Professional Documents
Culture Documents
The recent war between Israel and Hezbollah 1 raises many significant
questions, several of which are related to the war's strategic implications.
Why did the war start? What were the motives and objectives of the relevant
parties? How did Israel and Hezbollah emerge from the conflict? Is either
stronger or weaker than before? My concerns in this paper lie elsewhere,
focusing upon fundamental questions of morality and justice raised by the
recent war. Although I shall not ignore the sorts of strategic questions
mentioned, I am interested in them primarily insofar as they bear on central
moral issues surrounding the conflict. In particular, I shall be assessing what I
take to be the mainstream moral account of the recent war. Although I shall
provide some evidence to suggest that it is, indeed, the mainstream account, I
am not terribly concerned with whether I am right on this score. My main
purpose is to use the account as a foil for the position I wish to defend.
What is the mainstream moral account of the war? 2 I believe it comprises two
themes, corresponding roughly to the most important elements of the two
traditional components of just war theory: jus ad bellum (the justness of
going to war) and jus in bello (the justness of the conduct of the war). The
1 Although the war is usually characterised as one involving Israel and Lebanon,
there are good reasons for resisting this characterisation. Most obviously,
Hezbollah did all of the fighting on the Lebanese side – the Lebanese army stayed
out of the conflict entirely. Unfortunately, much of the Lebanese population was
effectively a target, and thus an innocent third party to the war.
2 I refer here principally to the mainstream American account, although to a lesser
degree the description applies to much of the British media as well. In other parts
of the world, matters are rather different. New Zealand coverage of the war was
undoubtedly more critical than what I am here calling the "mainstream" account,
though such an account nevertheless received a good hearing in the New Zealand
press.
2 Human Rights Research
first theme is that Hezbollah was the aggressor in the war: it attacked first and
Israel responded in self-defense. Thus Israel, but not Hezbollah, had justice
on its side in going to war. The second theme is that Israel's conduct of the
war was morally superior to that of Hezbollah's, chiefly because Israel, unlike
Hezbollah, did not target civilians directly. To be sure, the mainstream
account does not regard Israel's conduct of the war as morally perfect. A
fairly common criticism is that Israel responded to Hezbollah's aggression
with disproportionate force, perhaps grossly disproportionate force. Related,
it is also occasionally suggested in the mainstream that Israel failed in its
choice of targets adequately to distinguish civilian from military targets.
Again, however, since the mainstream account holds that Hezbollah utterly
failed to distinguish civilian from military targets, Israel's conduct of the war
is generally regarded as morally superior to that of Hezbollah's. 3
As noted, the mainstream account is essentially a just war account, and just
war theory forms the moral basis of (although it is also informed by)
contemporary international law governing war, including the so-called Law
of Armed Conflict. Thus, the plausibility of the mainstream moral account
bears directly on the question whether central elements of international law
have been violated, and, if so, by whom. First and foremost, assessing the
plausibility of the account's jus ad bellum component is essential to
determining which side (Israel or Hezbollah) violated the Charter of the
United Nations, Article 2 (4) – arguably the cornerstone of public
international law. It reads:
All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.
The question of jus ad bellum also bears directly on the closely related ideas
expressed in Article 51 of the Charter:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security …
Both the jus ad bellum and jus in bello components of the mainstream
account, meanwhile, bear on well-known elements of international
humanitarian law and human rights law. These include, prominently, the
Geneva Conventions and their various Protocols, as well as the Universal
Declaration on Human Rights (UDHR). The basic idea behind the former is
to give legal force to the ancient idea that war, despite its horrors, is
nonetheless not a realm where anything goes. Rather, its conduct is governed
by basic rules and principles. Most importantly, these include the principles
of discrimination (military actions must attempt to distinguish legitimate
from non-legitimate targets) and proportionality (military actions must not
produce bad or evil that is disproportionate to whatever legitimate or good
end they achieve). 4 Turning to the UDHR, its Article 3 guarantees, simply,
that "Everyone has the right to life, liberty and security of person". Again, the
jus in bello component of the mainstream account of the Israel-Hezbollah war
has clear implications for whether (and, if so, how and by whom) this
fundamental human right was violated during the war.
In short, although the present paper focuses on the moral issues surrounding
the Israel-Hezbollah war, it should be clear that these issues bear directly
upon fundamental questions of international law and human rights. Still, it is
important to bear in mind that although morality deals with questions that are
closely related to foundational issues in law, the former cannot of course be
identified with the latter. More specifically, in cases where the law is either
unclear or unjust, morality functions as a kind of 'court of last resort'. When it
is unclear what the law is – or when there are moral doubts about the way the
law is – then questions of what the law should be come to the fore. When one
addresses this question one is doing philosophy of law, for which moral
philosophy is indispensable. 5 In section 2.5 of this paper I shall raise these
sorts of doubts and suggest that aspects of international law governing war
are not as they should be.
4 For some useful discussion, see Kevin Riordan "Protecting Fundamental Human
Rights in Times of War: The Means and Methods of Warfare" (2005) 3 Human
Rights Research 49, 55.
5 For further discussion of this issue, see Ramon Das "Ethics and Legitimacy in
International Law" (2004) 2 Human Rights Research 99.
4 Human Rights Research
The thesis I shall defend is that the mainstream moral account of the war is
largely mistaken: for the most part it simply draws the wrong moral
conclusions about the war. First, on any reasonable account of the events
leading up to the July war, it is Israel, not Hezbollah, that emerges as the
most plausible candidate for being the aggressive party. Contrary to received
wisdom, Hezbollah was defending itself (and, perhaps, Lebanon more
broadly) from an overwhelming Israeli attack. Second, although both sides
are guilty of failing to discriminate between military and civilian targets,
Israel's conduct was, if anything, morally more culpable than Hezbollah's in
this respect. Moreover, and related, I shall argue that Israel was indeed guilty
of using disproportionate force, even granting the problematic claim that it
did not intentionally target civilians. This is evidenced both by the large
civilian death toll as well as by the tremendous devastation wreaked upon
Lebanese society and infrastructure. I address these claims in turn.
