The Volokh Conspiracy

David:

Just a clarification. Why is it be appropriate to refer to human shields as "civilians". If the human shields are war criminals, then they should be called such. I don't care if the human shields/war criminals are 10 years old, cuddly and sympathetic - they should be called what they are. War criminals.

Jim Dunnigan at Strategy Page addressed Professor Bernstein's second question this morning:

The War With Iran
July 16, 2006: Iran aside, there hasn't been a really noisy response from the Moslem world about Israel's military operations against Lebanon. Notably subdued is the response from the Arab countries; it's mostly been mumbling about the plight of the Palestinians and such. Could this mean that the principal Arab leaders are not all that unhappy to see Hizbollah get it in the neck? After all, most of the Arabs are Sunni, while Hizbollah and Iran are Shia. The exception that proves the rule is Syria, which has a Shia leadership. But most Arabs fear Iran, not because most Iranians are Shia, but because Iranians are not Arabs. Iran has been the regional superpower for over three thousand years. Iran is building nuclear weapons. Iran is backing Shia Arab factions in Iraq that would support turning Iraq into an Iranian ally. Also scary is the fact that Iran is currently run by a religious dictatorship. Most Arabs have noted how that worked in Iran, Sudan and Afghanistan and want no part of it. Worse, the Iranian religious leadership believes that they would do a better job running the Hejaz (the region of Saudi Arabia containing Mecca and Medina and the most holy places in Islam). For centuries, the Turks kept the Iranians out of the Hejaz. But who would keep nuclear armed Iranians out? Perhaps worst of all, what if Iran tried attacking Israel with nukes, and both nations went at it with nuclear weapons. Iran has loudly proclaimed its aim of destroying Israel, but Israel has nuclear weapons, and no desire to be destroyed. The Arabs would be caught in the middle of all this.

The Sunni Arab world always saw Hizbollah as an Iranian branch office on the Mediterranean. Hizbollah was also seen as one of the reasons the Lebanese civil war, that began in 1975, went on for so long (until 1990, when everyone called it quits, mainly because of sheer exhaustion). Sunni Arabs also take a dim view of how the Shia Alawite sect has controlled Syria (a majority Sunni country) for two generations. The Syrian Alawites hang on via subsidies from Iran. Sunni Arabs have always despised Shia, and would like to see the Lebanese and Syrian Shia put in their place (subordinate, very subordinate). Having Israel do a lot of the heavy lifting is seen as an added bonus.

Divigator:

Would you agree that a "pre-pubescent child" who commits a suicide bombing is a war criminal? Of course you would. The child's age doesn't excuse his criminality. Similarly, when a pre-pubescent child serves as a human shield they are a war criminal. The child's age doesn't excuse his criminality. -- and needless to say, Israel is entirely within its right to kill every militant and human shield.

Killing a 10-year-old is never going to be anything but totally regrettable. Possibly necessary, but always regrettable.

Killing a true war criminal is rarely regrettable.

Robin Wright, "Strikes Are Called Part of Broad Strategy," in today's Washington Post has got the story just about right, I think.

In a slightly broader context, it seems to me that Iran's drive to acquire nuclear weapons is more dangerous if the Iran-Syria-Hezbollah-Hamas axis survives this clash, and less dangerous if it doesn't. Iran has been patiently building a strategy to allow it to put continuous and increasing pressure on Israel backed by the ultimate threat of nuclear war. My own reading is thayt Iran has, prematurely, put its pawns, rooks and knights in play in hopes of gaining political leverage against the demands of the Perm 5 plus Germany to suspend uranium enrichment and plutonium production activities. It was probably not coincidental that Iran's top national security official, Ari Larijani, flew from his meeting with Javier Solana, at which he refused to respond to the deadline set for Iran's answer to the P-5+Germany proposals, straight to Damascus for meetings with Palestinian militants and Hezbollah, according to the official Kuwait news agency Kuna, citing Iranina sources. Iran is also challenging the stability of Iraq. Last week Zal Khalilzad, the U.S. ambassador to Beirut, said in a speech at CSIS in Washington, "Tehran has played a role in providing extremist groups with arms, training and money. The Iraqi government is increasingly concerned about Iran's destabilizing actions.... If Iran persists ... the Iraqi government, as well as the United States and other freinds of Iraq, will need to consider necessary measutres to deny Tehran the ability to undertake destabilizing policies.")

