Right to Defend

 

Village of Atatra, Northern Gaza, October 21, 2023. Satellite image by Maxar Technologies, via AP. 

A "centrist" Israeli parliamentarian on BBC was less uncomfortable to listen to than the rightwingers generally are, soft-spoken with a kind of Central European vocal quality unlike the shouty, hectoring Likudniks or the coldly domineering IDF spox, who all seem to have been trained in BBC announcer school themselves, but the message wasn't really any different: all about Israel's unquestioned "right to defend itself" (as if that were what they've been doing over the last six months, as opposed to creating an unending supply of future Hamas fighters thirsting for revenge from now into perpetuity) and the prosecution of a "just war". I'll get to that, and St. Thomas Aquinas, later. I just want to point out how deeply unimaginative the Israeli "center" is, like everywhere else, while I keep focusing on Netanyahu and his unspeakable fascist partners, and how unwilling the center is to even try to think outside the conservative box, and sometimes worse than that: like Defense Minister Yoav Gallant's proposal to build a shiny new settler city, Ariel, the capital of "Samaria":

“There needs to be a large and significant city developed there, following what is happening in the mountain ridge of Ariel, because this is the most central junction that allows us to shift Israel’s population eastward,” explained the defense minister.

To which I responded

Drang nach Osten. en.wikipedia.org/wiki/Drang_n... Fulfilling the Likud slogan "from the sea to the river [Jordan]" Honestly Gallant and Gantz have swung so far right themselves they might as well just join Likud.

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— Yastreblyansky (@yastreblyansky.bsky.social) May 11, 2024 at 1:52 PM

I'm running a little late on things because I spent too much time on the wrong State Department report (the 2023 Country Report on Human Rights Practices for Israel, West Bank, and Gaza, which lays out many facts on misconduct by Israeli, Hamas, and Palestinian Authority forces through the end of last year but doesn't offer any opinions on the legal position or what Congress should or shouldn't do about it), before Just Security posted the one I've been waiting for, its Report to Congress under Section 2 of the Natonal Security Memorandum on Safeguards and Accountability with Respect to Transferred Defense Articles and Defense Services (NSM-20), a very valuable, though frustrating, document. 

The purpose is to examine assurances from seven recipients of US arms aid that are currently engaged in conflicts (Colombia, Iraq, Israel, Kenya, Nigeria, Somalia, and Ukraine) that they will 

1.  use certain U.S. government (USG)-funded defense articles in accordance with international humanitarian law (IHL) and, as applicable, other international law, and 
2. consistent with applicable international law, facilitate and not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport of U.S. humanitarian assistance and USG-supported international efforts to provide humanitarian assistance in any area of armed conflict where the partner uses such defense articles.

And the tl;dr conclusion as regards Israel is that while the IDF in Gaza and the West Bank and East Jerusalem definitely do violate IHL and other international law, and deny, restrict, and impede humanitarian assistance to Gaza (so, of course, do the Hamas and Islamic Jihad organizations, but they don't talk so much about it, and they don't receive US arms aid), we haven't been able to determine whether US munitions were used in the commission of these war crimes, which they probably were, because Israel hasn't told us, so nothing can be done:

Although we have gained insight into Israel’s procedures and rules, we do not have complete information on how these processes are implemented. Israel has not shared complete information to verify whether U.S. defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of IHL or IHRL in Gaza, or in the West Bank and East Jerusalem during the period of the report. Limited information has been shared to date in response to USG inquiries regarding incidents under review to determine whether U.S. munitions were used in incidents involving civilian harm. However, certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.

(Shades of Robert Mueller explaining that he was unable to prove whether or not the 2016 Trump campaign had conspired with Russian intelligence to influence the presidential election because so many involved people had lied to investigators, destroyed or concealed evidence, or remained in Russia.)

For instance,

The State Department’s 2023 Country Reports on Human Rights Practices document credible reports of alleged human rights abuses by Israeli security forces, including arbitrary orunlawful killings, enforced disappearance, torture, and serious abuses in conflict.Credible UN, NGO, and media sources have reported that since October 7, Israeli security forces have arrested large numbers of Palestinians suspected of being Hamas militants and transported them from Gaza to Israel, where some were allegedly abused during their detentions. NGOs have disputed claims that all of these detainees are Hamas militants. There are also allegations of Israeli security forces using excessive force against Palestinians in the West Bank and East Jerusalem in the course of counterterrorism operations.The UN reported that 2023 was the deadliest year on record in the West Bank prior to October 7, and there was a significant intensification of killings and other incidents of violence in the West Bank in the following months. Palestinians killed in operations by Israeli security forces included both militants and civilians while Israeli civilians were also killed by Palestinian terrorists during this period. Extremist settlers have been responsible for acts of violence and intimidation against Palestinians in the West Bank, including incidents where Israeli security forces may have played an abetting role or failed to effectively intervene....

