Since I am not qualified to discuss the legal questions raised in your post, I am going to limit my comments to two other things. First the question of the media in Israel. While I haven't been watching so much of the news from the stations that are mentioned in the WP article, I can say that in the largest circulation daily Yediot Ahronot and on the radio the death toll and impact of the fighting on the Gazan civilian population is being covered. See these two op-eds in recent issues of Yediot Ahronot. In addition, Nahum Barnea, seen by many as one of the most influential Israeli journalists, has a very critical op-ed piece in Monday's paper on the very question of civilian casualties. Is the majority of the reporting and the sentiment pro-Israeli? Yes, and that shouldn't be surprising to anyone. Gideon Levy's and many other people's problem is that they cannot imagine someone who has moral doubts about Israel's actions and Palestinian civilian deaths, yet still supports Israel's right to attack Hamas, even with the knowledge that innocent civilians will unfortunately be killed.

Second, you wrote that "Defenders of Israel's Gaza campaign argue that Hamas routinely, and as a matter of policy, targets civilians--even if it is pretty ineffectual." I do not think that people realize one of the main reasons why there have been so few Israeli civilian casualties. Every Israeli apartment/home that has been built since 1991 must have a room which is essentially a small bomb shelter. People have been sleeping in them, or in the 15-30 seconds that they have after the sirens sound until rockets strike, they run to them. In addition, there are public bomb shelters in many places, and when they aren't available, areas with reinforced blast walls have been placed on streets in areas within rocket range of Gaza. Israeli newspapers have been having extensive instructions regarding how one should conduct themselves during a rocket attack in order to minimize the possibility that they will be injured and how to treat someone who is wounded in a rocket attack.
 

Why are similar safety rules not in place in Gaza?

As to the original post, this statement interested me:

Under Article 51 of the U.N. Charter, every state has an inherent right of self-defense, and it cannot be second-guessed by anyone else. Period.

Reading that provision:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The clause "until the Security Council has taken measures necessary to maintain international peace and security" etc. appears to put the right of one nation alone over its self-defense into some context.

As to the issue of a "large-scale nuclear attack," the ruling in question appears to be somewhat hazy. For instance, it held "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."

We are not talking Israel say-so that could not be "second-guessed."
 

[Decent Disclosure: I am an Israeli Lawyer] First things first, I don't think that all Israelies are for the war,there are a few voices in the blogoshpere, even in english (Like mine) against this war, as it is a political one and a war for the masses to satisfy their killing pleasure.

As for the legality of the war, I agree with most of what you said. The only thing is that if you're looking through Israel's supreme court decisions, you have to understand that Israel has yet to accept the material provisions of the Geneva Convention.

IDF also ignored the Supreme Court's decision against the "Targeted Killings" and continues to kill without prejudice.
 

It is certainly news to me that art. 51 of the Charter modified the pre-existing (Caroline case) rules on self-defence. As far as I can tell from some quick literature study, the more common view is that this article leaves the pre-charter rules on self-defence intact, neither adding nor subtracting to them.
 

You wrote:

“ I think the war passes the "last resort" test, because it seems clear that Israel has no non-military way of stopping the rocket attacks. “

This is at best highly debatable.

As you know there was a cease-fire in place, which, although both sides violated it, held relatively well for six months, and would have held better, had Israel been willing to be more flexible in its attitude towards Hamas. Israel was not interested in extending the cease-fire precisely because it was interested in destroying Hamas, or at least Hamas’ capability of smuggling arms into the Gaza strip. At best a very limited retaliation was justifiable. But the narrative in which Hamas, unprovoked, began to lob rockets in Israel, is simply false. Gaza was under a siege, and Palestine is under a forty-year occupation.

"That's why I think there is no question that Israel's war is legal in the JAB sense."

I realize that appealing to Just War theory is problematic to defend Hamas’s actions, since Hamas’ legitimacy as the power in Gaza is debatable (It is less difficult to defend, say, the PA’s right to self-defence, but still difficult) But I would like for once to have a discussion of the rights of the Palestinians to defend themselves militarily from Israel’s use of power against them. Once again, I realize that the Palestinians are at a disadvantage because they do not possess a recognized state as such. Still, the Palestinian Authority is recognized, and most people recognize that the Palestinians have a right to a state. You manage to come to the conclusion JAB legality without using terms like “siege,” “occupation,” “economic power,” “effective control” “thwarting of the right of the Palestinian people to self-determination.”