There is an opportunity here for an end-game that would disarm Hezbollah and the Shiite militias in Iraq backed by Iran, leaving Syria and Hamas weakened and more isolated, and depriving Iran -- for a time -- of its long-range reach. It would be necessary to move quickly thereafter to find a mostly acceptable settlement between the Palestinians and Israel, or the rejectionist forces would soon reappear. This operation could easily take the six months Khalilzad has given the Iraqi government to disarm the Shia and other militias, or even longer if Iran steps up its interference. Israel is trying to prevent Iran from sending reinforcements to Lebanon as a first step toward defeating Hezbollah).

There is also an opportunity for the Security Council to face Iran with sanctions if it doesn't back down on uranium enrichment and other paths that could lead to nuclear weapons. But unless there is an internal uprising that dislodges the mullahs or makes them change their minds there is probably no realistic hope of denying Iran nuclear weapons in the long run. That siwhy it is so important to defeat the forward forces of the Iranina strategy now when the opportunity presents itself.

But this could get quite nasty, not only for Lebanon and Israel. Iran has clearly anticipated the potential for open conflict. In addition to the oil weapons, it may have other tools for making everyone wish this conflict could end quickly. Last fall President Ahmadinejad hailed the announcement by a "voluntary" Iranian organization that it was recruitng and training 20,000 suicide bombers. For use where?

Barry: the 10-year-old isn't doing anything. Others may be forcing the 10-year-old to act as a human shield, and I could understand it if you wanted to call those people "war criminals." But calling the 10-year-old a "war criminal"? That's sick, Ward.

The thought of killing children is repugnant. Period.

BTW, I hated the Godfather movies.

Sure, some of the 10-year olds are forced into it. In that instance the blame for their deaths lies squarely in the actions of their parents/guardians. However, in the case where children choose "martyrdom", I don't know if age is (or should be) a recognized defense to war crimes. But all of this is besides the point. My opinion that an objective test is the only viable approach to war criminality.

Certainly from the perspective of the Israeli airforce pilot out to kill a militant, it would be impractical for him to take into account the subjective intent of the human shields who protect the warrior. The better rule would be that if a human shield is present she becomes a legitimate target, no matter what her intent happens to be (forced or willing).

Person from Poluck:

Just to be clear. I do not consider 10 year old suicide bombers victims.

An odd discussion. People get killed during war. Labeling the corpses is an exercise done by unserious people.

Here's how it's supposed to work, though: you identify an enemy, devise a strategy and have at it.

Were all the 10-year-olds in Hiroshima human shields against American bombs?

Mr. Bernstein:

I understand your position, which is that the world media is incorrectly counting the dead bodies. Maybe so. But wouldn't it be fair to say that YOU are in the business of distorting the truth the other way? I have observed you, over and over again, justify the actions of Israel in vritually every action they take, and vilify the Palestinians or others for every action they take.

Whether or not you are correct in your critique of the world media - and i suspect you are - could you not at least show the slightest bit of compassion for the people on the side of this conflict that you do not support? I feel as if you have become the type of person who has literally de-humanized your opposition, much like many of the actual combatants in this conflict.

If the ratio of the body count is so important, then it must be the case for you that killing innocent people is wrong, even if justified. To me, that means the first thing one should do is recognize that even a necessary and sucessful military operation by the Isarel army is a somber event in which innocent lives are taken.

You're attitude seems much more one of glorfied revenge. I'm not saying that is how you feel, I'm saying that is how your writing is coming across.

respectfully
matt

[I]t must be the case for you that killing innocent people is wrong, even if justified.

What in the world is that supposed to mean?

So much violence.

To Charlie (Colorado):

Where do you know that intent is an element of a war crime? My understanding is that war crimes are strict liability. (Think of the uniform provision - there is no language that requires the war criminal to "knowingly" not wear a uniform. It seems to be a strict liability crime - if you are a warrior who doesn't wear a uniform you are a war criminal - end of story).

According to you, under international law a warrior can strap a 2 month old baby to his back and become immune to retaliation. How about a suicide bomber bringing her child to the attack, does that make the her immune? Of course not. The intent of the human shield is irrelevant, it is a war crime to be a human shield - end of story.

I guess that makes FDR, Truman, Kennedy and Johnson war criminals. They killed more German, Japanese, Korean and Vietnamese civilians in the span of a few hours than Israel has killed in 58 years. They killed upwards of 1,000,000 children from all four countries combined.

Would all the naysayers on here at least be consistent and agree that FDR and Truman were war criminals?

And that they were war criminals on a massive scale

Barry:

Just to be clear. I do not consider 10 year old suicide bombers victims.

Clarity's not your problem.

