate to nor subsumed under human rights principles.

This alludes to a much larger issue – the effort of cosmopolitan international philosophers and legal theorists to subsume all international ethical and legal issues under a human rights rubric versus those who consider that human rights law is not a monotheistic secular religion but exists and lives among various overlapping constellations of ethical principles — such as those governing the conduct of war or those regarding the treatment of refugees. The irony is that it seems to be the cosmopolitan theorists who are most likely to allow bias and partiality to infect their analyses whereas ethicists or lawyers, for example, conjoined to the military in th United States, for example, seem far more capable of a detached approach when examining specific cases in which accusations have been made about abuses of the norms of just war.

Tomorrow: Part X Reconciling War Strategy and International Law

Ethics and Drones Revisited19.03.13

Ethics and Drones Revisited 19.03.13

by

Howard Adelman

If you skip the bibliographical references, this is not a long blog.

I thought the debate over drones would cool off again after the initial flurry of articles following the leak and publication by NBC News of the Obama memo justifying their use in a confidential Justice Department 16-page memo (on 4 February 2013). That memo concluded that the U.S. government could order the killing of American citizens (Anwar al-Awlaki and Samir Khan) if they were believed to be “senior operational leaders” of al-Qaeda (or “an associated force”) even in the absence of intelligence indicating they had been engaged in an active plot to attack the U.S. Between the immediate aftermath of the release of the memo until the publication of my blog on Obama and Drones (Obama 19. Drones: The Normative Debate 27.02.13), the commentary certainly seemed to cover all sides of the issue. This is a sampling that I added to my bibliography on the topic between the release of the memo and my blog:

  • Nick Gillespie, "Do You Agree with White House that Drone Strikes are ‘Legal’, ‘Ethical’ and W’ise’," Reason.com, 5 February 2013
  • Matt Willstein, "White House Responds To Drones Memo: Strikes are ‘Legal’, ‘Ethical’ and ‘Wise," Media, 5 February 2013
  • Doug Powers, "Jay Carney: Drone Strikes constitutional, ethical, wise, and completely within the province of a Nobel Prize Winner," Michele Malkin, 5 February 2013
  • Maryann Cusimano, "Love White House: Drone Program ‘legal’, ‘ethical’ and ‘wise’. Is it?," The Washington Post, 5 February 2013
  • Adam Clark Estes, "The Future of Drone Warfare is Scary," Atlantic Wire, 6 February 2013
  • Owen Schaefer, "The double standard of objections to drone strikes against US citizens," Practical Ethics, 6 February 2013
  • Robert Murray, "The Ethics of unmanned killer drones still evolving," The Province,7 February 2013
  • Andrew Reddie, "Beyond Ethics: Drones in Realpolitik," Georgetown Journal of International Affairs, 8 February 2013
  • Eugene Robinson, "Drones bend the rules of ethics," Tennessean, 10 February 2013
  • "Drone Ethics: The Policy and the Memo," Ethics Alarms, 11 February 2013

· George Clifford, "Drones and targeted killings – Part1," Ethical Musings, 11 February 2013

  • Jane Mayer, Jeff McMahan and Michael Walzer, "The Ethics of Drone Warfare," on Live Chat with Amy Davidson, 14 February 2013
  • David Post, "Drone Attacks Spur Legal Debate on the Definition of ‘Battlefield’," Huffington Post, 14 February
  • Travis Normand, "The war on terror without geographically defined battlefields," Blog response to Post’s article in The Huffington Post
  • Bill Darrow and David Kaiser, "Drones: The Ethics and Strategy," Williams College, 19 February 2013
  • Amy Davison, "Can a President Use Drones Against Journalists?" The New Yorker, 20 February 2013
  • Meghan Topp, "The Secret Drone Wars," RELEVANT Magazine, 21 February 2013

· George Clifford, "Drones and targeted killings – Part 2," Ethical Musings, 21 February 2013

However, in March thus far the debate has continued apace:

," The New York Times, 17 March 2013

  • Shane Newell, "The ethics surrounding drone strikes need more discussion," DAILY49ER, 10 March 2013
  • Michael Walzer, "Is the Military Use of Drones Ethically Defensible?" The Berkley Center, the Master of Science in Foreign Service Program, and the Mortara Center for International Studies, 13 March 2013
  • Ben Emmerson, UN special rapporteur on human rights and counterterrorism, "Report on the Use of Drones by the United States in Pakistan," Office of the High Commission for Human Rights, Geneva. [The report itself is not available
    but its contents have been widely reported in the media, beginning with a
    breaking news item on CBC and then in published reports in The New York Times and a wide array
    of other news outlets around the world
  • "EC Community discusses the ethics of drone
    strikes," The Leader, 19
    March 2013
  • The Kroc Institute for
    International Peace Studies, Conference:
    "The
    Ethical, Strategic & Legal Implications of Drone Warfare," Chicago, 20-21 March
  • Kenneth Roth, "How We Should Control
    Drones," The New York Review of Books, 4 April
    2013

 

Reading this
last one after the issue of the NYRB arrived in the mail yesterday provoked me
to take up the subject once again, but focusing exclusively on the ethical
issues. I suspect that the forthcoming book by Christian Enemark entitled Armed Drones and the Ethics of War: Military
Virtue in a Post-Heroic Age
to be published by Routledge on 31 August 2013
will be out of date before it hits the bookstores. Old fashion book publishing
is just too slow in the modern age of electronic publishing.

 

Roth is not
opposed to the use of drones, even though they appear to make war and lethal
killing easier because their use reduces the risk to the party which owns the
drones. However, insofar as they increase pinpoint accuracy, can hover over the
target to confirm the individual(s) to be hit and can choose the optimum moment
for a strike, the use of drones has the potential of reducing civilian
casualties. Roth also recognizes the difference between the justifications used
for the use of lethal weaponry for a just cause – self-defence employed after
proper congressional authorization, and ius
in bello

issues such as proportionality and the principle of not targeting
civilians. 

 

However, Roth
found the leaked memo of 5 February not only to be deliberately ambiguous but
designed to allow plenty of wiggle room while claiming to employ killer drones
strictly within the bounds of international law. Roth launches seven arguments
against the Obama administration's justification for the use of drones.

 

First, Roth argues
that the range of geographical areas where drones can be used are limited to any
actual battlefield where American troops are engaged. Yemen, Somalia,
Mali and the untamed
territories of Pakistan
lie outside that battlefield. Roth's second argument concerns the
combatant/belligerent status of the targeted individual; the laws of war
prohibit targeting civilians not actively engaged in belligerency – such as
cooks or drivers – there must be direct participation in hostilities. If a
third rationale for targeting individuals is used, namely, the rules of
prevention in a criminal action (rather than a military justification), Roth
argues that such a justification of an immanent threat only applies to war
powers and not to anti-criminal activities; in a criminal situation, the threat
must really be immanent — such as individuals holding a gun to an innocent
civilian's head. Fourth, Roth argues that in non-battlefield situations,
capture is by far the preferable criterion but though the administration
appears to agree, that principle is not applied; capture never seems to be
feasible. Roth's next two arguments concern process. His fifth argument is that
the decisions are too secret and not sufficiently transparent. Sixth, the
decisions are unilateral and not subject to institutional constraints. Finally,
Roth argues that the Pentagon, not the CIA, should be the proper and legal
agency to use drones because the military have a proper chain of command and a
tradition of stronger accountability to the law.     

 

Though Roth
himself is confusing when he flits back and forth between strategic (is the use
of drones counter-productive in creating more civilian resentment and more
terrorists) and ethical issues, and though he makes his arguments in the form
of a trial brief rather than a legal or ethical analyst weighing the different
sides of the question, nevertheless he offers a fairly concise view of one
school of thought on the ethics and laws of war applied to drones. For
elaborations of that argument, see Nils Melzer (2008) Targeted Killing in International Law (OUP). More succinct versions,
but one more elaborate than the one Roth offers, can be found in the writings
of Mary Ellen O'Connell.