1 Just cause in the Israel-Hezbollah war
1.1 The importance of historical context
Jus ad bellum comprises a number of different criteria, and it is usually held
that all must be satisfied before a country can claim that it has justice on its
side in going to war. However, in this section I focus mainly on the centrally
important criterion of 'just cause': Which side can claim that it had a just
cause in going to war? Just war theorist Brian Orend calls this criterion
"clearly the most important rule [of jus ad bellum]; it sets the tone for
everything that follows". 6 Now, at the heart of the question of just cause lies
the notion of self-defense. The paradigm of a state having a just cause for
going to war is thus when it is under armed attack. This notion is sometimes
extended (increasingly so nowadays) to include the case where it is
reasonable to regard an armed attack on one's territory as imminent. In such
cases a state may be justified in launching a 'preemptive' attack, a point worth
noting given its potential relevance to the present case. 7 However, in
focusing on the question of just cause with respect to the recent war, our
central question is: Which side was the aggressor and which side acted in
self-defense? 8
It is impossible to assess this question adequately without some sense of the
relevant historical context. Such historical questions are of course often
contested, not least in the various and ongoing conflicts between Arabs and
Israel. Nevertheless, the extent of credible historical disagreement in the
Israel-Arab conflict is generally overstated. 9 and in any case the relevant
history for present purposes should not be controversial. It covers a relatively
short time-frame: the six year period since Israel's military withdrawal from
southern Lebanon in May 2000. Prior to that, Israel had occupied Lebanon
for over 20 years, and had launched an attack against the country in 1982 that
killed some 20,000 Lebanese, mostly civilians. A moderately thorough
account of the relevant history leading to the recent war would examine the
1982 war in some detail, particularly given its role in essentially giving rise
to Hezbollah. Again, however, I shall confine myself here to the period
dating roughly from May 2000. The date is hardly arbitrary, given that it
signals the official end of Israel's military occupation of southern Lebanon.
On the other hand, it would be difficult to argue that focusing on this
timeframe somehow unfairly prejudices the present inquiry in Hezbollah's
favor. At least, I have been unable to think of any such argument.
If we focus on this timeframe, it is fairly easy to outline the context relevant
to an assessment of the question of just cause in the recent war. Specifically,
the most salient feature of that context is that there were numerous cross-
border, relatively small-scale, attacks committed by both sides in recent
War (Broadview Press, Toronto, 2006) 74 and following. I return to this point
below in discussing some comments of the Israeli Foreign Minister.
8 I am assuming, with Michael Walzer and others, that the question of just cause is
effectively an "either/or" question – either one side is the aggressor and the other
side defending itself, or vice-versa: see Michael Walzer Just and Unjust Wars (2
ed, Basic Books, New York, 1991) 63 and following.
9 This point is made in different ways by Norman Finkelstein Beyond Chutzpah
(University of California Press, Berkeley, 2005) 2-8; Michael Neumann The Case
Against Israel (Counterpunch, Petrolia, California, 2005) 4 and following; and
Ron David Arabs and Israel for Beginners (Writers and Readers Publishing, New
York, 1993).
6 Human Rights Research
<http://jurist.law.pitt.edu/forumy/2006/07/hezbollah-israel-lebanon-and-law-
of.php#11> (last accessed 24 August 2007).
13 One might argue that focusing on the first such attack would not be arbitrary,
given the context. Perhaps not, but then the selection of the context would be
significant in a way that I have suggested it is not for present purposes. In any
case, to my knowledge no one has suggested that the first cross-border attack after
Israel's withdrawal in May 2000 is somehow decisively important to the morality
of the July 2006 war.
8 Human Rights Research
back to May 2000. But then it is Israel's escalation on July 12 that counts as
the relevant act of aggression for the purposes of assessing jus ad bellum.
Israel, not Hezbollah, emerges as the most plausible candidate for being the
aggressor in the conflict.
To reinforce this central claim, let us briefly review the events of 12 July
2006. First, it is agreed on all sides that there is a clear sense in which
Hezbollah fired the first shots on that day. In particular, it launched a
commando raid within Israeli territory, capturing three Israeli soldiers and
killing two in the ensuing gunfight. Simultaneously, Hezbollah launched a
rocket attack at IDF positions and in the direction of the northern Israeli town
of Shlomi. (Israeli defense officials characterised the latter attack as a
"diversionary tactic"). Moreover, Hezbollah's motive for capturing the
soldiers was evident. It wished to exchange them for Hezbollah fighters held
by Israel, which it immediately offered to do. Declining the offer, Israel sent
troops across the border in an attempt to recapture the kidnapped soldiers.
Their tank hit a landmine and four more soldiers were killed; an additional
soldier was killed in an attempt to recover the bodies. 14
Again, up until this point the fighting fitted the pattern established over
several years. There was nothing particularly unusual in the fact that
Hezbollah captured Israeli soldiers on July 12. They had done so before, and
in January 2004 there was a swap of prisoners between the two sides. There
is also nothing unusual in the fact that troops crossed the blue line, nor in the
fact that soldiers were killed, on either side. This had happened many times
before, as noted. Nor was there anything novel in the fact that civilian
communities were the target of attack, however diversionary. According to
UNIFIL Israel had been sending warplanes as far north as Beirut for years,
and had occasionally launched air-strikes against civilian communities within
Lebanon, most recently in May 2006. 15 It must be emphasised that on July
12, Israel could not claim with any credibility that its actions toward Lebanon
since withdrawing from that country six years earlier fitted a strictly
defensive or reactionary pattern. To the contrary, since May 2000 Israel had
14 UNSC, above n 10; Jonathan Cook "Human Rights Watch Still Denying Lebanon
the Right to Defend Itself"
<http://www.zmag.org/content/showarticle.cfm?ItemID=11048> (last accessed 24
August 2007).