Historically speaking, would human shields be the ethical equivalent of family hostages kept by someone to ensure proper service to a soveriegn?

Divagator's first point remains good.

In which regime are there more civilian casualties?

A. One where armies are willing to kill civilians used as shields.

B. One where armies are unwilling to kill civilians used as shields.

The answer is B. In regime A, civilians won't be used as shields, and hence won't be as much in harm's way. In regime B, there will be some accidental killing of civilians used as shields.

Mark F:

Ha! I suppose the Israeli soldiers were killed and kidnapped by Mossad, too - after all, why wait? Just like 9/11 was a pretext, and really a US Gov't plot.

If you believe that, then you probably believe that I'm a magician.

By the way, I *demand* to be taken seriously.

Mark F.,

Any credible military organization maintains battle plans and scenarios (and constantly updating) for any potential war situation, so it isn't a surprise that Israel had plan in place to address this situation. You are looking for facts to fit your foreign policy theory but this won't help.

In Lebanon there is no army to speak of. All Hizbolla fighters are civilians. Morever, the type of warfare practised in this conflict is "bomb the non combatants at the other side as hard as you can". Therefore the whole issue of civilian body count belongs to the realm of propaganda.

American Heritige Dictionary:
Civilian
NOUN: 1. A person following the pursuits of civil life, especially one who is not an active member of the military or police. 2. A specialist in Roman or civil law.

So terrorists, not being members of the military or police are all civilians and all the casualities will be civilian unless the Israelis happen to get a few police or Lebonese military in the process.

Of course the intent of the MSM is to make it sound like all the 'civilians' are elderly, women or children.

"Israeli media is reporting that Hezbollah stores its rockets in specially designed private homes. . . . These are not "civilian" targets, though undoubtedly (and obviously unfortunately) children, intentionally put in harm's way by their parents for the benefit of Hezbollah, are getting killed."

I hate to throw cold water on this lovely discussion of killing 10-year-old war criminals, but I'd like to point out that Bernstein can't point to a single dead kid in Lebanon whose home was used to store rockets. He assumes it's true, and he hopes it's true, because it reduces Israel's and his culpability. It indeed might be true for some (or none) of these children, but he throws it into the dialogue like it's fact. Perhaps some or all of these kids were just innocent kids.

Isn't this the part where Eugene shows up to say that when the dinner guests at his oh-so-civil dinner party say "Arabs are like Doritos," we don't mean all Arabs, just the bad ones?

What is hateful to you, do not do to your neighbor. This is the whole Torah; all the rest is commentary.
— Hillel, Talmud, Shabbath 31a

Magoo,

Hate to throw cold water on you, but your argument fails if the house next door, or even someone in the same town, uses their home to store or launch rockets. Missiles go astray, buildings are (reasonably) mistargeted, and civilians die.

From Ha'aretz

"We have a pretty good idea where they are launching their rockets from - villages and small communities - and [as such] we have warned civilian residents to evacuate their homes," he said.

If civilians do remain, whose fault is that?

From JPost:

A senior IAF officer revealed to the Post on Sunday afternoon that the IDF was using bunker-buster bombs to strike at senior Hizbullah officials in hiding throughout Beirut and Lebanon. According to the officer, several of the bunker hideouts were hidden under civilian parking lots

It seems eminently reasonable that Hezbollah uses human shields. Even if some innocents are hurt (innocent insofar as they didn't know their neighbors were Hezbollah members) that's war.
.

Now, those bunkers may also have been used to store rockets, or not. But it does seem reasonable to assume that, knowing the value of such bunkers (harder to destroy) they would use similar tactics in protecting their weapons (who wouldn't?). That would apply to harder to hit targets such as bunkers or politically hard to hit targets like mosques or schools.

I will agree that David shouldn't have posted his comments without a direct source to back himself up, but we all do so, and no one footnotes every word in a blogpost.

Romach -- You're making a different, and larger, point than the Bernstein point to which I was responding. Berstein said it is "undoubtedly" true that at least some of the dead kids lived in homes that housed rockets. There's no evidence of this, but as I said, I can certainly understand why he wants to plant this seed in people's minds.

Your larger point is more complicated, but again I would point out that it has been reported that at least some of the dead kids belonged to families that were doing exactly what the Israelis told them to do: evacuating.

Using human shields is heinous, but it does not give Israel a moral blank check. If a murderer runs down a crowded avenue, we wouldn't applaud if the police sprayed the crowd with machine gun fire, even if they hit the murderer as well.