Again, I understand (I think) that from the standpoint of International Law, non-states are discriminated against, and that even peoples under Occupation have limited ability to resist. But it seems that not to mention these points is simply to accept the Israeli narrative that the Hamas attacks were unprovoked. This bothers me because it bequeathes to Israel ab initio rights and understandings that they are not bequeathed to Palestinians. Even if one accepts the premise that there are two peoples legitimately fighting for control over the land (itself an enormous concession to the Zionist settlers over the indigenous natives), surely the rights of the Palestinians to life, liberty, and the pursuit of happiness are no less than those of the Israelis – unless one wants to appeal again to the state/non-state distinction.

“So what about the Ghayan killing that Levy mentions? Ghayan was a senior Hamas leader, and seems like a lawful target under AP I. But the dead included his wives, several children, and whoever else was around at the time. Is that level of death proportionate to the value of the military objective, as AP I requires? How on earth do you tell?”

I would refer you to the IDF’s own investigation into the assassination of Salah Shahadeh, which, as Levy, is quite similar to the Ghayan assassination.
“The operation resulted in the elimination of a major terrorist leader, who was sought through intelligence and operational means for a long time. At the same time, the inquiry found shortcomings in the information available, and the evaluation of that information, concerning the presence of innocent civilians near Shehadeh, who at the time was in an operational hide-out.
“The IDF and the ISA stated that if their information had indicated with certainty the presence of innocent civilians in Shehadeh's vicinity, the timing or the method of the action would have been changed, as was done a number of times in the past. “

http://www.mfa.gov.il/MFA/Government/Communiques/2002/Findings%20of%20the%20inquiry%20into%20the%20death%20of%20Salah%20Sh
Of course, this is not what the IDF says now.
 

In Gaza, the "police" (the Executive Force or Tanfithya) is a paramilitary force, not a civilian police in our sense. As Jane's describes it: "The force, which is commanded by Colonel Abu Obeida al-Jarah, a former Hamas operative, often co-ordinates its activities with the Izz ad-Din Al-Qassam Brigades."

Hamas has no army. It calls its armed forces a police, so as not to openly contest the nominal authority of the PA President. War allows the targeting of actual soldiers, no matter what they may happen to call themselves for political purposes.
 

Monday, 12 Jan 08 - BBGR-GWB-8

Just 8 days before the world can say "Bye-Bye and Good Riddance to George Walker Bush"

In in his generally thoughtful and welcome post Professor Laban looks to the classic theory of the "just war" and, as he rightly points out, war must be a matter of last resort to be categorised as "just".

Now that we have a UN Security Council apparatus, I doubt that any UN Member state can rely on the "just war" basis without first formally asking the UN Security Council to take Chap VII action to remove the threat to peace and security.

Professor Luban asserts:-

"Under current international law there is little doubt that Israel's attack is legal......Under Article 51 of the U.N. Charter, every state has an inherent right of self-defense, and it cannot be second-guessed by anyone else. Period."

I do not think that assertion is correct in present circumstances. It is necessary to look at the entire text of Article 51 and its important limitations:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

It is not open to a UN Member State to allow armed attacks to continue over a long period and then suddenly to go off on a frolic of its own at a time of its choosing and claim the Article 51 right of self-defence.

Article 51 is the exception to deal with a sudden and unannounced armed attack. In such cases there is a right to take immediate measures in self-defence, but there is also an obligation (the word used is "shall" not "may") to report the situation immediately to the UN Security Council which may then decide what needs to be done. The Security Council is the judge, not the Member State.

The Hamas rocket attacks into Southern Israel have been going on for 3 years now. A point the Israeli Hasbara spin machine has been emphasising because it continually refers to 8,000 attacks (which is the total over 3 years) while studiously refraining to mention the very limited number of casualties thereby occasioned.

Was the threat to security immediately reported to the UN Security Council with a formal request for UNSC enforcement action once the Israeli government had determined to launch is air offensive 17 days ago? Of course not! Why not?

Because the very last thing the government of Israel wanted was for the UN Security Council to be seized of the matter. Israel has been in default of its obligations under UN Security Council resolutions binding on it since 1967 recited in the latest UNSC Resolution Resolution 1860 (2009) of 8th July 2009 the text of which I have set out in full on this earlier thread.