15 UNSC, above n 10.
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 9
committed many more, and more serious, violations of the blue line than had
Hezbollah. 16
The mainstream account is that Israel's markedly escalated response is
explained by the fact that Hezbollah's actions of July 12 were radically out of
step with previous actions by the two sides. The position of Israeli analyst
Shlomo Brom, of the Jaffee Center for Strategic Studies, may be taken as
representative. Writing on July 13, he claims that Hezbollah's July 12 actions
were a "blatant violation" of the informal rules of engagement established
after Israel's withdrawal from southern Lebanon in May 2000. According to
these rules, writes Brom: 17
Hezbollah acts only against military forces and only in the Mount Dov
(Shab'a Farms) sector, and Israel responds in kind. This time, the operation
took place in the western sector of the border and included the shelling of
Israeli settlements. Hezbollah might have refrained from launching this
operation if Israel had reacted more vigorously to previous Hizbullah
attempts to breach the rules.
Brom implies that Hezbollah had been the aggressive party since May 2000,
and that Israel actions had always been defensive and proportionate,
responding only 'in kind'. However, if the UNIFIL reports are accurate – and
again, the observers documented scores of violations committed by both
sides over several years, including the targeting of civilian communities by
Israel – then Brom's argument cannot be sustained. The argument crucially
depends on the claim that Israel's actions were always defensive; that it only
ever responded to Hezbollah attacks. Yet this claim appears to be seriously
mistaken.
This leaves Israel's response to Hezbollah's raid on July 12 as constituting the
best candidate for being the initiating act of aggression in the war. In
16 Not a single Israeli civilian was killed by rocket fire from Lebanon during that six
year period. For a complete list of rocket attacks from Lebanon at Israel since
May 2000, see Stephen Shalom "Lebanon War: Questions and Answers"
<http://www.zmag.org/content/showarticle.cfm?SectionID=107&ItemID=10721>
(last accessed 24 August 2007).
17 Shlomo Brom "The Confrontation with Hizbullah" (13 July 2006) 177 Tel Aviv
Notes <http://www.spme.net/cgi-bin/articles.cgi?ID=812> (last accessed 24
August 2007).
10 Human Rights Research
particular, the Israeli Defense Forces (IDF) launched systemic attacks against
a broad range of military and civilian targets throughout southern Lebanon
and as far north as Beirut. Numerous roads, bridges and buildings were
bombed, as well as the Beirut airport. Within the six-year period under
consideration, these attacks were utterly unprecedented in their scope and
level of destructiveness. By contrast, Hezbollah did not respond with heavy
rocket fire into Israeli cities and towns until well after this initial Israeli
assault. For instance, it did not target Haifa, Israel's third largest city, until
one or two days after the initial Israeli escalation. 18 It also refrained from
targeting Tel Aviv, though most observers think it had rockets that would
reach that far.
I certainly do not wish to imply that there is no controversy about what,
exactly, occurred on July 12 and the days that immediately followed. Yet it is
worth noting that even the Israeli government appears to confirm the account
I have provided of the timing of key events. In particular, it does not dispute
the crucial claim that it first escalated the hostilities. (As one would expect,
the Israeli account does contain differences of emphasis and of course it
characterises Hezbollah as the aggressor.) This is evident from the Israel
Ministry of Foreign Affairs website, where one can read the official IDF
account of the events of July 12 from a report written that day: 19
Throughout the day [July 12], Hizbullah terror organization fired Katyusha
rockets and mortar shells at Israel's northern borders' communities and IDF
posts. In response, the IDF carried out over 100 aerial attacks in Lebanon,
targeting mainly Hizbullah bases. A vehicle, in which two Hizbullah terrorists
were traveling, was targeted in the evening. A number of bridges and roads in
18 Hezbollah leader Hassan Nasrallah denied targeting Haifa – or any other civilian
centers within Israel – until his Beirut offices were bombed on July 14: "Day-by-
Day: Lebanon Crisis – Week 1"
<http://news.bbc.co.uk/2/hi/middle_east/5179434.stm> (last accessed 24 August
2007).
19 Israel Ministry of Foreign Affairs, "IDF Spokesman: Hizbullah Attack on
Northern Border and IDF Response (12 July 2006) Press Release
<http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Terrorism+from+Lebanon-
+Hizbullah/Hizbullah+attack+on+northern+border+and+IDF+response+12-Jul-
2006.htm> (last accessed 24 August 2007).
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 11
Note that the IDF does not claim that on July 12 Hezbollah fired any of its
more sophisticated, longer-range missiles (as it would in the days that
followed). 20 At the same time, the IDF states that it carried out over 100
aerial attacks on targets that included roads and bridges which, I have argued,
represents a clear departure from the informal rules of engagement
established in the wake of Israel's withdrawal from Lebanon in May 2000.
Further evidence to this effect comes from the remarkable Winograd
Commission Interim Report on the war, commissioned by the Israeli
Government and released at the end of April 2007: 21
[I]n making the decision to go to war, the government did not consider the
whole range of options, including that of continuing the policy of
'containment', or combining political and diplomatic moves with military
strikes below the 'escalation level', or military preparations without
immediate military action – so as to maintain for Israel the full range of
responses to the abduction. This failure reflects weakness in strategic
thinking, which derives the response to the event from a more comprehensive
and encompassing picture [my emphasis].