Magoo - that's an interesting point I hadn't thought of. How responsible is Israel for civilian casualties casued by civilians listening to Israel's warnings to evacuate? Don't know, its a tough one. Are they more responsible than if they hadn't issued the warning? What if there really is a lower likelihood of death by evacuating. Regardless, does Israel's warning then let Hezbollah off the hook? Not sure there's an answer, sounds very fluid to me, with too many variables.

Agreed on the machine gun example.

Magoo, relax, I'm not claiming that the ONLY children killed in the war were those living in houses storing missles. And Drackman, I'm running out now so I don't have time to go into Powerblogs and edit your comments, but they are unacceptable.

It seems pretty clear to me that Israel has had extensive military operations planned for a while and the recent incidents were just the excuse to put them in place. The Israelis, the American neocons and the Islamic radicals all want the same thing: a wide war.

Mark F.

Every government has military contingency plans to deal with forseeable circumstances that might require military action. Any government would be criminally negligent if it did not have one. No need for conspiracy theories here.

Barry, surely you mean that the soldier who straps the 2 month old baby to his back is the war criminal, and not the 2 month old baby. Otherwise, I'm forced to conclude that aside from being an ass, you're also an idiot.

agesilaus,

While I'm no fan of "international law," I think the Geneva Conventions might be a more useful reference than the American Heritage Dictionary for determining who should and should not be considered a civilian.

A civilian is any person who does not belong to any of the following categories: members of the armed forces, militias or volunteer corps, organized resistance movements, and residents of an occupied territory who spontaneously take up arms. If there is any doubt whether a person is civilian, then he or she is to be considered a civilian. (Protocol I, Art. 50)

Under this definition, Hezbollah would seem to qualify as a "organized resistance movement." They call themselves the "Islamic resistance" and profess that they were "formed primarily to offer resistance to the Israeli occupation." Accordingly, Hezbollah fighters are not civilians and should be accounted as such.

As an aside, I remember the PLO adopting this particular point. They would say that all PLO members were civilians because they were a popular uprising. Conversely the PLO insisted that all Israelis were legitimate targets, since they were in hostile occupation of Palestinian land.

I do not see why the casualty figures should be treated with anything but suspicion.

The Palestinians have a record of making up casualty figures even going to the extent of having people on stretchers and in ambulances who are not injured.

I would suggest Hezbollah is using the same playbook and Hezbollah would be in control of services in the South.

"At what point do westerners, under attack, say, if you're going to use the doctrine of collective punishment against us, we are not going to allow you to claim it as a moral standard against us also"

In my opinion, some of you are asking the wrong question.

It's not so much "how moral are the untargeted killings of children and civilians that occur in technological error" as it is "how effective are these untargeted killings?"

Look to your past. What have the targeted assasinations and technological errors bought you in the past? Nothing more than a sliver of time is all. After all the deaths and destruction, you are right back at square one. Not very effective, but it surely makes one feel strong and less victim like to "fight back", however ineffectually.

Just, you're missing the obvious point that Israel intentionally targeted the houses hiding the missles, even knowing that children might be killed, and the fact that there is absolutely no reason to believe that Israel intentionally hit a truck filled with refugees, and indeed, it goes against the advance warnings et al. Israel has given in this war. The question is whether (a) it's okay to target a house hiding a terrorist enemies missles, even if children might live there; and (b) adults hiding the missles should be considered civilian casualties. The answers most commentors are giving are (a) yes, otherwise terrorists can simply hide behind human shields and (b) no, they are combatants. You might ask a further question whether it's okay to bomb military targets if you might accidentally hit civilian refugees while doing so, but I assume that if you answer "yes" to (a), you will answer yes to that, too.

"...and the fact that there is absolutely no reason to believe that Israel intentionally hit a truck filled with refugees, and indeed, it goes against the advance warnings et al. Israel has given in this war. "

No, you are missing my point about civilian deaths.

Whether intentional or not, be responsible enough to admit that Israeli actions are killing innocent civilians -- those not living above missiles, those not participating in Hezbollah actions, those trying to heed Israel's pamphlets and evacute to safer places so their children might survive.

Can you relate? That human place inside, that might have working fathers of any nationality or religion, running from the violence that is deadly -- whether intentional or not?

Until Israel can step up and accept responsiblilty for these deaths, (instead of trying to spin circumstances to better justify such deaths) they are kidding themselves on strategy. Such deaths -- no matter how lamentable -- are not helping Israel's cause. Think of the game of baseball -- errors hurt you in the final score. Step up and admit responsibility for deaths like that family on the Gaza beach. Pay to compensate the victims and demand accountability when such errors are made. Don't act as though an Israeli life is worth so much more than innocent others. A dead child is a dead child, especially when circumstances indicate neither they nor their family or neighbors had anything to do with killing Israelis.