Further, as I point out on the earlier thread, once the UNSC was seized of the matter and had passed Resolution 1860 (2009), the obligation on Israel as a UN Member State was to comply, which it has not done. Why not?

Because Israel believes that it can rely on the Bush Administration to veto any Chapter VII peace enforcement action - for so long as the Bush Administration remains in office - and so it has resolved to defy the will of the UN for the time being. One hopes that the approach of the new Administration will be very different.

It may now be helpful to look at the view of Professor Anthony Cordesman of the Centre for Strategic and International Studies who assessed the situation on 9th January 2009 link here. Those who followed the ill starred and equally unlawful Bush/Blair "Enterprise of Iraq" will recall Professor Cordesman as a frequent expert witness in Congressional hearings who view nearly always turned out to be right. He speaks not in terms of legality, but it terms of practical results - and what he says is not encouraging. This is a small extract but the full synopsis is well worth reading:

"What is the strategic purpose behind the present fighting? After two weeks of combat Olmert, Livni, and Barak have still not said a word that indicates that Israel will gain strategic or grand strategic benefits, or tactical benefits much larger than the gains it made from selectively striking key Hamas facilities early in the war. In fact, their silence raises haunting questions about whether they will repeat the same massive failures made by Israel’s top political leadership during the Israeli-Hezbollah War in 2006. Has Israel somehow blundered into a steadily escalating war without a clear strategic goal or at least one it can credibly achieve? Will Israel end in empowering an enemy in political terms that it defeated in tactical terms? Will Israel’s actions seriously damage the US position in the region, any hope of peace, as well as moderate Arab regimes and voices in the process?

To be blunt, the answer so far seems to be yes. To paraphrase a comment about the British government’s management of the British Army in World War I, lions seem to be led by donkeys. If Israel has a credible ceasefire plan that could really secure Gaza, it is not apparent. If Israel has a plan that could credibly destroy and replace Hamas, it is not apparent. If Israel has any plan to help the Gazans and move them back towards peace, it is not apparent. If Israel has any plan to use US or other friendly influence productively, it not apparent.

As we have seen all too clearly from US mistakes, any leader can take a tough stand and claim that tactical gains are a meaningful victory. If this is all that Olmert, Livni, and Barak have for an answer, then they have disgraced themselves and damaged their country and their friends. If there is more, it is time to make such goals public and demonstrate how they can be achieved. The question is not whether the IDF learned the tactical lessons of the fighting in 2006. It is whether Israel's top political leadership has even minimal competence to lead them" .

Ouch!

Professor Luban refers to the Washington Post article pointing out that the true horror of Gaza is being with-held from the Israeli public. Self-censorship under the Hasbara Directive? There was anger enough when a Vatican official referred to the situation of the people of Gaza in 3rd Reich terms, but it has to be said that the economic squeeze on the inhabitants of Gaza resembles nothing so much as a 3rd Reich Ghetto - people walled up unable to leave because borders are closed - with insufficent food, water, electricity, medical supplies - even sanitation. And that was the situation before the incursion. And for 17 days they have been bombed and shelled with munitions and equipment provided by the USA. See this report from the Independent's Gaza correspondent Soon we'll have nowhere left to run. Nowhere in Gaza is safe.

This drama is being played out on live TV throughout the world. Resentment in the Arab world is starting to imperil the governments of the "moderate" Arab neighbours. It may also inspire more young people to the way of terrorism. Are those consequences worth the short-term electoral advantage which may be gained from this immoral and unlawful polic ?

Gideon Levy in today's Haaretz has this op-ed Things One Sees from The Hague is in no doubt:

"When the cannons eventually fall silent, the time for questions and investigations will be upon us. The mushroom clouds of smoke and dust will dissipate in the pitch-black sky; the fervor, desensitization and en masse jump on the bandwagon will be forever forgotten and perhaps we will view a clear picture of Gaza in all its grimness. Then we will see the scope of the killing and destruction, the crammed cemeteries and overflowing hospitals, the thousands of wounded and physically disabled, the destroyed houses that remain after this war.