In short, given that even the Israeli government apparently does not dispute
the timing of key events on which the above argument crucially depends, it
seems reasonable to take that timeline as relatively uncontroversial and well-
established.
1.2 Other jus ad bellum criteria
To this point I have focused on the centrally important criterion of just cause.
As noted above, however, there are other criteria that must be met in order to
20 The initial firing of such missiles in any quantity by Hezbollah would indeed have
represented a clear departure from the pattern established over the previous
several years and, in my view, clearly identified Hezbollah as the aggressor.
21 Israel Ministry of Foreign Affairs "Winograd Commission Submits Interim
Report" (30 April 2007) Press
Release<http://www.mfa.gov.il/MFA/Government/Communiques/2007/Winograd
+Inquiry+Commission+submits+Interim+Report+30-Apr-2007.htm> (last
accessed 24 August 2007).
12 Human Rights Research
satisfy the overall requirements of jus ad bellum. These include the important
criteria of 'last resort,' 'proportionality,' and 'right intention'. Of these, I
believe Israel clearly failed to meet the first two, and almost certainly failed
to meet the last. As I think that there are important areas of overlap between
jus ad bellum and jus in bello with respect to the criterion of proportionality,
I shall leave a discussion of that topic for the next section. In the remainder of
this section, however, I shall briefly address the criteria of 'last resort' and
'right intention'.
Consider the criterion of 'last resort'. It holds that to be just, any resort to war
must truly be a last resort. In particular, a state must have pursued all
reasonable attempts to achieve a diplomatic, non-violent resolution to the
dispute before resorting to the use of armed force. Now, it is (arguably) a
conceptual impossibility for a state to satisfy this criterion if it is the
aggressor in a war. Thus if the argument presented above is correct, it
probably suffices to show that Israel failed to meet the criterion of last resort.
Quite simply, it did not need to launch a full-scale assault against Lebanon on
July 12 in response to Hezbollah's capture of Israeli soldiers. For one thing, it
is likely that the soldiers' return could have been secured had Israel agreed to
an exchange of prisoners, as in the past. 22 However, this general point about
last resort can be strengthened. For there was a formal attempt to avoid war
put forward by the Lebanese government, which tried to broker a ceasefire
between Israel and Hezbollah soon after Israel's military escalation on July
12. Israel flatly refused the offer, maintaining that any ceasefire was
contingent upon the return of the captured soldiers. 23
Consider, finally, the criterion of 'right intention'. Just war theory typically
holds that to have a just cause for going to war a state must have,
subjectively, the right sort of intention or 'frame of mind'. Evidently, this sort
of criterion is fraught with difficulties related to determining the intentions of
a collective entity such as a state. Set those aside. In the case of jus ad
bellum, including the present case, it is usually assumed that the right sort of
intention is closely connected to the motive of self-defense, or, perhaps, the
defense of an innocent third party. Given the assumption, standard across the
mainstream of political discourse, that Israel has legitimate and ongoing
22 At the time of writing (August 2007), it looks increasingly likely that this will
finally occur.
23 UNSC, above n 10.
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 13
25 See Adam Shatz "Nasrallah's Game" (20 July 2006) The Nation
<http://www.thenation.com/doc/20060731/nasrallah_game> (last accessed 24
August 2007).
26 Orend, above n 7, 47.
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 15
emerges as the most plausible candidate for being the aggressor in the war.
Unsurprisingly, Israel also fails to meet the criteria of 'last resort' or 'right
intention'. In short, if either side in the armed conflict between Israel and
Hezbollah went to war with a just cause, it was Hezbollah, for it was the only
side that could claim with any plausibility to be acting in self-defense. To be
sure, it could not make this claim until after Israel's escalation of hostilities
later in the day on July 12. We shall see that this first main claim is not
irrelevant to our discussion in the next section, where we address the question
of jus in bello, or the justness of conduct in war.
2 Just conduct in the Israel-Hezbollah war
2.1 Discrimination and non-combatant immunity
As the criterion of 'just cause' is central to jus ad bellum, so the related
principles of 'discrimination' and 'non-combatant immunity' are at the heart of
jus in bello, or the justness of the conduct of war. The principle of
discrimination holds that armed force may not be used indiscriminately. This
means that all reasonable attempts must be made to distinguish legitimate
from illegitimate targets. Although there are different ways to draw this
distinction, I shall follow Brian Orend's suggestion that a legitimate target is
"anything or anyone engaged in harming". 27 This entails that civilians not
directly engaged in the military effort ('non-combatants') are illegitimate
targets and thus cannot be targeted intentionally.
Although it should be obvious upon reflection, it is worth noting that jus in bello,
unlike jus ad bellum, does not pose an 'either/or' question. The fact that one side in a
war fights in an unjust manner hardly guarantees that the other side fights justly.
Indeed, it would be surprising to learn of any side in any war that has ever
conducted itself in an entirely just manner. Now, as I have indicated above, the
mainstream moral account holds that Israel's conduct of the war, though far from
perfect, was still morally superior to Hezbollah's chiefly because the former but not
the latter made a concerted effort to distinguish military from civilian targets. Again,
I shall argue that this claim is mistaken, though the issues in this case are perhaps
less clear than in the case of jus ad bellum. Nevertheless, we shall see that, if
anything, Israel's conduct was morally more culpable than Hezbollah's, particularly
in terms of respecting the principles of discrimination and proportionality.
As a first step toward establishing this claim, let us return to the idea that civilians
not involved in the military effort are illegitimate targets that may not be harmed
intentionally. This formulation leaves open some important questions. For instance,
which targets, exactly, count as legitimate? Enemy soldiers are obvious candidates,
as well as their associated equipment and supply routes. Other fairly uncontroversial
targets include civilian activities directly related to the war effort, such as munitions
factories. All of these targets are subject to the further rule of proportionality – any
bad incurred must be proportional to the good achieved (more on this below) – but
are otherwise regarded within jus in bello as (fairly) unproblematic targets.