 

I myself find it
somewhat exasperating to read repetitions of arguments, especially when not
precisely stated, enunciated virtually since the Obama administration took
office without taking into account the arguments made on the other side. I'll
examine each argument in turn.

 

Does the law of
war restrict belligerency to the battlefield? If it does not, Roth argues that
the US could be allowed to
hit an individual in London.
Functionalists argue that there are no such restrictions in international law
of war. Contrary to Melzer, O'Connell and Roth, the functionalists seem to be
supported by the overwhelming tradition in international law applied to war. The
official US
government view is that fighting follows the belligerents and is not restricted
to battlefields. In ius in bello, hostilities
take place where hostiles are to be
found not where battles take place. The exception is when hostiles are in
neutral territory of a state determined to protect its neutrality.

 

However, neither
the preponderance of authorities nor the weight of tradition makes an
interpretation correct. Those are simply empirical issues about ethics. They
weigh as precedents and arguments from authority but are insufficient in
themselves to determine the outcome of a debate. Mary Ellen O'Connell offers a
more elaborate argument than merely a confusing reiteration and a throw away
line about the opposite argument leading to killing targets in Paris
and London. I
distil her arguments published in various scholarly articles in books and
journals and legal briefs, largely relying on her Pakistan study and her legal brief
to Congress.

 

(2004) "Ad
Hoc War," in Krisensicherung and
Humanitärer Schutz – Crisis Management and Humanitarian Protection
405

(2005)
"Enhancing the Status of Non-State Actors Through a Global War on
Terror," Journal of Transnational
Law
43:435

(2009) "Combatants
and the Combat Zone," University of Richmond Law Review, 43:845

(2010a) "The
Choice of Law Against Terrorism," Journal
of National Security Law

(2010b) "Unlawful
Killing with Combat Drones: A Case Study of Pakistan, 2004-2009," Notre
Dame Legal Studies Paper No. 09-43," republished in Simon Bronit (ed.) Shooting to Kill: The Law Governing Lethal
Force in Context

(2010c)
"Lawful Use of Combat Zones," legal brief to the Subcommittee on
National Security and Foreign Affairs, House of Representatives, Washington, 28
April

 

In the school of
thought on the international law of war to which O'Connell (as well as Roth and
Melzer) subscribe, O'Connell is more precise for she does not make the error of
insisting that belligerency per se is
restricted geographically to battlefields, but rather that drones drop bombs;
bombs may only be used lawfully in areas where armed hostile conflict is taking
place and international law does not recognize the right to kill with battlefield weapons outside an
actual armed conflict. Melzer goes even further and argues that weapons can be
used extra-territorially to a battlefield (257-261) provided the target is a
combatant in the armed conflict and is directly participating in armed
conflict. Thus, Roth has offered the most restrictive argument of all for those
who want to restrict the use of drones very severely.

 

O'Connell's
argument depends on a second premise: militant operations outside of
battlefield conditions are police not military operations. Police actions
require that warnings be issued before lethal force is used. The very nature of
the use of drones dropping explosives depends on surprise, so notice cannot be
given. Since the use of drones does not conform either to a police operation against
criminals nor a battlefield scenario, drones, though lawful for use in
Afghanistan by US forces, are not lawful for use in Somalia, Yemen, Mali or even
Pakistan, though there is more dispute over the last. The reference to London and Paris
are just red herrings.

 

David Post's 15
February Huffington Post article,
drawing on O'Connell, argued that the break with the law of war began with the
use of a predator drone over Yemen
in Bush's war on terror on 3 November 2002 when six suspected al-Qaeda terrorists
were blown up by a missile shot from a drone over Yemen. However, Post was wrong in
claiming that this was the first use of a battlefield weapon outside a
recognized war zone. The debate over the destruction of the battleship ARA Belgrano
in the Falklands War (Guerre de las Malvinas)
in 1982 hung on whether battlefield weapons were restricted to recognized war
zones or could be used outside the exclusion zone of 200 miles. The United States
has never recognized such a restriction. Nor has the UK. Ironically, in the case of the
Belgrano, evidence recently came to light from the British navy that the
Belgrano was not heading back to port when the missiles hit but in fact had
been ordered to sail towards the exclusion zone. (Thomas Harding, "RAR Belgrano
was heading to the Falklands secret papers
reveal," MercoPress, 26 December
2011) Nevertheless the issue remains – the Belgrano was struck by lethal
weapons and sunk outside the exclusion zone defining the battlefield.

 

The US
"Authorization for the Use of Military Force" in the war on terror,
subsequently amended by Barack Obama to the war on al-Qaeda and its affiliate,
authorizes the "use of all necessary and appropriate force against those
nations, organizations, or persons he (the President) determines planned,
authored, committed, or aided the terrorist attacks that occurred on September
11, 2001, or harboured such organizations or persons." The authorization
focuses on hostiles, not geographical areas.

 

This American
official opinion is backed by a number of eminent experts on the international
law of war. [For example, see
Nicholas
Rostow (2011) "Combating
Terrorists: Legal Challenges in the Post-9/11 World
, in Paul A. Pedoza & Daria P. Wollschlaeger (eds.) International Law and the Changing Character
of War.
The same two schools also are divided over who can be detained and
where. Cf.
Curtis A. Bradley & Jack L.
Goldsmith (2005) "Congressional
Authorization and the War on Terrorism," Harvard Law Review 118:2047; Robert Chesney (2011) "Who May Be Held? Military Detention Through
the Habeas Lens, British Columbia
Law Review
52:769] Essentially, subject to the usual constraints of just war theory re proportionality and discrimination, states have an inherent right to use lethal military weapons in a war of self-drefensewherever the enemy is to be found.

But that still leaves open the question whether attacking those six men in the car in Yemen "appropriate" force was used when a battlefield weapon was employed. There are two schools of thought. The English functionalist school (most just war and laws of war scholars and officials in the USA, Canada, the UK) focus on where the alleged enemy is, subject to certain debatable constraints. The human rights school centred in continental Europe, particularly Geneva, which suborn international laws of war as a subset of human rights norms, limit war to wide scale armed conflict in specific geographic zones with specific exceptions by some scholars. Generally, police operations are law enforcement operations applicable outside such areas and these operations are governed only by human rights norms. Reading Roth’s human rights polemic, one would never be aware that another school of thought was in contention or that there were divisions among the adherents to his own school of thought.

Jennifer Paskal, a Fellow at the Center on Law and National Security at the Georgetown University Law Center has written articles trying to overcome the divisions between the two schools. Her paper, "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone," forthcoming in The University of Pennsylvania Law Review 161 specifically deals with this impasse. She offers the argument, repeated by Roth, that focusing on hostiles instead of hot military zones would mean that Russia could go after Chechnyans anywhere in the world, including the U.S.A. This is as big a red herring as the Paris and London or Times Square arguments bandied about, for law permits but does not prescribe. There are other limitations imposed by prudence and not law.

Paskal in her effort ends up on the side of the functionalists for she recognizes both the need and the right of states to deal with enemies wherever they are found, and, therefore, that conflict follows the enemy, but extends that territory beyond hot zones to include territories where the rule of law cannot or is not being imposed. In fact, this merely encapsulates in proposed legal norms actual operating policies based on prudence. She "explicitly recognizes that the set of current rules, developed mostly in response to state-on-state conflicts in a world without drones, fail to adequately address the complicated security and liberty issues presented by conflicts between a state and mobile non-state actors in a world where technological advances allow the state to track and attack the enemy wherever he is found. New rules are needed, she argues. Drawing on evolving state practice, underlying principles of the laws of war, and prudential policy reasons, the paper proposes a set of such rules for conflicts between states and transnational non-state actors – rules designed to both promote the state’s security and legitimacy and protect against the erosion of individual liberty and the rule of law."