The questions that will beg to be asked, as cautiously as possible, are who is guilty and who is responsible. The world's exaggerated willingness to forgive Israel is liable to crack this time. The pilots and gunners, the tank crewmen and infantry soldiers, the generals and thousands who embarked on this war with their fair share of zeal will learn the extent of the evil and indiscriminate nature of their military strikes. They perhaps will not pay any price. They went to battle, but others sent them.

The public, moral and judicial test will be applied to the three Israeli statesmen who sent the Israel Defense Forces to war against a helpless population, one that did not even have a place to take refuge, in maybe the only war in history against a strip of land enclosed by a fence. Ehud Olmert, Ehud Barak and Tzipi Livni will stand at the forefront of the guilty. Two of them are candidates for prime minister, the third is a candidate for criminal indictment....

The first echoes can already be heard. This past weekend, the UN and the Human Rights Commission in Geneva have demanded an investigation into war crimes allegedly perpetrated by Israel. In a world in which Bosnian leaders and their counterparts from Rwanda have already been put on trial, a similar demand is likely to arise for the fomenters of this war. Israeli basketball players will not be the only ones who have to shamefully take cover in sports arenas, and senior officers who conducted this war will not be the only ones forced to hide in El Al planes lest they be arrested. This time, our most senior statesmen, the members of the war kitchen cabinet, are liable to pay a personal and national price.

I don't write these words with joy, but with sorrow and deep shame. Despite all the slack the world has cut us since as long as we can remember, despite the leniency shown toward Israel, the world might say otherwise this time. If we continue like this, maybe one day a new, special court will be established in The Hague."

At least there are still those in Israel who have the courage to speak out.

But what will be the public reaction when the general population realises what has been done in their name? And with the great American public, today distracted by domestic concerns, when will they come to terms with the Bush Administration's complicity?
 

Proportionality is an aspirational concept which admits no objective definition and thus cannot be applied as law except on a completely arbitrary basis.

Instead, proportionality has devolved into a lawfare propaganda weapon used by those who routinely commit war crimes (and the supporters or apologists for war criminals) against western militaries to use the West's respect for the rule of law against it.
 

Instead, proportionality has devolved into a lawfare propaganda weapon used by those who routinely commit war crimes (and the supporters or apologists for war criminals) against western militaries to use the West's respect for the rule of law against it.

# posted by Bart DePalma : 9:50 AM


Is that different from when you used proportionality to try to justify torture?
 

bb said...

Is that different from when you used proportionality to try to justify torture?

You have it backwards again.

In fact, the treaty and statutory definition of torture as "severe pain" is itself another riff on the subjective proportionality theme that cannot be objectively defined. I have been frequently on record here and elsewhere criticizing the application of the torture definition as criminal law because it can only be applied arbitrarily.
 

I have been frequently on record here and elsewhere criticizing the application of the torture definition as criminal law because it can only be applied arbitrarily.

# posted by Bart DePalma : 11:05 AM


And you've had your ass handed to you in the process.
 

Very thoughtful and comprehensive post.
 

Same to you.
 

LRS Bart writes:-

"Proportionality is an aspirational concept which admits no objective definition and thus cannot be applied as law except on a completely arbitrary basis.

Instead, proportionality has devolved into a lawfare propaganda weapon used by those who routinely commit war crimes (and the supporters or apologists for war criminals)against western militaries to use the West's respect for the rule of law against it."

One is tempted simply to express one's frustrations with this blog's resident "loathsome spotted reptile", but for once, and undoubtedly by accident rather than design, LSR Bart has hit on something quite important.

International Treaties are not to be interpreted solely by reference to national jurisprudence. In the judicial review of administrative action, the concept of "proportionality" at one time did not enter into the common law repertoire of considerations. But in the majority of European legal systems the concept of proportionality has always been part of "droit administratif .

Since the UK's entry into the European Union, the concept has come into English law too because when reviewing administrative action under either EU law or in relation to the European Convention on Human Rights, the Court has now to consider whether the action of the executive was "proportionate" (i) to the mischief and (ii) to competing rights.

Take a simple UK example: A state has the right to expel an alien. In classic common law judicial review, the enquiry on judicial review would have been by reference to the following criteria: (i) was the Secretary of State's decision intra vires; (ii) did the Secretary of State take into consideration all relevant matters and exclude from consideration all legally irrelevant matters - if so, the issue of what weight to give to particular matters was for the Secretary of State and not for the Court. Now, when EU or ECHR rights are concerned, proportionality considerations enter into play.