Considerably more problematic are infrastructure targets that are designed primarily
for civilian use but that also have military application. Bridges and roads provide
good examples, as do civilian airports. Closer to the far end of clearly unacceptable
targets include basic infrastructure essential to ordinary civilian life, such as water
sanitation and electricity plants. Israel's bombing of electricity generation plants in
Gaza shortly before the attack on Hezbollah, for instance, appears to be a clear
violation of the principle of discrimination.
2.2 Proportionality and the doctrine of double effect
There is another important issue that must be addressed before proceeding.
The above definition of a legitimate target – anyone or anything engaged in
harming – is meant to rule out only the intentional targeting of civilians not
engaged in the military effort. It is silent on the question of whether, and if so
when, civilians may be killed unintentionally. This is a rather large omission,
as soldiers will rarely admit to killing civilians intentionally, and legitimate
military targets are often located near civilian centers. It is, moreover, a
familiar observation that the highly destructive methods of modern warfare
typically produce large numbers of civilian casualties. In any case, there is
another rule associated with jus in bello that addresses the question of when
the foreseen but unintended killing of civilians is permissible. The 'doctrine
of double effect' (DDE) holds that civilians may be killed: 1) when their
deaths, though foreseeable, are not intended either as an end or as a means to
some further end; and 2) when the bad represented by their deaths is
proportional to the good that the military action achieves.
For present purposes, I shall focus on rule 2, which highlights the principle of
proportionality. It is important to note, however, that this principle applies
quite broadly within jus in bello, insofar as the expected bad of any action
must always be proportional to the expected good. The first point I wish to
make about proportionality is fundamental. In particular, it is reasonable to
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 17
other hand, killed nearly three times as many IDF soldiers (119) as it did
civilians. Thus, the ratios of civilian to military dead are roughly reversed in
the two cases. The respective ratios for civilians wounded are similar. 32
In short, judging only by casualty figures it would seem that Hezbollah did a
much better job of respecting the principle of discrimination than Israel did.
The figures become even more striking when one considers Israel's vast
advantage in military technology, in particular, its possession of far more
accurate weapons. These facts put the mainstream account in an
uncomfortable position, to say the least. How could Israel, which supposedly
respects the principle of discrimination and possesses highly accurate
weapons, kill a far greater ratio of civilians to soldiers than Hezbollah, which
supposedly does not respect the principle of discrimination and possesses
comparatively inaccurate weapons?
2.4 Civilian shields
The mainstream account has a ready reply. The reason that there were so
many more Lebanese than Israeli civilian casualties is that Hezbollah
effectively used civilians as 'shields' by deliberately locating its rockets and
fighters within or very close to civilian population centers. Even with its
highly accurate weaponry, there was no way for Israel to target Hezbollah
fighters and weapons without at the same time harming innocent civilians. At
least one commentator took this argument a step further, arguing that in such
cases we should hesitate to think of all civilians as innocent bystanders.
Instead, we should think in terms of a 'continuum of civilianity', reflecting the
fact that some civilians are willingly aiding the enemy and hence are more
legitimate targets than others who do so unwillingly. 33 In any case, the
mainstream account maintains, it is Hezbollah's cynical actions that put
civilians at risk, and it is thus Hezbollah not Israel that bears responsibility
for Lebanese civilian casualties.
Michael Walzer has summarised this sort of reply – albeit with respect to
Palestinians – as follows: "When Palestinian militants launch rocket attacks
from civilian areas, they are themselves responsible – and no one else is – for
the civilian deaths caused by Israeli counterfire". 34 I assume that Walzer
thinks the same is true of Hezbollah militants, and I shall take his formulation
as representative of the mainstream reply. It contains two main elements.
First, there is an (implied) empirical claim that Hezbollah did indeed launch
attacks against Israel from within civilian areas. Second, there is a
legal/moral claim that in such cases Hezbollah bears full moral responsibility
for any civilian deaths caused by Israeli retaliation against Hezbollah fighters.
I shall consider these claims in reverse order.
Assume for the moment that the empirical claim is correct. Does the
legal/moral claim follow? It is hard to find any basis, either in international
law or in basic morality, for thinking that it does. As Mark Levine has
pointed out, Walzer's claim simply contradicts central components of
international law designed to protect civilians, such as the Hague and Geneva
conventions. Israel has a legal responsibility not to fire indiscriminately at
civilians, whatever the provocation. 35 Stephen Zunes quotes a recent Human
Rights Watch report that confirms this judgment: "Deploying military forces
within populated areas is a violation of international humanitarian law, but
that does not release Israel from its obligations to take all feasible precautions
to minimize harm to civilians and civilian property during military
operations". 36
Turning to morality, I know of no moral-theoretical approach,
consequentialist or deontological, that would vindicate Walzer's claim.
Doubtless it is true that if Hezbollah deliberately places its forces in close
proximity to civilians, it bears considerable responsibility for any harm done
to them. But that is no reason to think that Israel is thereby entirely absolved
of moral responsibility for such harm. Standard consequentialist theories
34 Walzer, above n 3.
35 Mark LeVine "Michael Walzer's Tortured Ethics" (31 July 2006) Znet
<http://www.zmag.org/content/print_article.cfm?itemID=10681§ionID=107>
(last accessed 24 August 2007).
36 Stephen Zunes "Congress and the Israeli Attack on Lebanon: A Critical Reading"
(22 July 2006) Foreign Policy in Focus <http://www.fpif.org/fpiftxt/3381> (last
accessed 24 August 2007).
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 21
would apportion responsibility to both sides in such a case. Nor is there any
obvious deontological or Kantian route to support Walzer's contention, which
seems to countenance the possibility of unlimited killing of innocents.