As Kenneth Anderson has written, "armed conflict law applied under conditions of hostilities, and although hostilities could and sometimes did follow the participants around to far-flung places, on account of technological limits and related practical reasons, armed conflict tended to have a de facto geographical space. Moreover, if one wanted to invoke the law of armed conflict in some place, the presence of combatants would not by itself suffice; someone would in fact have to undertake hostilities (including initiating them). So the conduct of hostilities, rather than geography as such, was the traditional touchstone – but in fact hostilities for all sorts of practical reasons tended to stick to geographical zones. The hostilities standard also had the virtue of keeping jus ad bellum issues (including sovereignty, neutrality, borders) distinct from the jus in bello issues (irrespective of whether ad bellum law was violated, the law of armed conflict would apply in the conduct of active hostilities)." [See his 2011 essay, "How We Came to Debate
Whether There Is A Legal Geography Of War," and his introductory framework
essay of Lawfare for the Naval
War College
workshop on the legal geography of the battlefield.] The norms guiding the conduct of war are merely catching up with changes in technology and the prevalence of asymmetrical wars against non-state actors.

What about Roth’s argument with respect to those who can be targeted. The authorization for the war against al-Qaeda and affiliates was wide open. The policy tended to focus on high level policy makers and medium level operatives. Roth would further restrict targets to those actually engaged in conflict, in effect, hostiles with a gun. This is far too restrictive and would outlaw capturing or killing bin Laden except by law enforcement authorities. On the other hand, targeting individuals based on patterns of behaviour (signature strikes) rather than individual identification has resulted in costly mistakes where civilians were killed and should be prohibited on the traditional rule of discrimination and minimizing collateral damage.

I will ignore the issue of immanent threat governing the actions of police officials given that I have already accepted that these are military and not civilian police actions. What about Roth’s fourth argument for prioritizing capture. As I indicated above, both schools agree on this preference. The real difference here in not over principle but over practice. In all cases, the authorities argue that capture was not feasible, including some cases – such as the infamous bin Laden case – where it was feasible. This is an argument over practice and not rules of war per se, but perhaps over process rules, the issue of Roth’s fifth and sixth arguments. The issue is not, in my mind, transparency, but the need for a legislative body to provide better worked out procedural guidelines for specific decisions but without setting up a proposed court of review or an equivalent ex ante review before the executive could take action. Legislative oversight could require the executive to set standards of threat and provide criteria for determining when such standards have been met. Legislatures can help provide normative frameworks. This is important and valuable, but legislative bodies should not partner in executive decisions. That legislative body should be empowered to define the constraints within which the policy should be carried out.

Finally, what about the argument that the use of drones should be assigned to the Pentagon and not the CIA because the former has a proper chain of command and a tradition of stronger accountability to the law? This issue is moot since the Obama administration has already announced that it intends to shift the implementation of drone use overwhelmingly to the Pentagon, a policy incidentally that was publicly supported by John Brennan both before and since he became head of the CIA.

Kenneth Roth is the Executive Director of Human Rights Watch. He has had enough on his plate defending himself against his former chair and the founder of HRW, Robert Bernstein and the record of bias on the Israeli-Palestinian conflict as well as by Islamic states on his stands in defence of Islamic women. He has also been criticized for being too defensive of American policy in Latin America. My concern is not with any of these. There is a great need, and possibly obligation as well, when presenting a case dealing with normative issues with respect to drones to clarify, analyze and then argue for a position and not simply serve as an advocate ignoring all other counter-evidence and arguments, variations and opponents.

[Category:
Ethics]

[Tags: drones,
just war, laws of war, geographical restrictions, target restrictions,
constraints]

Ethics and Drones Revisited19.doc

The Gatekeepers

I hope you have seen the Gatekeepers. It is a terrific film. My take on it is both attached and below. On this one I would love feedback.

Howard

The Gatekeepers 17.03.13

by

Howard Adelman

Yesterday evening, my wife, I and a friend went to see the Israeli documentary, The Gatekeepers. It had been nominated for an academy award for best documentary and had won the National Society of Film Critic’s award for best nonfiction film and the Los Angeles Film Critics Association Award for best Documentary Film. I had eagerly been awaiting its release since I missed it when the movie played at the Toronto Film Festival. It has been in the theatres for over two weeks, but illness has meant no movie going this March until yesterday evening. All three of us were mesmerized by this gripping and disturbing film, but we had very different responses to this documentary that intertwines historical footage of events since the Six Day War with extracts from interviews with the six heads of Shin Bet who served between 1980 and 2011. Shin Bet is colloquially known in Israel as Shabak, the domestic intelligence agency of Israel.

Our friend was both proud that Israel was such a strong democracy that the six heads Shin Bet would feel free to talk about their experiences and reflections. What other country had produced such a film? On the other hand, she found it impossible to imagine Palestinians ever being able to permit anyone, let alone anyone in authority, to even survive if they had been as forthcoming as those intelligence service leaders. On the other hand, in discussions of two Israeli movies of the five films that had been nominated at the Academy Awards for best documentary, 5 Broken Cameras (directed by directed by Emad Burnat and Guy Davidi) as well as The Gatekeepers (directed by Dror Moreh), Limor Livnat, the Minister of Culture and Sports in the outgoing Netanyahu cabinet, advised Israeli film makers that though she and others in authority opposed censorship, perhaps they would be well advised to practice self-censorship. “I, who am opposed to censorship, call on all of you to [conduct] self-censorship. After all, Israel is a democracy to be proud of but a democracy goes into self-defense mode when ranged against five broken cameras are thousands of families that have been destroyed by Palestinian terror. You do nothing about that."

Livnat’s comments were a response to criticisms by Israeli film producers, directors, screenwriters and documentarians of her initial comments on the two documentaries that too many Israeli movies made in the last few years, "libel Israel throughout the world". My wife had been very tense in the movie and came out feeling very defensive for Israel. While not advocating either censorship or self-censorship, she did experience the documentary as a polemical propaganda film of unbearable clarity that was very critical of Israel. And Dror Moreh says as much himself. He allows Yeshayahu Leibowitz, the Jewish theologian who criticized Israeli triumphalism and the occupation as far back as 1968 and whose criticisms are included in the film, to utter the words to which he subscribes. Even more powerfully, Yuval Diskin, the head of Shin Bet from 2006-2011, concurs that Leibowitz was 100% right.

It is clear throughout the film and in the many interviews Moreh has had since the film’s release, that this is where his sentiments lie. This is a message film. And that message is loud, clear and unequivocal. The occupation is destructive of the political and moral health of the nation. For Moreh, hopefully the movie will help serve to give new impetus to the peace process. In some interviews, he sees his own film in dramatic and prophetic terms. "If this film does not lead to change, there is no hope for Israel.” He clearly belongs to the camp that believes that Israelis are beyond saving themselves and supports an imposed solution. If Obama doesn’t “roll up his sleeves and use his power to make change, we are doomed.” However, as a filmmaker, Moreh’s voice in the movie as the interviewer is rarely heard. When it is, the voice is quiet and deferential even though persistent.

This does not mean that in intending his film to serve as a propaganda piece for change that Moreh did not practice self-censorship. For Moreh told the Huffington Post that Netanyahu participated in rallies in which Rabin was portrayed as a Nazi collaborator. Netanyahu never objected to those portrayals. In the segment of Yitzhak Rabin’s assassination, there are very brief clips showing Netanyahu associated with such rallies, but the implied critique of Netanyahu as sharing in the guilt of the assassination goes by virtually unnoticed. I would bet not 1 in 1000 viewers will spot the suggestion of Netanyahu’s complicity in the assassination.

On the other hand, it is impossible to ignore the obvious. What makes the film powerful as a propaganda film is that it is totally one-sided. The only agents shown to be initiating action are the Israelis. We see the carnage of the horrific bus bombings by Palestinian terrorists, but we do no see them as humans deliberately planning attacks against civilians. We see their homemade videos before they go on their suicide missions, but these belong in newsreels. In contrast, the Israeli perpetrators of some of the atrocities against the Palestinians are the key protagonists in the film. What is even more important, they are all portrayed in a confessional mode, offering sin and guilt sacrifices on the altar of modern cinema and outlining inadvertent sins of omission – such as their inability to anticipate the first intifada or to notice an obscure right-wing Orthodox Jew, Yigal Amir, who came out of left field to assassinate not only Yitzchak Rabin, the Israeli Prime Minister, but to shatter the hopes for a fragile peace process. Shin Bet was just unable, according to Carmi Gillon, to prevent Amir from "changing history". In contrast, Palestinian terrorists, even the worst of them, are objects rather than subjects or agents in the film. We never see them instructing their trainees, inculcating them with a fannatic ideology, portrayed as killing Palestinians on the spot who are alleged to be collaborators, or even how they inadvertently killed their own children when setting off rockets headed for Israel which then misfired, hit a nearby Palestinian home and killed many children. We never see them deciding to hide their tracks and place the blame on Israel.