"For better or worse, where we have inflicted the most civilian damage is where we have most long-term effectiveness."

Stick to the topic of Israel, and demonstrate to me where this foreign policy or military strategy has proven effective. I would not feel any long term security living there myself, and continuing such techniques are sure to bring more of the same. Good luck with the Lebanon invasion though -- I'm sure one more hard strike and long term victory (and peace and security and adequate land and water resources) is just around the corner ... (Damn fools!)

And do you think Israel should acknowledge responsibility for the Gaza beach incident REGARDLESS of whether it's established that it was in fact an Israeli shell that did it, which has not been established?

Since israel had little choice but to defend itself, and does what it reasoanbly can to choose not to kill civilicans, any and all civilians killed are of course the responsibility of those who did not make the right choices.

The hizbollah, Hamas, Iran, Syria, the individual terrorists and rocketeers. They killed those civilians. Israel did not. To Israel, the civilian deaths were an unavoidable feature of survival.

Just as the Japanese killed all those children in Hiroshima by being an absolutely evil raping empire long ago. The US did not kill those people, the nuclear weapons actually saved much more life than it killed.

You can hardly say otherwise without serious lack of clarity. We're talking about who it as fault.

Here's how the US fought back when we knew how to win wars:

Within a few minutes, huge fires were burning all over the target area, which covered some twenty square kilometers, and they merged so rapidly that only a quarter of an hour after the first bombs had dropped the whole airspace was a sea of flames as far as the eye could see. Another five minutes later, at one twenty a.m., a firestorm of an intensity that no one had ever before thought possible arose. The fire, now rising two thousand meters into the sky, snatched oxygen to itself so violently that the air currents reached hurricane force.... The fire burned like this for three hours. At its height, the storm lifted gables and roofs from buildings, flung rafters and entire advertising billboards through the air, tore trees from the ground, and drove human beings before it like living torches. Behind collapsing facades, the flames shot up as high as houses, rolled like a tidal wave through the streets at a speed of over a hundred and fifty kilometers an hour, spun across open squares in strange rhythms like rolling cylinders of fire. The water in some canals was ablaze. The glass in the tramcar windows melted; stocks of sugar boiled in the bakery cellars. Those who fled from their air-raid shelters sank, with grotesque contortions, in the thick bubbles thrown up by the melting asphalt.... Horribly disfigured corpses lay everywhere. Bluish little phosphorous flames still flickered around them; others had been roasted brown or purple and reduced to a third of their normal size.... Other victims had been so badly charred and reduced to ashes by the heat, which had risen to a thousand degrees or more, that the remains of families consisting of several people could be carried away in a single laundry basket.

That night in this one raid alone, more than 45,000 men, women, and children were killed in Hamburg. Half the houses in the city were destroyed, and more than a million Germans had to flee into the surrounding countryside.


Let's see how they like that in Beirut, Baalbeck, Damscus and Tehran

I come back in the morning, and still ... spin, spin, spin.

I've seen AP pictures too. Bullet holes and intentional destruction in the home soldiers "took over" from civilians in Gaza. Dead children scattered at the side of the road, struck down by Israeli bombs.

If you all can justify that Israel played no role, has no "justice" herself to live up to for these lives, ok keep your biases. Don't come crying to me when you don't "win" and lose your own innocents in the process. Even if it's all because someone like the US held you back from success, as apparently some are now claiming.

Stupid strategy, but I understand, it makes you feel big to kill "others". Have at it, but please remember that running and crying part.

"Unless a Muslim signals he's on our side — I don't know how he does this, wear a pork chop around his neck? — the default assumption for me is, enemy."

Harry, you've come to the right place. You'll find a lot of company here.

"Cost of doing business."

Right.
So explain to me again the moral argument against "terrorists" who achieve exactly the same result.

I fear Israel is losing more here than she knows...
(Canadians?? sheesh!)

So explain to me again the moral argument against "terrorists" who achieve exactly the same result.

The difference is obvious.

Israel does not target civilians deliberately, but accepts that some civilians will die as a result of operations against terrorists (not least because the terrorists seek to use civilians as human shields).

The terrorists do deliberately target civilians. For them, the death of civilians is not a subsidiary "cost of doing business" but the primary purpose of their attacks.

Because if you want an all nighter,
explain to me how killing Canadians helps Israel's cause any. Intentions aside.