Specifically, Walzer does not qualify his claim with respect to the number of
innocents killed in a way that might bring the claim within the scope of the
DDE and the principle of proportionality. In short, absent considerable
further argument Walzer's claim is untenable as a matter of basic morality.
Let us return, then, to the mainstream account's implied empirical claim that
Hezbollah effectively used civilians as 'shields'. Is there good evidence to
support this? The most authoritative source in support of the claim is Jan
Egeland, UN Undersecretary-General for Humanitarian Affairs, who on July
25 accused Hezbollah of "cowardly blending … among women and
children". 37 This criticism was repeated across the mainstream, and indeed
has attained the status of received wisdom. The criticism of Hezbollah is
meant to contrast, of course, with Israel, which virtually no one in the
mainstream thinks is guilty of using civilian shields. The reality is
considerably less clear, and the reports of the major human rights
organisations point to a rather different conclusion. Although the reports did
find that Hezbollah occasionally stored weapons in and operated from
civilian areas (actions which count as serious violations of various laws of
war), they did not find evidence that Hezbollah was deliberately using
civilians to shield its fighters from Israeli attack. Most important for present
moral purposes, the reports explicitly deny that Hezbollah's blending with
civilians was what explained the high number of Lebanese civilian casualties.
Rather, they clearly identify Israel's 'indiscriminate' use of lethal force (also a
major war crime) as the explanation for those casualties.
37 "UN Humanitarian Chief Blasts Hezbollah" (25 July 2006) Jeruselem Post
Jeruselem
<http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShow
Full&cid=1153291989232> (last accessed 24 August 2007). See also Jonathan
Freedland "For Palestinians' Sake, Olmert Must Emerge with His People's
Respect" (2 August 2006) The Guardian London
<http://www.guardian.co.uk/commentisfree/story/0,,1835211,00.html> (last
accessed 24 August 2007).
22 Human Rights Research
Consider, first, a Human Rights Watch study released at the end of the
fighting in August 2006, which directly addressed the issue of civilian
shields. According to the report: 38
Human Rights Watch found no cases in which Hezbollah deliberately used
civilians as shields to protect them from retaliatory IDF attacks. Hezbollah
occasionally did store weapons in or near civilian homes and fighters placed
rocket launchers within populated areas or near UN observers, which are
serious violations of the laws of war because they violate the duty to take all
feasible precautions to avoid civilian casualties. However, those cases do not
justify the IDF's extensive use of indiscriminate force which has cost so many
civilian lives. In none of the cases of civilian deaths documented in this report
is there evidence to suggest that Hezbollah forces or weapons were in or near
the area that the IDF targeted during or just prior to the attack.
These findings, and in particular the claim that IDF attacks failed to
discriminate between military and civilian targets, are echoed by an Amnesty
International report also released in August 2006:
During more than four weeks of ground and aerial bombardment of Lebanon
by the Israeli armed forces, the country's infrastructure suffered destruction
on a catastrophic scale. Israeli forces pounded buildings into the ground,
reducing entire neighbourhoods to rubble and turning villages and towns into
ghost towns, as their inhabitants fled the bombardments. Main roads, bridges
and petrol stations were blown to bits. Entire families were killed in air strikes
on their homes or in their vehicles while fleeing the aerial assaults on their
villages. Scores lay buried beneath the rubble of their houses for weeks, as the
Red Cross and other rescue workers were prevented from accessing the areas
Summarising this section, we have examined the question whether the great
disparity in civilian casualties between Israel and Hezbollah can be explained
by the latter's use of 'civilian shields'. We have seen that, although Hezbollah
fighters sometimes operated in or near civilian centres, there is not good
evidence – at least according to the major human rights organisations – that
they deliberately used civilians to shield themselves from Israeli attack.
Indeed, there is evidence that Israel's own behavior in this respect was
comparable to Hezbollah's. Most important, there does not appear to be any
basis for the claim that Hezbollah's use of civilian shields is what explains the
high Lebanese civilian casualty toll. Rather, the evidence suggests that that
toll is best explained by Israel's indiscriminate use of air power.
2.5 Hezbollah missile attacks against Israel
To this point I have focused on Israeli attacks within Lebanon and
Hezbollah's alleged use of civilian shields. I have said very little about
41 Amnesty International "Out of all Proportion: Civilians Bear the Brunt of the
War" (21 November 2006)
<http://web.amnesty.org/library/Index/ENGMDE020332006?open&of=ENG-
ISR> (last accessed 24 August 2007).
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 25
Some of the rockets, such as those that killed eight rail workers in Haifa on
July 16 and two young brothers in Nazareth on July 19, have warheads
packed with thousands of metal ball bearings that spray out from the blast.
Launched on civilian areas, the ball bearings are intended to inflict maximum
harm. Hezbollah claims that some of its attacks are aimed at military bases
inside Israel, which are legitimate targets. But most of the attacks appear to
have been directed at civilian areas and have hit pedestrians, hospitals,
schools, homes and businesses.
42 Human Rights Watch "Hezbollah Must End Attacks on Civilians: Rocket Attacks
on Civilians in Israel are War Crimes" (5 August 2006)
<http://hrw.org/english/docs/2006/08/05/lebano13921_txt.htm> (last accessed 24
August 2007).
26 Human Rights Research
Amnesty's justification for the rule that civilians must never be the target of
reprisal attacks in war is mainly a utilitarian one, resting on the idea that
morality is ultimately about maximising good consequences or – more
relevantly in this case – minimising bad ones. And it is true that this rule, if
generally adhered to, would minimise or at least significantly reduce 'the
devastation caused by war on non-combatants', an undoubtedly worthy goal.