I agree that the film is a tribute to the thriving democracy in Israel which still manages to foster open debate and pluralism in its portrayal of leading figures of the security establishment candidly criticizing their own actions and those of Israeli governments over the last thirty years with devastating comments precisely because those comments are uttered by hard headed pragmatic and ruthless heads of the domestic intelligence service. I also agree that the movie is a powerful propaganda film, though I do not agree that its message is very urgent and more challenging to conventional wisdom. Instead, insofar as it is a propaganda film, it is an expression of the once dominant, at least in a minority sense, different conventional take of the peace camp, not simply about the dead end in which Israel finds itself, but that the dead end is of its own making and the only way out requires the intervention of America imposing its will.

Unlike various reviewers, I did not see it as offering a history of the relations between Israel and the Palestinians from 1967 to 2011 or even of just their conflict, though certainly key highlights of that period were used in the film. I do not even think it offered a particularly harsh appraisal of the Israeli occupation. The film was certainly not a documentary about how Shin Bet operates and makes decisions, and it does not offer a "jarring insight into Israel’s defence establishment" as one headline of one review read. Although there is a great deal of material in the film that refers to decisions made and actions taken, we do not witness how the information is gathered and analyzed, how different scenarios are outlined and again analyzed and different options for options set out. Instead, I think the movie is primarily an educational film on the ethics of just war. But I warn readers that this appears to be my interpretation and so far I have been unable to find anyone who supports that angle. Because that message is not clear at all, and because the narrative is not chronological, nor are the six leaders clearly identified thoughout so that the viewer, unless very familiar with Israeli politics, would not be able to recognize which leader is which and when they served since there are no reminders after the opening, let me begin by clearly identifying each of the six leaders of the Shin Bet and the key episode and ethical dilemma that they faced:

General Theme: No strategy, Just Tactics

Name Dates Key event(s)

Avraham Shalom 1980-1986 killing of two suspected terrorists captured alive after bombing of No. 300 bus; forget about morality; torture

Yaacov Peri 1988-1994 capture of Jewish terrorists who plotted to blow up Dome of the Rock and al-Asqa Mosque on the Haram-al-Sharif or Temple Mount; Oslo Accords

Carmi Gillon 1994-1996 Missiles against terrorists vs suicide bombings in Tel Aviv; Nov. 4, 1995

Yitzchak Rabin assassination

Ami Ayalon 1996-2000 Definition of Victory: to see you suffer

Avi Dichter 2000-2006 assassination of Yahya Ayyash

Yuval Diskin 2996-2911 failure to blow up Hamas leadership (sterile operation)

One way of approaching these incidents and the leaders is whether they achieved successes or failures. There were clearly specific successes: the decline in terrorism, the prevention of the Jewish terrorists from blowing up the al-Aqsa Mosque, a series of clean hits, the process of involving and recruiting informers and of acquiring human intelligence. Those continue. This morning I read that Shin Bet had foiled a Hevron terrorist cell led by an operative released in the 2011 Shalit prisoner-swap. On the other hand, there were clear failures: the killing of two suspects captured alive in a 1984 bus hijacking that led to the resignation of Shin Bet director Avraham Shalom and threatened to bring down the government of Prime Minister Yitzhak Shamir, the inability to anticipate the first intifada, the inability to prevent the Rabin assassination, the failure to destroy the Hamas leadership in Gaza when there was a clear target and solid information. But the film maker does very little to explore the reasons for success or failure. What the director does focus upon is the moral issues at stake in each incident.

The movie is about the relationship of intelligence to politics within a moral frame. The moral frame used in that of just war theory. There is no question that the 1967 Six Day War was just. It is one thing for a country to defend itself against Arab states around it which declare war on Israel. It is another to conquer and hold the territory captured in that war – the Sinai, Gaza, East Jerusalem, the West Bank and the Golan Heights. The movie does not analyze the case and come down on the assessment that occupation was immoral. It presumes that immorality and directly or indirectly gets every one of those heads of intelligence to explicitly or implicitly concur with that judgement. For the fundamental moral issue is whether a war fought decade after decade to continue the occupation is a just goal. Just wars require just purposes. The conclusion presumed by quotes from Leibowitz is that it was and is not just. Not only because of what it does to the one million Palestinians being ruled by Israel. But because of what it does in corrupting the Israeli soul.

Dror Moreh could have quoted Hebrew University historian, Jacob Talmon, as well. But he mostly conveys the message that the continuation of the occupation was carried out because of an absence of a goal rather than the deliberate policy to occupy the West Bank. As Avraham Shalom put it, there were tactics but no strategy. Only Yitzchak Rabin is excused from this failure in justice. He was the only politician to genuinely pursue peace. Begin did it with the Egyptians but he is largely ignored. Sharon unilaterally withdrew from Gaza but he is given a very ambivalent assessment. Shamir is presented as totally indifferent to the plight of the Palestinians, but Moreh could have treated him much worse by portraying his personal history of terrorist activities. Perhaps, Benjamin Netanyahu comes off worst of all.

In the end, it is not the Palestinians that these ruthless leaders of the intelligence service feel so sorry about as the way the intelligence service was used and abused by politicians who abandoned their own duty to protect the service so dedicated to serving them and the Israeli people whenever a crisis arose. Politicians only want to hear binary options and not various shades of grey. They want to make decisions – Yes or No. When mistakes are made or when the consequences of some decisions get too hot, it is the intelligence service that is left holding the bag.

The film is structured in terms of a series of themes. This theme of the overall justice of the occupation and the way the intelligence service is treated is the main thrust of the opening episode and the one theme referred back to in every other episode. But the movie opens with a much simpler just war moral equation – the responsibility of fighting the war over the occupation in just ways. One of those principles requires that innocent civilians be protected as much as possible from being injured and killed as collateral damage when terrorists are directly targeted. That is a decision largely within the purview of the Shin Bet and with some exceptions, as in the opening scene, the Shin Bet performs commendably. It may be an unjust occupation – quite aside from whether it is illegal or not – but the Shin Bet tries to fight it with just means. Or at least since the reign of Avraham Shalom over Shin Bet! It is clear that he has little regard for the just war protection of terrorist captives.

The film seems to have two different moral narratives along this line. The immorality of means is portrayed as starting in 1980 when Avraham Shalom was in charge from 1980-1986. In 1984, what became known as the Kav 300 affair took place. The details were eventually uncovered by the Landau Commission which henceforth set down strict guidelines for the treatment of prisoners. Twenty-nine years ago on 12 April 1984, four Palestinian terrorists from the Gaza Strip boarded a regular Egged bus (#300) heading south and hijacked the bus. At Ashdod, they let a pregnant Israeli get off the bus. She alerted the Israeli authorities about the hijacking. The army set up road blocks. The bus smashed through two sets of roadblocks until the army shot out its tires when the bus had reached a Palestinian refugee camp in Gaza, Deir el-Balah, ten miles north of the Egyptian border. In the standoff, the hijackers demanded to exchange the occupants of the bus for the release of 500 Palestinian prisoners. The Chief of Staff of the IDF, Moshe Levi, the Minister of Defence, Moshe Arens, and the Director of Shin Bet at the time, Avraham Shalom, had all reached the scene. At 7:00 a.m. the next day, a special unit of the IDF under Yitzchak Mordechai – later to become infamous for other matters – stormed the bus, shot and killed two of the four hijackers through the windows and captured two of the hijackers alive. Only one passenger, Irit Portugese, a 19 year old Israeli soldier, who was a passenger on the bus, was killed, and she died as it turned out by "friendly fire". Otherwise, it appeared to be a triumphant operation.