The UN reports that more than 250 humanitarian workers have been killed in the course of their work or in other circumstances. Multiple military operations have taken place in protected or de-conflicted sites or in areas designated for evacuees. Some of these incidents during the reporting period that have received widespread attention in media or are cited by humanitarian organizations as illustrative of the operating environment in Gaza are noted below. As noted above, we are not able to reach definitive conclusions on whether defense articles covered by NSM-20 were used in these or other individual strikes....

Additionally, there are numerous credible UN, NGO, and media reports of Israeli airstrikes impacting civilians and civilian objects unrelated to humanitarian operations that have raised questions about Israel’s compliance with its legal obligations under IHL and with best practices for mitigating civilian harm. These include reported incidents involving strikes on civilian infrastructure and other sites protected from being made the object of attack absent use for a military purpose; certain strikes in densely populated areas; strikes taken under circumstances that call into question whether expected civilian harm may have been excessive relative to the reported military objective; or failure to provide effective warning or take appropriate precautions to protect civilians. Strikes on protected sites do not necessarily constitute violations of IHL, as such sites can be legitimate targets if used for military purposes. However, all military operations must always comply with IHL rules, including distinction, proportionality, and precautions....

Israel has a sophisticated system for identifying where civilians are located in order to try to minimize civilian harm. However, UN and humanitarian organizations have reported Israeli civilian harm mitigation efforts as inconsistent, ineffective, and inadequate, failing to provide protection to vulnerable civilians who cannot or chose not to relocate, including persons with disabilities, persons receiving medical treatment, children, and the infirm. Humanitarian organizations reported further that phone/SMS messages were ineffective during IDF-generated telecommunications blackouts, and civilians received insufficient notice, inaccurate or vague information on where people should go, and on safe evacuation routes. Many of the IDF-designated areas to which civilians were directed to seek safety lacked adequate shelter, water, sanitation, food, medical care, security or other support. The reported rate of civilian harm in the conflict also raises serious questions about the efficacy of Israeli precautionary measures, notwithstanding Hamas’ deliberate embedding within and use of civilian and humanitarian infrastructure as shelter.

The failures in that last paragraph representing some very large proportion of what's now almost 35,000 deaths, 1.6 percent of the Gaza population, who died because they didn't get the email, or they couldn't get out of the house, or they were sent someplace that wasn't safe at all, some of whom were no doubt militants but most of whom were women and children, including premature babies who died in hospitals because the electricity was cut off, or because the "Gospel" or "Lavender" chatbot had a hallucination of a combatant who didn't exist or was somewhere else at the time (these new AI-informed targeting procedures bypassing the old one and creating what's been called a "mass assassination factory" aren't mentioned in the report).

Then again, it's Israel's enemies who insist on living among the civilians, with their families, or (possibly, in some cases), operate in schools and hospitals, or underneath them in tunnels built by the Israelis during the occupation (as we learned last November from former prime minister Ehud Barak), to maximize the space in the buildings' small footprints. Instead of staying in barracks and wearing uniforms.

Incidentally, that was a complaint about the Vietcong forces—that they used the civilian population as human shields, melting into the crowd to hide from the US forces. It was said that, as Orientals, they had no reverence for human life, and didn't mind bringing death from the American helicopters on their friends and neighbors. I've just been remembering, thanks to all the talk about 1968 inspired by the ongoing college protests over Gaza. In the case of Vietnam, everybody concluded long ago that it was a bad place for the Americans to be having a war (even the ones who continue to say that the students were wrong!). I do understand that the Vietcong didn't leap across the US border to massacre more than a thousand people and kidnap a bunch of hostages, and Hamas really did do that in Israel, so it's not a great analogy, but there's a point I'm working toward, which is that Gaza may be a bad place for Israel to be having a war, even though they understandably feel they have a really good reason for it. 