See: B v Secretary Of State For Home Department [2000] EWCA Civ 158 In that case a long resident alien had a deportation order made against him following conviction for serious sexual offences. On appeal, the Court allowed the appeal on proportionality grounds:-

45. The deportation of an EC national can be justified only by the existence of "a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society" - see R v Bouchereau [1978] QB 732, 760. And even if such a threat exists, deportation, because it interferes with the fundamental right of free movement of workers (Article 48, now 39, of the Treaty of Rome) and the right to respect for private life (Article 8 of ECHR), must be proportionate. The requirement for proportionality in this context means that deportation must be both appropriate and necessary for the attainment of the public policy objective sought - here the containment of the threat - and also must not impose an excessive burden on the individual, the deportee.

46. Given, as I would accept, that the IAT found and were entitled to find the existence of a relevant threat to the requirements of public policy arising both from the intrinsic seriousness of the appellant's offending (see Marchon v IAT [1993] ImmAR 384) and from a propensity to reoffend, the remaining and determinative issue for them was that of proportionality.

47. It was common ground before us that proportionality involves a question of law and that, on a statutory appeal of this nature, the court is required to form its own view on whether the test is satisfied, although, of course, in doing so it will give such deference to the IAT's decision as appropriately recognises their advantage in having heard the evidence. This task is, of course, both different from and more onerous than that undertaken by the court when applying the conventional Wednesbury approach. It would not be proper for us to say that we disagree with the IAT's conclusion on proportionality but that, since there is clearly room for two views and their view cannot be stigmatised as irrational, we cannot interfere. Rather, if our view differs from the IAT's, then we are bound to say so and to allow the appeal, substituting our decision for theirs.

48. In common with my Lords, that indeed is the position I have arrived at. Far and away the most important single feature of this part of the case is that this appellant has lived in England for the past 36 years, having arrived here at the age of 7 and having visited Sicily twice only in the past 20 years, once in 1982-1983, and secondly and lastly in 1991-1992. Although he is an Italian and not a British citizen, he has infinitely closer associations with this country than ever he has had with Italy. All this serves to distinguish his situation completely from that of the unsuccessful appellants in the various other cases we were shown. To justify this appellant's deportation as proportionate would in my judgment require significantly more in the way of the intrinsic gravity of offending and/or the risk of reoffending than on any view of the facts has been established against him.

49. I too would allow this appeal.

So, the concept of "proportionality" is not in the last bit novel or inappropriate and Judges are called upon to apply the test as a matter of ordinary routine.

It is not "aspirational" as LSR Bart mischaracterises it in his ignorance, it is simply a balancing of competing considerations which is something those who hold the scales of justice in their care are required to do every day. Nor is it arbitrary - the doctrine of precedent and the process of reasoning by analogy apply.

The real problem LSR Bart has is that it empowers the Judge to review the competing considerations before the executive decision maker and say:

"you got the balance wrong - while detaining people who pose a security risk may be lawful - detaining them indefinitely without due process is not, and nor is subjecting them to torture or inhuman and degrading treatment."

Professor Amos Guiora is not exactly a bleeding heart liberal. He served for 19 years in the Israel Defense Forces Judge Advocate General’s Corps (Lt. Col. Ret.). He held a number of senior command positions, including Commander of the IDF School of Military Law, Judge Advocate for the Navy and Home Front Command, and the Legal Advisor to the Gaza Strip. He recently published proposals for a US National Security Court advocating the idea that a Judge should be allowed to review evidence which the neither the accused nor his lawyers should be permitted to see - an idea which, as a liberal, I find to be anathema in the context of criminal due process or executive detention.

Professor Guiora has just published a post on the Jurist web site Legal Aspects of 'Operation Cast Lead' in Gaza which I suggest LSR Bart might profit from reading.

Inter alia, he opines:-

"From a legal perspective, however, there are three critical differences between Cast Lead and previous IDF operations, each of which may pose significant challenges to existing interpretations of international law:

- declaring war against a non-state actor;
- re-articulating proportionality; and
- redefining what is a legitimate target in the context of collateral damage.