The movie omits all that detail. It focuses on the pictures of the two captured terrorists who are alive and then the report that they died in the attack. As Avraham Shalom testifies in the film, he was informed that they had been terribly beaten by Israeli soldiers once in captivity and he personally authorized Ehud Yaton, the Shin Bet chief of operations at the scene, to put them of their misery when he saw the condition of the captives. Yatom took the badly wounded captives elsewhere to another site and smashed their heads in with a heavy rock.

Initial reports in Israel reported that all four were killed when the bus was stormed but The New York Times three days later ran a story that told of the two hijackers captured alive with the photographs we see in the movie. One Israeli newspaper got around the censors by reporting The New York Times story. Needless to say, "the shit hit the fan". It is that aspect and only that aspect of the story and the political consequences that the movie covers. It does not deal with the decision to blow up the houses of the families of the hijackers after the incident. It does not deal with the attempts to censor Uri Avnery, the editor of the weekly, HaOlam Hazeh, that first ran a picture of the hijacker in captivity and alive. The focus is on the illegal and totally unethical treatment of the two captured prisoners who were killed in cold blood. The film did not replay the television tapes at the time of Moshe Arens and IDF, Chief of Staff, Raphael Eitan, boasting that terrorists who hijack buses cannot expect "to come out alive". The movie does refer to the arrest of and trial of Brigadier General Yithak Mordechai (and eleven other officers) for kicking the two prisoners to death. They were found not guilty.

The movie does not tell us that in 1986, the Deputy Chief of the Shin Bet, Reiven Hazak, went with two other officials, Rafi Malka and Peleg Raday, to see then Prime Minister and current President, Shimon Peres, to tell him that Shalom had not only ordered the fatal blow but had coordinated the testimony of the witnesses to undermine the prosecution case. The three official whistleblowers were fired from the Shin Bet. The story then went into broad public circulation. Attorney General Yitzhak Zamir launched an investigation. When he refused to halt that investigation, he too was forced to resign. Eventually a public inquiry was ordered and Shalom himself had to resign. It seemed clear, and this is suggested in the movie, that Yitzchak Shamir, the Prime Minister at the time of the incident, had approved Shalom’s decision before it was carried out. The matter was fully aired in a television mini series in 1987 called Kav 300, but Moreh chose to focus on only three items – the killing of the captives, Shalom taking the hit for a political decision and Shalom’s opinion that when dealing with terrorism you can forget about morality. The film does not remark on the fact that subsequent heads of Shin Bet had abandoned the latter position though it is clear from their comments. This belies Shalom’s cynical view of the downward spiral of the Zionist dream and his amoral view towards the treatment of captives.

In Yaacov Peri’s period as director of Shin Bet from 1988-1994, the big political story was the Oslo Accords The big intelligence story was the Jewish terrorist plot to blow up Dome of the Rock and al-Asqa Mosque and the Dome of the Rock on the Temple Mount, the messianic vision of the Jewish terrorists and the expertise of their explosives genius,

Menachem Levi. In Avi Shlaim’s book, The Iron Wall – Israel and the Arab World, he quotes Uzi Narkis, the commander of the Israeli forces that captured the Temple Mount in 1967, as having been urged by Chief Rabbi Shlomo Goren to blow up the Mosque of Omar. As I wrote earlier, the army did seize the keys to the al-Masjidul or Moroccan Gate and demolished the Maghariba and al-Sharaf Arab neighbourhoods to make room for the space in front of the Western Wall and the reconstructed and resurrected Jewish Quarter.

There were previous terrorist attacks on the Mosque, one by an Australian Christian Zionist, Michael Dennis Rohan, in 1969 who set a fire that gutted the ancient wood and ivory minbar of Sallahudin. On 2 March 1982 a Jewish Talmudic student attacked the mosque but was subdued by Muslim guards. On 11 April 1982, Allen Harry Goodman, an IDF soldier, went on a shooting rampage on the Temple Mount with his army-issued M-16 and killed a mosque guard and wounded others before being subdued; he received a life sentence. In October 1982, Yoel Laerner, a follower of the extremist, Meir Kahane, tried to blow up the Dome of the Rock but was arrested. On 10 March 1983, 45 Jewish terrorists who were followers of Rabbi Meir Kahane planned a military raid, but they were intercepted before the plot could be executed; they were tried but not convicted. On 1 August, 1984, a Jewish terrorist plot to blow up the Mosque was thwarted by the Al-Aqsa security guards; Yosef Zeruya was sentenced to only three years in prison for the plot. On 8 October 1990 Jewish extremists tried to lay the cornerstone for a Jewish temple in the Haram al Sharif plaza and in the protests by the Palestinians, the border guard killed 22 Palestinians and a judicial inquiry under Israeli Judge, Ezra Kama, later determined that it was the Israeli police who provoked the violence. None of these Jewish terrorist efforts were nearly as extensive or as well coordinated or would have been nearly as devastating as the plot broken up and discussed in the movie. The Shin Bet and many political analysts, in a view echoed by Yaacov Peri, believe that if such a plot had been successful, it would have set off a war between Muslims the world over and Jews. What was most revealing in the film was the charge that the plotters network extended to the highest levels of politics and the revelation that, after serving relatively light sentences, they were freed. But this is mentioned as an aside and not explored.

Carmi Gillon served as head of Shin Bet from 1994-1996 until he resigned over the Shin Bet’s failure to stop the Rabin assassination on 4 November 1995 at a rally in support of the Oslo Accords. What is not revealed in the film is that the assassin, Yigal Amir, had been under Shin Bet surveillance but the agent assigned to him had concluded that Amir did not pose a threat to the Prime Minister. Though it is widely believed that Rabin’s assassination totally undermined the possibility of a peace agreement based on the Accords, the evidence in my mind does not support such a contention. In fact, Rabin`s terms were far less generous than Barak`s or Olmert`s and the latter two were also unable to conclude a peace agreement.

With the last three heads of Shin Bet, we return to Palestinian terrorism and the ethics of conducting a just war against terrorism. Ami Ayalon, who served as director from 1996-2000, had an epiphany when a captured Palestinian terrorist told him that their definition of victory was not a conquest of Palestine but seeing Israelis and Jews suffer. He realized that such a war could never be won. It was one thing to hold onto occupied territories but to do so at the cost of a peace agreement was clearly immoral. What was not put in the film was that Ami Ayalon had rounded up his three predecessors in 2003 to sign a letter to the Prime Minister strongly supporting a peace agreement based on a two state solution.

Avi Dichter who was director of Shin Bet from 2000-2006 oversaw the organization when the first intifada broke out and ordered the assassination of Yahya Ayyash, the Hamas engineer and explosives expert, by means of an explosive cell phone. Though it is mentioned, the intricate weighing of targeted killings versus the political costs and dangers to nearby civilians is mentioned but inadequately discussed. Similarly, the great success in drastically reducing terrorist attacks on Israel and what went into that receives insufficient attention and no analysis. Nor does Avi Dichter`s subsequent career as a member of Kadima and the Knesset and his role as Minister of Internal Security and the reforms he put in place. Yuval Diskin who ran Shin Bet from 2006-2011 discussed the opportunity and failure to blow up the Hamas leadership when it was decided to use a 1/4 ton bomb instead of a full 1 ton bomb knowing that if the leadership were on the first floor they would escape death but if on the second floor they would all be killed. This was done to minimize collateral damage that would have been the inevitable result of using a one tone bomb. The effort to conduct a "sterile operation" in this case meant the sacrifice of a success in favour of a strict application of the just war norm demanding minimal intentional risk to civilian lives.

The film ends where it begins with Ayalon`s reference to a long corridor but one which does not lead to a door behind which a leader sits in his office and makes these momentous decisions. According to Ayalon, there is no door and no one to take responsibility for an occupation that is sapping the moral strength of Jewish Israelis. This metaphorical story echoes a sentiment he uttered earlier in the film: "We don’t realize that we face a frustrating situation in which we win every battle, but we lose the war." My own sense from the film is that the occupation, however bad it has been, especially for the Palestinians, has very much sharpened the moral acuity with which Israeli members of Shin Bet have been making their decisions, a message that is the very opposite to the one overtly conveyed by the film.