Because it takes more than just a just cause to make a just war. In the formulation of Aquinas, which is basically still the basis for the discussion nine centuries later, a just war must

• have a just cause
• be a last resort
• be declared by a proper authority
• possess a right intention
• have a reasonable chance of success, and
• have an end in proportion to the means

I don't see any point in arguing about the just cause or the proper authority—the October 7 attacks were a really aggressive and unjustifiable thing that demanded a response, and the Israeli government was certainly the agency entitled to respond to it. 

But it clearly wasn't a last resort: Qatar, Egypt, and the US immediately started up efforts at negotiation to postpone hostilities and try to return the hostages to Israel, as Reuters reported on October 9, and an offer was on the table for a five-day ceasefire and return of all the captured children, women, elderly, and sick when Prime Minister Netanyahu rejected it and launched the ground invasion on October 27 instead.

The issue of right intention ("a nation waging a just war should be doing so for the cause of justice and not for reasons of self-interest or aggrandizement") isn't as easy to answer for Israel in Gaza as it is for, say, Russia in Ukraine (Russia doesn't have a just cause against Ukraine, even if you think it has one against NATO, and its clear intention of expanding its borders isn't legitimate), but it's very problematic, given the political situation: the tenuous character of Netanyahu's hold on power, the awfulness of his far-right coalition partners, his deep unpopularity following his attempt to seize judicial power from the judiciary, which brought on something close to one of those "color revolutions", and the obviously corrupt intention of that—to stop his own criminal trial on corruption charges. When members of "centrist" parties joined the government to form a war cabinet on October 11, it was agreed that they would continue under Netanyahu's premiership with no new elections until the war came to an end, so he has an incentive not to allow it to end, and his absolute rejection of every peace initiative since late November suggests that's his plan.

He won't even permit discussion of an end of any kind, as Josh Marshall points out today:

there’s a short piece in the Times of Israel this afternoon that captures a dimension of what’s happening right now in Israel that is mostly off the radar in the U.S. The piece is about a reported blow up between Netanyahu and IDF Chief of Staff Herzi Halevi. Specifically, it has the latter telling Netanyahu that because he refuses to make diplomatic arrangements for the post-war government of Gaza, the IDF is having to go back to fight again in areas it already took over. In some cases they’re having to go back and fight for the same ground a third time! ...

I hear often people saying that Netanyahu is just continuing the war indefinitely because that’s the only way he can stay in power. In practice, it amounts to that. But I think to capture his full folly and failure as a leader you have to go a bit deeper. He’s fighting the best war he can — but only within the bounds of what his coalition will allow. Which essentially means fighting with no strategy. And what that means for the IDF is just keep chasing Hamas around and killing Hamas soldiers, or rooting them out from parts of the Strip. So the IDF roots them out and then they leave and then a month later Hamas fighters filter back in and you’re back to where you were in the first place, only now all the buildings are destroyed and lots and lots of civilians are dead. So again, massive destruction and loss of life and not that much even accomplished.

The questions of the goal of the war and its chances of success are also problematic, in part because Netanyahu and the others have been so vague about what it means, beyond the variations on a slogan, from "demolishing Hamas" to "the destruction of Hamas's military and governing infrastructure" along with securing the release of hostages (of whom a large number now seem to have already died under Israeli bombing). I don't know how you'd go about measuring whether it had succeeded or not. I'm certain the current action has increased Hamas's political strength—a corrupt and backward party that was hated by the majority of Gazans on October 6 is now pretty popular, because of its resistance to the slaughter and destruction. And that—starting with the 35,000 human lives and all the rest—is wildly disproportionate to the meager success Israel has had in achieving its war aims.

So all in all, not a just war in the technical sense and becoming less so every day, as the failure and carnage both grow.

The best approach, as I've said elsewhere, would have been to start out with no war at all but with negotiations, especially on behalf of the hostages, and to treat October 7 as a crime carried out by lawbreakers rather than an act of war carried out by an army and offering them exile, as was done with the PLO leadership in 1982. That, of course, was politically impossible, because of the public trauma. But the government could have done as the Biden administration has kept begging them to do, brought the hostages home and stopped the bloodshed, and declared victory, especially in the process that got started in November.

Yes, Israel has an unquestioned right to defend itself. Why not try doing that, instead of endlessly making the situation worse?

I think at this point he's convinced his best chance is for the war never to end. He won't admit it, because it would show Biden was right, but there's not going to be a Ragnarök in Rafah, just permanent Whack-a-Mole--IDF is back to chasing Hamas in the north www.nbcnews.com/news/world/i...

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— Yastreblyansky (@yastreblyansky.bsky.social) May 13, 2024 at 2:13 PM