Before analyzing these three issues, one should recall that Israel previously has referred to its operational counterterrorism measures in the West Bank and Gaza Strip as “armed conflict short of war”. While surely a clumsy phrase, it signaled Israel’s attempt to articulate a “hybrid”— something that is neither war nor a police action. Declaring war on Hamas is not “armed conflict short of war”; it is an additional step – perhaps more than that - in the definitional spectrum. It suggests that war can be declared against a non-state entity. While President Bush declared war on “terrorism” after 9/11, a declaration of war specific to a particular organization represents a fundamental change."

On other threads, I have expressed the view that "war" can only be declared against a sovereign state. That, of course, means that the Toxic Texan's "war on terror" is a legal nonsense - mere political hyperbole - like "the war on drugs". At best, one is talking about "police action" or "punitive expedition".

Professor Guiora goes on to suggest the the present action appears to be based on redefinitions of proportionality and collateral damage. While I would probably not agree with his precise articulation, the post shows that "proportionality" is a well-recognised concept in international law.

The fact that applying a well understood concept to a novel situation may be difficult, does not mean that the legal reasoning process is "arbitrary" as LSR Bart suggests. What is arbitrary is:

"God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did." - Bush to Mahmood Abbas, quoted in the Israeli newspaper Haaretz.

What proportionality forbids is the indiscriminate attack contemplated in Article 51(5) of the First Additional Protocol: which is one which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
 

Mourad:

1) The proportionality principle of determining the legality of a war or an act of war is indeed aspirational because there is no real and and forceable legal standard for applying it and thus it is only given lip service. Each nation makes its own decision whether to go to war and enforces its own rules of engagement.

2) The comparison of the proportionality principle in war to that used by EU courts in deportation proceedings is not particularly apt to the United States because foreign policy decisions like wartime rules of engagement are political matters for the elected branches. I presume this is the case for Israel as well, but I am unsure.

3) The application of precedent does not make the imposition of a proportionality doctrine to acts of war any less arbitrary. The previous military commanders who have applied the proportionality doctrine simply made it up as they went along and applied widely varying rules of engagement to different wars. Applying prior arbitrary decisions as precedent is still arbitrary.

The suggestion being made here that courts with no experience in war should decide what constitutes legal rules of engagement under the proportionality principle changes an educated arbitrary decision by a military commander to a clueless arbitrary decision by an untrained and uninformed judge.

What proportionality forbids is the indiscriminate attack contemplated in Article 51(5) of the First Additional Protocol: which is one which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

4) Exchanging one subjective term ("excessive") for another subjective term ("proportional") does not solve your problem that applying principles incapable of objective definition requires the decision maker to act arbitrarily.
 

The suggestion being made here that courts with no experience in war should decide what constitutes legal rules of engagement

Baghdad, judges make rulings on subjects in which they have no experience all the time.
 

What constitutes a just cause for overthrowing a government?
 

I guess the "loathsome spotted reptile" thing is yet another example of the high levels of civility (much higher than other blogs!) on this site.
 

Bart: as David Luban has pointed out, both Israel and the USA have accepted the wording you object to as good international law. That is, as I understand it, they agree that deliberately inflicting "excessive" damage in relation to the "concrete and direct" military advantage thereby gained is a war crime for which soldiers, airmen and commanders may in principle be prosecuted. Do you think it is improper to hold states to standards they have accepted?
 

James:

I am not arguing that the principle of proportionality is not written in treaty law. Rather, I am arguing that, like much treaty law, the principle of proportionality is aspirational and does not offer an objective measure to guide behavior.

No one here has offered an objective definition of what constitutes a proportional use of force. This is not surprising given that very intelligent people have come up with widely divergent theories as to what this completely subjective concept requires.

For a good example of the range of opinions being offered to the unfortunate policy maker, go read pages 23-47 of the recently released OLC memorandum " AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ as OLC attempted to advise the President as to what the principle of proportionality requires and simply chose the theory that best supported their client.
 

It's pretty clear that being fired upon by rockets constitutes a just cause for war according to international law. However, whether or not Israel is abiding by human rights law is a different issue, since that concerns the consequent conduct of that war. If Israel is using phosphorus bombs against people, that's a breach of the law. If Israel is bombing buildings that have been branded as Red Cross buildings, that's a breach of the law.


There is already a large body of law and custom in place that goes back centuries; there is no need to discuss the merits of those laws at this juncture. Americans in general, including American lawyers, are painfully ignorant with respect to international law. When you run educational institutions for profit, international law gets swept aside in favor of the legal side of Voodoo economics.
 