However, without questioning in any way the legal applicability of this rule
to Hezbollah's attacks on Israel, I wish to highlight some moral complexities
that seem to apply to this case. Let me emphasise that the legal implications
of these complexities for international laws designed specifically to protect
civilians are unclear to me. In particular, I am explicitly not claiming that
these complexities show that the law prohibiting reprisal attacks on civilians
should be changed. Nevertheless, they seem sufficiently important, and
sufficiently likely to be repeated in other cases – to be worth discussing here.
To be clear, these complexities arise only if I am correct that Israel was the
aggressor and Hezbollah was defending itself in the war. To this one must
add the fact of Israel's massive military superiority, as well as the apparent
fact that it was determined to strike a crippling blow to Hezbollah by
44 Recall that Israel flatly refused an attempt by the Lebanese Government to broker
a ceasefire shortly after the war started: see footnote 23. Also consider the
following assessment by Amnesty International itself, in its August report on
Israeli attacks on Lebanon:
"The widespread destruction of apartments, houses, electricity and water services,
roads, bridges, factories and ports, in addition to several statements by Israeli
officials, suggests a policy of punishing both the Lebanese government and the
civilian population in an effort to get them to turn against Hizbullah. Israeli
attacks did not diminish, nor did their pattern appear to change, even when it
became clear that the victims of the bombardment were predominantly civilians,
which was the case from the first days of the conflict".
45 One might also point out, in this connection, that Hezbollah leader Hassan
Nasrallah publicly declared at the end of August that he would not have ordered
the raid on Israeli soldiers had he known that Israel was going to escalate its
response in the way that it did: "Hezbollah Leader Nasrallah Regrets War" (28
August 2006) <http://www.cbc.ca/world/story/2006/08/27/nasrallah-
abduction.html> (last accessed 24 August 2007).
28 Human Rights Research
option has much to be said for it from a moral standpoint, it goes without
saying that most people would reject it out of hand. It is also worth recalling
Article 51 of the UN charter:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security …
46 Edward Cody and Molly Moore "The Best Guerrilla Force in the World" (14
August 2006) Washington Post Washington A01.
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 29
committing the war crime of aggression. I am hardly the first to suggest that
the structure of the Security Council is undemocratic and fundamentally
unjust. In short, the best answer to the moral complexities I have pointed out
is probably one that involves structural change to the UN Security Council.
Summarising this section, it is clear that Hezbollah's rocket attacks on
northern Israel count as serious violations of international laws of war. I do
not wish to say that such attacks were justified, given their indiscriminate
nature. However, other facts surrounding the case point up moral
complexities that, in my view, are obscured by the simple judgment that
Hezbollah's rocket attacks constitute war crimes – particularly when nothing
else is said about the matter. As noted, I am not sure what implications these
complexities have for international law specifically designed to protect
civilians in war. However, I think they provide additional support to the
already plausible idea that the UN Security Council should be made more
democratic and accountable to all of its members.
2.6 Other aspects of the principle of discrimination
The scope of the principle of discrimination is wider than the concern for
civilian casualties, and it must be emphasised that there was a vast disparity
in damage done to civilian targets generally by the two sides in the war.
Hezbollah's rockets, though they landed in most major cities and towns in
northern Israel, did limited damage to civilian infrastructure. They also did
not hit Tel Aviv, despite the fact that Hezbollah probably had the capacity to
do so. Israel, on the other hand, did massive damage to civilian infrastructure
throughout the whole of Lebanon. The United Nations Development
Programme has estimated that some 35,000 Lebanese homes and businesses
were destroyed by the Israeli military, as well as one quarter of the country's
road bridges and overpasses. Total damage within the country exceeded US
$15 billion. 47 As of 1 December 2006 there were still 200,000 internally
displaced refugees within Lebanon. 48
Other criteria generally included within jus in bello tend to reinforce the
importance of the principle of discrimination. In the present case, they also
tend to reinforce the claim that Israel's conduct in the war was morally
inferior to Hezbollah's when measured against this principle. Consider, for
instance, the rule that certain weapons are prohibited because they are
indiscriminate in their effects. I have already mentioned Hezbollah's use of
ball bearings in its rockets, which are likely prohibited under this rule. Israel,
however, made extensive use of at least two even more objectionable
weapons that are also likely prohibited under this rule. One of these was
white phosphorus munitions, which cause severe burns and are often
classified as a chemical weapon. There is good evidence that Israel used these
against Lebanese civilians, contravening international law. 49 More deadly yet
was Israel's widespread use of cluster bombs, which are comparable to land
mines in their propensity to kill innocent civilians. These were used
throughout the conflict by Israel. In the last few days of the war before the
ceasefire, Israel fired some 1800 cluster bombs, spraying millions of
bomblets throughout southern Lebanon. These continue to kill Lebanese
civilians, especially young children, to this day. 50 Finally, in addition to the
extensive damage that Israel wreaked upon Lebanese infrastructure, it also
was responsible for a major environmental catastrophe: its bombardment of
Lebanese oil reserves caused an oil slick in the Mediterranean three times
larger than that of the Exxon Valdez in 1989. 51
Summarising this second section, I have argued that although neither
Hezbollah nor Israel conducted their war in a way that came close to meeting
the criteria of jus in bello, Israel's conduct in the war was morally more
culpable in this regard. It killed a far higher number of civilians and a far
higher ratio of civilians to soldiers. It caused widespread destruction to
Lebanese infrastructure. And it was responsible for a major environmental
catastrophe within Lebanon. Moreover, Israel's main defense against these
claims – that the high Lebanese civilian casualty toll was the result of
Hezbollah's use of 'civilian shields' – is unsupported by the evidence. Indeed,
there is evidence that Israel's use of civilian shields was comparable to
Hezbollah's. Taken together, and particularly considered in light of the fact
that Israel was the aggressor in the war, these claims show that the
mainstream moral account is mistaken on the question of jus in bello.