The Gatekeepers17.03.13.doc

Obama 19.Drones – the Normative Debate.27.02.13

Obama 19. Drones: The Normative Debate 27.02.13

by

Howard Adelman

Al Qaeda and its associated forces, that is a co-belligerent organized force committed to fight alongside al Qaeda against the United States and its allies even if the primary goals differ, have enough coherence to be called an enemy and enough intent to attack the United States, its assets and its allies so that the violent conflict with them can be called a war. The ethical and legal issue is whether the conduct of that war, particularly in the use of drones, follows the norms of just war theory.

One can find a profusion of writing criticizing the drone program for being illegal and unethical as well as counter-productive. Most of that writing is polemical though there are a small number of legal critiques. As an example of a polemical critique, read Saijad Shaukat, "Killing Civilians: Obama’s Drone War in Pakistan," Global Research, 14 December 2012: "these strikes are illegal, unethical and a violation of Pakistan’s sovereignty as well as the UN Charter." The denunciations contain neither evidence nor arguments and are simply critical opinions.

Ignoring opinionated screeds, broadly speaking, the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. The assumption all around is that a war against the terrorists who perpetrated or who are allied with the perpetrators of 9/11 is a just war for a just cause and a just war if proportionate to the continuing harm being carried out. The questions are about the conduct of the war, in this case the conduct of employing drones from which missiles can be sent to assassinate individual members of the enemy.

The question should not be about targeting per se, though some seem to think that is questionable. The use of lethal force against known individuals who are members of an enemy group has long been regarded as legal and in accordance with the laws of war. See Harold Koh, "International Law and the Obama Administration," American Society of International Law, Washington, 25 March 2010; Koh, now Dean of the Yale Law School, was then Legal Adviser to the State Department and offered the first legal justification for the use of drones by the Obama administration in response to a request from Philip Alston, the UN special rapporteur on extrajudicial killings who claimed that the use of drones by the CIA, not per se, butabsent appropriate cautions and accountability mechanisms, would be illegal under international law.

There are associated groups allied with al Qaeda that the United States has not yet attacked. Jabhat al-Nusra is one. It constitutes the Islamist faction of the rebel group attempting to overthrow the Assad regime in Syria. Recently it took responsibility for the Damascus bombings and for the rout the day before yesterday of the Syrian army from the Golan Heights. (See Salem Al-Dimashki, "Syria’s Druze Grapple With Jabhat al-Nusra,", ALMONITOR, 8 February 2013) Israel now faces extremist Islamist forces not only in Gaza (Hamas) and in Lebanon (Hezbollah), but now on its Syrian border. The great fear is that Jabhat al-Nusra will gain access to Syria’s stockpile of chemical weapons.

In war, chemical weapons are now banned from use. Weapons that are used must be authorized by a proper authority, be motivated by the right intentions, must have a reasonable probability of success, must be proportionate in the harm done relative to the good in eliminating enemies – this is often referred to as the principle of discrimination since all efforts possible must be in place to minimize collateral damage to civilians while still allowing the military mission to go ahead. Finally, the initiative must be employed as a last resort and, as we shall see, this norm is the one most often misinterpreted. It is rare in public life that a policy is debated primarily in just war terms, so I will take enough space to deal with the various issues.

Right Authority

Usually right authority is taken to mean the authority source that tells a soldier to implement the decision – that is the source of the top-down command. In the case of the Obama administration, the leadership accepted the challenge to establish and make sure that the democratic voter also supported their use of drones in the war against the Islamic extremists. They went further and thought that the public in the countries in which they were being used also should support America’s use of drones and should not get caught up in a mistaken belief that drones were employed careless of the harm they do and can cause. John Brennan in his 2012 speech at the Woodrow Wilson Centre acknowledged "that we, as a government, along with our foreign partners, can and must do a better job of addressing the mistaken belief among some foreign publics that we engage in these strikes casually, as if we are simply unwilling to expose U.S forces to the dangers faced every day by people in those regions." This latter is not really an ethical norm that can be attached to the agent utilizing the weapon, but is really only one of the success measures. On that measure, as can be seen in the last blog, the Obama administration has not been successful. However, Brennan viewed the fulfillment of that norm as dependent on America taking due diligence to avoid or minimize civilian casualties and fulfilling the principle of discrimination. As Brennan insisted, "there is absolutely nothing casual about the extraordinary care we take in making the decision to pursue an al-Qaida terrorist, and the lengths to which we go to ensure precision and avoid the loss of innocent life."

1. Public Opinion

61% of American voters approve the use of drones to target Islamist radicals. 18% are opposed. (Huffington Post, "Omnibus Poll" 10-11 January 2013) though by a margin of 2:1 they regarded targeting American citizens who had joined al Qaeda abroad as illegal. (Fairleigh Dickinson Poll, 7 February 2013). That latter poll were confident in the military carrying out such attacks (75%) but 10% less, 65%, supported making the CIA responsible for the CIA attacks. Thus, except for targeting American Islamists, the administration enjoys strong support for using drones for such purposes and assigning that task to the CIA even if they would prefer that the military carry the responsibility.

Support from the public of the countries in which drones are being used is not required for their use to be legally and ethically justified. For, as I indicated in my last blog, America is woefully lacking in such support. However, if drones create a backlash in the countries that host Islamicist warriors, that is nothing compared to the backlash against American boots on the ground. The strategic, but not ethical or legal requirement, could be the principle of using a method of fighting that, if at all possible, minimizes a local backlash.

2. Political Authority

John Brennan defended the strategic wisdom of using drones.

Targeted strikes are wise. Remotely piloted aircraft in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise choice because of time, when windows of opportunity can close quickly and there just may be only minutes to act. They can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. In addition, compared against other options, a pilot operating this aircraft remotely, with the benefit of technology and with the safety of distance, might actually have a clearer picture of the target and its surroundings, including the presence of innocent civilians. It’s this surgical precision, the ability, with laser-like focus, to eliminate the cancerous tumor called an al-Qaida terrorist while limiting damage to the tissue around it that makes this counterterrorism tool so essential.

The geographic issue is much more complicated than Brennan implies for the issue is not simply about the difficulty of the terrain, but that the target is not living in an area of battle but located in a region in which there are no ostensible hostilities. Such objections were made by Mary Ellen O’Connell from the University of Notre Dame Law School who served as chair of the International Law Association (ILA) on its Committee on the Use of Force. (See the interview with her posted on the International Relations and Security Network on 20 February 2013. http://www.isn.ethz.ch/isn/Digital-Library/Articles/Detail/?lng=en&id=159629)

Brennan in his ethical as opposed to his strategic defence of the use of drones went beyond the simple argument that Barack Obama as Commander in Chief of the United States forces was fully authorized to use drones. Congress passed the AUMF, the Authorization for the Use of Military Force one week after 9/11. (Pub. L. No. 107-40, 115 Stat. 224 2001) The congressional authorization mandated the use of all necessary and appropriate force against those nations, organizations, or persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Brenner also said that in such authorization, Obama was accountable to Congress. "Ensuring the ethics and efficacy of these strikes also includes regularly informing appropriate members of Congress and the committees who have oversight of our counterterrorism programs." He credited oversight with also improving the effectiveness of the use of drones, but since he did not explain himself, and since it is difficult to see how a committee could help make a weapon more effective, I have no idea what he meant by that claim.