"Bart" DeObtuse:

I have been frequently on record here and elsewhere criticizing the application of the torture definition as criminal law because it can only be applied arbitrarily.

Typo:

"I have been frequently on record here and elsewhere criticizing the application of the murder or rape definitions as criminal law because they can only be applied arbitrarily."

Fixed it for you. That's what you're saying. Both these crimes are "void for vagueness" as both are defined with even less precision in teh criminal law.

Cheers,
 

"The suggestion being made here that courts with no experience in war should decide what constitutes legal rules of engagement under the proportionality principle changes an educated arbitrary decision by a military commander to a clueless arbitrary decision by an untrained and uninformed judge.

[my emphasis]

What "Bart" suggests is that untrained military should decide legal matters, and not trained (and appointed) judges. And he leaves aside the fact that a fair number of judges are also military (or ex-military) as well.

Cheers,
 

When LSR Bart has finished extolling the virtues of the Jay Bybee et al memoranda, he and others may care to pop over to the Opinio Juris web site and read:-

The OLC Memoranda on Iraq: Revisiting the Case for War and in particular the observations on paragraphs 36,43-44:-

"This anticipatory self-defense redefined of course bears no semblance to the Caroline model. It is not interceptive, but entirely pre-emptive. Indeed, it is not self-defense at all, but merely the use of force when a state considers it to be necessary. Particularly striking is the inverse relationship that the OLC draws between the probability or imminence of an attack and the magnitude of potential harm – the greater the harm, the lesser the imminence needed.

Just as an illustration of how this is nothing like self-defense, there is a very small, but non-zero risk that the (now apparently broken) Large Hadron Collider in Switzerland can create a black hole capable of destroying the Earth. Poof, and all existence is gone for good. In the OLC’s argument, this immense potential harm would offset the extremely small likelihood of the harm occurring, and would give the US the right to, say, bomb Switzerland in self-defense. (cf. Iraq Opinion, at 47). When it comes to determining this overwhelming necessity, the OLC considers that this determination is entirely in the hands of the US President (at 45-48).

This brings me to the way that the OLC uses authority: the most important authority for the OLC seems to be the OLC itself. It thus relies on its own previous opinions regarding uses of force by the US as controversial as the Cuban Missile Crisis or Panama as proof that these uses of force were, in fact, lawful (at 36 ff). When it speaks of state practice, it is actually referring to United States practice, not to how this practice was seen and assessed by other states, as evidence of opinio juris necessary for the establishment of a customary rule. The possibility (let alone the probability) that this US practice was generally seen as unlawful is not acknowledged.

Contrary authority and arguments are rarely, if ever, discussed. They are often casually dismissed, while the OLC’s analysis is portrayed as ironclad and beyond any doubt. For example, the 1998 US and UK airstrikes against Iraq, where the revival argument was first used, were extremely controversial, yet all we get from the OLC on the matter is a dismissive footnote (at 25, n. 30).

Once you read this opinion, it becomes apparent that the OLC did not really answer the question that it was officially asked to, namely “whether the President has the authority, under both domestic and international law, to use military force against Iraq” (at 1, emphasis added). Instead of providing policy makers with legal advice that would outline the whole gamut of possible arguments, and assess the reasonableness and prospect of success of each and every one, the OLC presents arguments which are on any objective assessment extremely controversial (on the fringe, even) as pretty much unimpeachable, and at no point does it explain their weaknesses. What the OLC does, in other words, is not advice, but apology.

In other words, Bybee was in breach of his duty as counsel.

As the writer suggests, contrast the Bybee Memorandum with Lord Goldsmith QC's Advice.

As it happens, there are many at the English bar who are very critical of the Goldsmith advice in that he downplayed some of the difficulties, in particular by not emphasising sufficiently that the majority expert opinion was that a 2nd UNSC resolution was required to make the invasion lawful.

But at least his opinion did give advice - which necessarily comports a duty to point out the alternative views and the uncertainties.
 

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Mourad:

The purpose of my link to the Bybee memorandum was hardly to "extol the virtues" of Mr. Bybee's favored view of "proportionality," but instead to note the wide variety of views on the subject, all of which are utterly subjective and therefore useless as a guide to the military. Your citation to further divergent views from the left only further proves my point that the principle of proportionality is incapable of objective definition.
 