3 Intentions and proportionality, again
Doubtless some readers will think that I have yet to address perhaps the most
important issue pertaining to the morality of the war, and I would like briefly
to consider it before concluding. I refer to the alleged fact that Hezbollah, like
other of Israel's enemies, ultimately intends its destruction. This is meant to
contrast with Israel, which is supposedly committed to living alongside its
neighbours in peace if only the latter would return the favour. Walzer gives
voice to this concern: "Israel is now at war with an enemy whose hostility is
explicit, extreme, unrestrained, and driven by an ideology of religious
hatred". 52 Across the mainstream, it is virtually taken for granted that
Hezbollah, like the Palestinian group Hamas and others, is committed to
Israel's destruction and will stop at nothing to accomplish this goal. This
alleged existential threat is also relevant to the issue of proportionality,
particularly with respect to the question of jus ad bellum. Presumably, it is
what Israeli foreign minister Tzipi Livni had in mind in responding to the
criticism that Israel's military actions against Hezbollah were grossly
disproportionate: "Proportionality is not compared to the event, but to the
threat, and the threat is bigger and wider than the captured soldiers [that
provided the immediate trigger for the war]". 53
52 Walzer, above n 3.
53 See T Nadelhoffer "Lack of Proportionality?"
<http://leiterreports.typepad.com/blog/2006/07/lack_of_proport.html> (last
accessed 24 August 2007).
32 Human Rights Research
Addressing this claim about ultimate intentions is well beyond the scope of
this paper. However, a few comments may be in order. First, Hezbollah is a
reasonably large organisation with considerable popular support and
representation in Lebanon's parliament. As noted above, it came into
existence in the wake of Israel's 1982 invasion of Lebanon. It would be
surprising indeed if many of Hezbollah's members did not see its primary
military purpose as one of legitimate defense against Israeli aggression. If
this is correct, then Walzer's claim that Hezbollah is "driven by an ideology
of religious hatred" is, at best, a gross over-simplification. Second, even
granting that Hezbollah harbours malign intentions toward Israel, it can be
pointed out that a rather similar claim has been made about Israel itself. In
particular, it is fairly common within academic scholarship – if not the
mainstream media – to conceive of Zionism as a form of ethnic nationalism
with an expansionist agenda. 54 The prime target of this presumed ideology
has been the Palestinians, 750,000 of whom were driven from and/or fled
their land in 1948, and – denied the right to return to their homeland for the
past 60 years – millions of whom survive either in refugee camps or under
Israeli occupation in the West Bank and Gaza.
If correct, this suggestion about the ethnic-nationalist and expansionist
ideology of Zionism is hardly irrelevant to the recent war. There is evidence,
for instance, that Zionist and Israeli leaders have traditionally seen southern
Lebanon as falling within the final borders of Israel. 55 And, given Israel's
military actions toward Lebanon over the last few decades, one can hardly
dismiss such ideology as mere talk. Nor can it be claimed that such hostile
Israeli attitudes and intentions belong only to the remote past. The current
Olmert government, for instance, has appointed the ultra-rightist Avigdor
Lieberman, an avowed advocate of 'transferring' most of the Palestinian
population – including Israeli Arabs who refuse to sign an oath of loyalty to
54 See, for example, Benny Morris Righteous Victims: A History of the Zionist-Arab
Conflict, 1881-2001 (Vintage Books, New York, 2001) 676 and following; Tom
Segev One Palestine Complete: Jews and Arabs Under the British Mandate
(Henry Holt and Co, New York, 2000) 104-09; Ilan Pappe A History of Modern
Palestine (Cambridge University Press, Cambridge, UK, 2004) 72 and following.
55 This view dates back at least to 1919, the year in which the Zionist Organisation
presented a map at the Versailles Peace Conference that envisioned the northern
border of a prospective Jewish state at the Litani River: Morris, above n 54, 494.
MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR 33
56 Ben Lynfield "The Rise of Avigdor Lieberman" (14 December 2006) The Nation
<http://www.thenation.com/doc/20070101/lynfield> (last accessed 24 August
2007).
57 Miko Peled "The Answers have Changed" (10 January 2007) Znet
http://www.zmag.org/content/showarticle.cfm?SectionID=107&ItemID=11822
(last accessed 24 August 2007).
34 Human Rights Research
Second, I have argued that although both Israel and Hezbollah were guilty of
war crimes with respect to the way they conducted themselves during the
war, Israel's conduct was, morally, more culpable in this respect. In
particular, I have argued that the great disparity in civilian casualties between
the two sides is best explained by Israel's indiscriminate and disproportionate
use of force in its aerial bombardment of Lebanon. Related, the reports of the
major human rights groups do not support Israel's claim that the large
Lebanese civilian casualty toll is explained by Hezbollah's use of 'civilian
shields'.
As I have argued, the international legal implications for the fact that Israel's
conduct was morally more culpable than Hezbollah's are not clear with
respect to international humanitarian law – that is, law designed specifically
to protect civilians in war. Considered in isolation – that is, apart from the
question of which side was the aggressor in the war – the best thing to say
about these legal implications may be that Israel's crimes were more
extensive than Hezbollah's: they differed in degree if not in kind. However, I
have tried in this paper to take a wider view, one that emphasises the priority
of questions of just cause over questions of just conduct. Given this wider
perspective, I believe the proper focus in thinking about the morality of the
war should be on Israel's act of initial aggression. Its more extensive
violations of the laws of war should be viewed in the context of this centrally
important fact. As suggested, the most important international legal
implications of the present argument probably lie with the decision-making
structure of the UN Security Council itself. 58
58 I would like to thank Josh Glasgow for very useful discussion on an earlier draft
of this paper.