In addition to the formal status of the president in the governing structure of America, Brennan required subjecting that authority to a system of accountability in response to a subsequent op-ed in The New York Times by Mary-Ellen McConnell (6 February 2013) who implied that this was the key weak link in the Obama administration’s justification for the use of drones. (See her 2012 book, What is War? An Investigation in the Wake of 9/11. I will note that McConnell, whatever her legal reasoning and her excellent bona fides as a lecturer on the subject to members of the US defense department, was just totally off base in that op-ed in claiming that Brennan has refused "to openly discuss the legal basis for America’s campaign of targeted killings of terrorism suspects." In my reading, he gave speech after speech in 2010 and 2011 doing precisely that, as did other members of the administration. More to the point, though it is a joy to read impassioned critiques, and while I would have loved to be convinced, I personally found her criticisms not only to be very unrepresentative of the vast majority of legal scholarship but simply unpersuasive. Further, she did what many others critics have done, confused human rights protections with just war law and ethics. The two are radically different.

Brennan then introduced a third factor that buttressed his case for rightful authority – the extreme care in the process of making the decisions. "This is the seriousness, the extraordinary care, that President Obama and those of us on his national security team bring to this weightiest of questions: Whether to pursue lethal force against a terrorist who is plotting to attack our country."

But what if the drone attack is not against a named terrorist but against a group who seem to be demonstrating behavioural patterns as if they were terrorists, the so-called "signature strikes"? (Cf. Cora Courier and Justin Elliott "Drone war concerns go far beyond the killing of American citizens," Pro Publica 26 February 2013) How can suspicious behaviour justify the use of lethal force by unmanned drones? Further, what about the authority for killing American citizens abroad by using drones that the American public does not seem to support? Four American citizens have been killed abroad by the use of drones compared to 2,600-3,000 militants and civilians. Kmal Derwish who was killed in a drone attack in Yemen, the first drone attack outside of Afghanistan, was an American citizen. He was the first of four American citizens killed in drone attacks. As I wrote yesterday, Anwar al-Awlaki and Samir Khan, both American citizens, were killed in Yemen on 30 September 2011. Two weeks later, the fourth American citizen, al-Awlaki’s son, Abdulrahman, was also killed.

By what legal authority does the government justify such assassinations? I should note that Jeh Johnson found the use of the term "assassination" to be repugnant, both legally and because of psychological associations with the murders of President Kennedy, Robert Kennedy and Martin Luther King. I would strongly defend its use for it accurately describes in ordinary language what takes place even if it is a term that would not want to be employed by a defence attorney in a legal case defending such killings. Perhaps I am more comfortable with its use because I am a Canadian.

Brennan answered the latter question of killing American citizens abroad by citing Attorney General Holder’s legal brief. "When that person is a U.S. citizen, we ask ourselves additional questions. Attorney General Holder has already described the legal authorities that clearly allow us to use lethal force against an American citizen who is a senior operational leader of al-Qaida. He has discussed the thorough and careful review, including all relevant constitutional considerations, that is to be undertaken by the U.S. government when determining whether the individual poses an imminent threat of violent attack against the United States." I will discuss that justification in the next section.

3. Legal Authority

John Brennan in his 2012 Woodrow Wilson talk summarized the legal defence of drone attacks as follows:

First, these targeted strikes are legal. Attorney General Holder, Harold Koh, and Jeh Johnson have all addressed this question at length. To briefly recap, as a matter of domestic law, the Constitution empowers the president to protect the nation from any imminent threat of attack. The Authorization for Use of Military Force, the AUMF, passed by Congress after the September 11th attacks authorized the president “to use all necessary and appropriate forces” against those nations, organizations, and individuals responsible for 9/11. There is nothing in the AUMF that restricts the use of military force against al-Qaida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

The full legal justification can be found in the Department of Justice White Paper released by NBC News.

(http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf)

Those targeted can be a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans. Three conditions were specified:

1) the determination is made by an informed high-level official of the U.S. government that the target poses an immanent threat of violent attack against the United States;

2) capture is infeasible;

3) the operation would be conducted in a manner consistent with applicable law of war principles.

The Presidential authority was sanctioned by international law and the law of defence, Congressional authorization "to use all necessary and appropriate military force" and his own role as Commander-in-Chief and his sworn duty to protect the country. (Cf. Charlie Savage and Scott Shane, "Memo Cites Legal Basis for Killing U.S. Citizens in Al Qaeda," The New York Times, 5 February 2013) Not included in the memo is any reference to the 2006 endorsement by the U.S. Supreme Court that determined that the United States is in an armed conflict with al Qaeda. The legality has been backed by all three branches of government in the United States.

The memo referred to indicated that the lawfulness of the use of lethal force in a foreign country would require the consent of the host nation’s government in order not to offend the principles of sovereignty and neutrality if the host nation is unable or unwilling to suppress the threat posed by the individual targeted. But as I indicated yesterday, Pakistan, at least in public, vociferously criticized the drone campaign, though in noticeably slippery language.

Aren’t American citizens protected by the Fourth Amendment on the rights of citizens and the prohibition against unreasonable seizures and the due process clause of the Fifth Amendment? How could they be targeted? Killing American citizens abroad is not illegal according to the leaked legal brief citing Mathews v. Eldridge since the individual’s interest in protecting his/her own life would be offset by the United State’s obligation to forestall the threat of violence. Such an interpretation has evidently been upheld in a series of Supreme Court decisions beginning with Hamdi, 542 U.S. at 518. The Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in al Qaeda or its associated organizations who posed “an imminent threat of violent attack against the United States.” The key criteria are:

  • Is the individual a senior operative?
  • Is the threat immanent? A threat would be considered immanent even if the individual were engaged in planning operations to kill Americans. Immanence in the document is defined to include: the relevant window of opportunity; the possibility of reducing collateral damage to civilians and: the likelihood of heading off future disastrous attacks on America.
  • The threat does not have to take place on a hot battlefield for there is no geographic limit when the enemy is involved in a non-international (i.e. non-inter-state) armed conflict.

(The 16-page classified legal memo leaked through NBC News is also available online at other sites. Cf. http://openchannel.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite)

Whether such a legal briefing holds up in the courts, it did seem to settle down much of the furor and cries for transparency concerning the legal justification for drone attacks. (Cf. Sarah Holewinski, "Drones: An Outlier in a Transparent Presidency, Politics, 19.01.2013) Further, although the leakage of the legal justification did seem to quiet down the large number of Americans critical of killing American citizens abroad, it served to raise new questions about deliberately targeting low level operatives or for targeting behaviour rather than identity-based targets, the so-called "signature strikes".

Another legal justification was offered by the Pentagon General Counsel, Jeh Johnson, in his speech at the Oxford Union on 30 November 2012. The speech, "The Conflict Against Al Qaeda and its Affiliates: How Will It End?" (Johnson at Oxford) has been published online by Benjamin Wittes on "Lawfare". Benjamin Witte is a Senior Fellow in Governance Studies at Brookings and co-directs the Harvard Law School-Brookings Project on Law and Society. (http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/) Johnson’s job is to ensure that everything the Defense Department does is consistent with U.S. and international law. I will leave aside for the moment whether the defence he offered applies to CIA operations, but it is generally assumed that the legal doctrine binding the military is much stricter than one binding the CIA. On 22 February 2012, Jeh Johnson also gave the Dean’s Lecture at Yale Law School entitled, "National Security Law, Lawers and Lawyering in the Obama administration. (Jonson at Yale) I will now cite both speeches and suggest they are fully consistent with the 16-page leaked memo. There is also a forthcoming conference at the Notre Dame Law School on "The Ethical, Strategic and Legal Implications of Drone Warfare" 19-21 March 2013.

In his account, Johnson indicated that the US had signed agreements with the Afghan government on "strategic operations". He said nothing about an equivalent agreement with the Pakistan government. Johnson also indirectly referred to Obama’s decision to rename the war as a war against al Qaeda and its affiliates and not the abstract category, Bush’s "War on Terror". "We have made clear that we are not at war with an idea, a religion, or a tactic. We are at war with an organized, armed group — a group determined to kill innocent civilians." The definition specifically excludes journalists, activists or propagandists solely engaged in those pursuits or even self-radicalized terrorists inspired by al Qaeda for they remain civilian suspects subject to criminal law and are not part of an armed force. The targeted individuals have to be part of an armed force and they are attacked in a way consistent with the law of war and its principles of proportionality, necessity and distinction. Such a war will end only when a tipping point is reached that al Qaeda and its affiliates are degraded to such an extent that it is no longer to be regarded as an effective military force but only clusters of bedraggled terrorists.

In my review of the legal justification of Obama’s drone policy that involves what I already have argued is a conventional even if transforming mode of arms delivery to nonconventional targets, I am convinced that is arises from a healthy and robust debate among legal professionals rather than a pre-packaged response to fit a predetermined policy. I have pointed out where I find lacunae – deliberately attacking low level targets or signature strikes. However, in general, the reasoning is careful and credible, pragmatic and carefully delineated. The courts will determine whether the rationale is definitive.

Whatever the results, the rule of law is once again the supreme authority in the United States in generals and governs the use of drones.

Finally, when considering lethal force I am of course mindful that there are important checks on our ability to act unilaterally in foreign territories. We do not use force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints. According to the Obama doctrine, the United States of America respects national sovereignty and international law.

4. Ethical

In President Barack Obama’s speech in Oslo accepting the Nobel Peace Prize, the president said that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” And he added: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength.” This reflected his approach to broader questions regarding the use of force and the importance he placed on the use of force conforming to international legal norms.

John Brennan insisted that targeting enemies with drones was not only legal but ethical as well.

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value. In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just.

If we begin with the use of lethal force via drone attacks, the use of drones armed with missiles is considered as conforming to the principle of necessity if those firing the drones are properly trained and, after careful consideration of the evidence, conclude that the individual targeted poses a significant threat to U.S. interests and the action is necessary to prevent future attacks and to mitigate an actual ongoing threat to save American lives. The threat cannot be an abstract one so the individuals targeted must be either high level leaders who initiate such plans or mid-level leaders either with expertise to produce the explosives or train others in their production or responsible for the execution of those plans. Thus, the threat must be a significant one. The targets cannot be low level militants, though low level militants can be killed in such attacks.

The strike against a particular individual must be intended to prevent an attack before it can be carried out or to disrupt the planning process in preparing such attacks. There is one other criterion in applying the "necessity" criterion: capture must be the preferred option, not elimination. And it is on this factor that the Obama program of using lethal drone attacks is most vulnerable to criticism. The administration has simply not justified its actions in showing that in every case capture was not feasible and lethal drones had to be used. Using the drones did not make their use illegal, but unless the option of capture was truly weighed, then the actions are unethical. With respect to Zero Dark Thirty and CIA objections to mis-portrayal in the film, the argument was never made that the account of bin Laden’s killing was basically inaccurate. There is no explanation of why he was not captured alive since he was by all accounts not armed when he was killed and the Americans were never able to possibly probe and find what intelligence might have been in his head. The Americans did capture Ahmed Warsame, a member of al-Shabaab in the Arabian Peninsula when he was traveling from Yemen to Somalia, but he stands out as a rare exception rather than the more predominant course of action.

What about the principle of distinction that requires attacks to be limited to military objectives. Civilians may be killed in accordance with the principle of proportionality which I have yet to discuss, but civilians and civilian structures should not be the object of the attack. "Signature strikes" pose a challenge to such a principle since by their nature, the object of the attack lacks clarity. Noticing a pattern of behaviour that accords with a militant group’s behaviour is precisely why signature strikes should not be authorized. The evidence is insufficient to support the objective and, in addition, the risk of collateral damage and breaking the principle of proportionality is too great.

The third principle of proportionality requires that any innocent civilian life lost in such an attack, or anticipated to possibly be sacrificed, must be in proportion to the military objective to be achieved. Put bluntly, the higher the value of the target, the greater the loss of civilian lives that can be tolerated. This cannot be interpreted to mean that one can simply ignore collateral damage to civilians or civilian property. Quite the reverse! In all cases, the greatest effort must be taken to minimize and mitigate harm to civilians and their property. It just means that after taking such care, the damage of civilians and their property cannot be excessive in relation to the target of the attack.

John Brennan argues that, "we only authorize a strike if we have a high degree of confidence that innocent civilians will not be injured or killed, except in the rarest of circumstances. The unprecedented advances we have made in technology provide us greater proximity to target for a longer period of time, and as a result allow us to better understand what is happening in real time on the ground in ways that were previously impossible. We can be much more discriminating and we can make more informed judgments about factors that might contribute to collateral damage."

This suggests that the more technology advances, the standards for proportionality increase so that we should expect fewer and fewer civilian casualties per militant killed. Brennan has even implied an almost zero tolerance for civilian casualties which I consider an impossible standard. "[T]here have indeed been occasions when we decided against conducting a strike in order to avoid the injury or death of innocent civilians. This reflects our commitment to doing everything in our power to avoid civilian casualties, even if it means having to come back another day to take out that terrorist, as we have done previously. And I would note that these standards, for identifying a target and avoiding the loss of innocent — the loss of lives of innocent civilians, exceed what is required as a matter of international law on a typical battlefield." According to the stats, they may have approached those standards in 2012, but I remain sceptical.

Brennan insists that, " despite the extraordinary precautions we take, civilians have been accidentally injured, or worse, killed in these strikes. It is exceedingly rare, but it has happened. When it does, it pains us, and we regret it deeply, as we do any time innocents are killed in war. And when it happens we take it very, very seriously. We go back and we review our actions. We examine our practices. And we constantly work to improve and refine our efforts so that we are doing everything in our power to prevent the loss of innocent life. This too is a reflection of our values as Americans." This suggests a new modification to the discrimination and proportionality rule – that when mistakes are made, reviews must follow to see what lessons can be learned to prevent collateral damage in the future.

CONCLUSION

Steve Coll ended his New Yorker piece, "Name Calling" (4 March 2013) with the following paragraph: "Jihadist violence presents an enduring danger. Its proponents will rise and ebb; the amorphous threats that they pose will require adaptive security policies and, occasionally, military action. Yet the empirical case for a worldwide state of war against a corporeal thing called Al Qaeda looks increasingly threadbare. A war against a name is a war in name only." Obama had replaced Bush’s War Against Terror with a war against al Qaeda and associated forces that seems to be a war without end.

I believe Jeh Johnson provided a reasonable answer to Steve Coll for defining that end. I also think that the various justifications for the use of drones to target enemies have answered such questions as clarifying why the war against al Qaeda counts as an armed conflict, that the issue of "immanent threat has been clarified, and made clear that the authorization for drone attacks must be under the direct authorization of the Executive Branch but without clarifying why the CIA rather than the armed forces have been charged with the task of implementation, though it has been suggested that it is a combination of their more direct access to eyes on the ground and the CIA’s greater nimbleness, practical matters of delivery rather than an assessment in terms of legal and ethical issues. The Obama administration has insisted that drone attacks cannot be carried out in countries where the ruling government objects to such attacks as an infringement on its sovereignty, but has not clarified the process whereby such objections can be registered. In fact, the administration has suggested that the sovereign state must explicitly concur in permitting such attacks, but given the behaviour of Pakistan, it also means that the sovereign state can publicly disavow any such approval.

According to the Obama doctrine, pre-emptive strikes are permitted, but here are three areas in which the Obama doctrine appears to fall woefully short. The Obama administration does not seem to have explicitly rules out targeting low level militants though the doctrine clearly implies they should be ruled out as targets, but the practice suggests this is certainly not always the case. The doctrine is clear in theory that capture is preferred, but the practice seems to point to killing as the first order of business. Third, the whole doctrine of signature strikes based on patterns of behaviour need to be explicitly ruled out if the Obama doctrine is to be taken at face value.

Finally, I want ironically to return to the principle of "last resort". Last resort does not mean that you try all other options first. It does mean that you consider other options as preferable if they are also both feasible and prudent. Since no outsiders have had access to the discussions on the use of drones, and since we have only had reassurances that the principle has been taken into consideration, I am unable to assess the degree to which this has been the case.

Tomorrow: Obama’s Resurrection of the Israeli-Palestinian Peace Process 28.02.13

[Tag Obama, drones, Brennan,
Johnson, discrimination, necessity, proportionality, just war]

Obama 19.Drones.Normative Debate.26.02.13.doc