The purpose of my link to the Bybee memorandum was hardly to "extol the virtues" of Mr. Bybee's favored view of "proportionality," but instead to note the wide variety of views on the subject, all of which are utterly subjective and therefore useless as a guide to the military. Your citation to further divergent views from the left only further proves my point that the principle of proportionality is incapable of objective definition.

Oh, I get it. Just drag out some hired consigliere to produce hack self-serving memos, claim that proves there's a controversy and no agreement, say it's a "he said, she said" thing and who can tell, and therefore "I win" (the claim that something's to subjective to apply is the same in result as saying that the action is permitted). Kind of like the underpants gnomes, there's something missing in the middle here.

"Bart"''s little 'theory' that law is too subjective to function as a restraint on even the most incivil and reprehensible behaviour is the height of cynicism. Perhaps that's why his living is made defendign drunks.

Cheers,
 

the principle of proportionality is incapable of objective definition.

If only there were a school of thought that could somehow deal with the impossibility of empirical truth and the quagmire of subjectivity!

Even some way of reaching an authoritative decision when consensus is impossible would be helpful here; woe are we to have no such tools at hand!
 

Sean calls some here on their manners. Well, we can appeal to the rules of some bodies where each person, including those one knows are deep down "spotted reptiles" or whatever, is treated with a patina of respect. Even unearned.

Did someone answer Howard Gilbert's point as to "police?" I reckon it might have been, since it is not a new claim. Along with justification of bombing universities and the like.

Sadly, Bybee might have failed at his job (well, his alleged job), but he now is a life tenured federal judge. We are left with the small favor that they apparently are not paid enough. Some suggest he might be open to impeachment, but such "looking back" is currently deemed too "disagreeable" etc.

I reckon his appt can underline the opinion low pay keeps qualified sorts out. But, he was picked probably for ideological reasons, which would remain even if the pay scale was better.
 

PMS:

The solution is to remove legal sanctions for all aspirational goals which cannot be defined and get back to the basics.

1) Do not target civilians. This can be objectively determined and the violation of this rule is a war crime.

2) Do not set up positions near civilians. If a position is tactically necessary, evacuate the civilians from around the position. Using civilians as human shields is never a legitimate tactic. This can be objectively determined and the violation of this rule is a war crime by the military using civilians as human shields and not the opposing military targeting the war criminals.

3) Reduction of civilian casualties when targeting enemy positions is an aspirational goal and not a legal requirement. Rules of engagement are the sole prerogative of the military commander. This should not be a de facto reality, but should be written into the law, because our enemies and their sympathizers seek to use our laws to harass and defeat our military as a form of asymmetrical warfare known as lawfare.

BTW, The aspirational goal of proportional use of force does not mean that the loss of life and property should be roughly equal on both sides. The objective of war is not to be fair, but rather to kill the enemy and destroy his property with the least possible friendly casualties until the enemy is all dead or the survivors have surrendered.
 

That is quite the "solution" you've come up with, Bart. The "enemy" has "clearly" defined rules that they must follow, and whatever side you support has "aspirational goals" and "rules of engagement", but no legal requirements.

You don't actually expect to be taken seriously, do you?
 

2) Do not set up positions near civilians. If a position is tactically necessary, evacuate the civilians from around the position. Using civilians as human shields is never a legitimate tactic. This can be objectively determined and the violation of this rule is a war crime by the military using civilians as human shields and not the opposing military targeting the war criminals.

3) Reduction of civilian casualties when targeting enemy positions is an aspirational goal and not a legal requirement.

Here is the real problem with the conventional rules of war. These rules assume that the legitimate way to wage war is as a dual of firepower. They are written by countries with the advantage in firepower and act to the advantage of the country with greater firepower.

You give a fine example here. Collateral damage from firepower is tolerated. The rules seek to minimize such damage by keeping military and civilian as separate as possible.

These rules are reasonable enough when firepower is roughly equal. They are not altogether realistic when there is a vast imbalance. Asking Hamas to place its military targets far from inhabited areas and clearly mark them as military when it has no airforce or anti aircraft guns to defend them is asking it, in effect, to commit suicide. Oddly enough, it does not seem willing to take you up on that. More realistically, the accepted rules of warfare way that if you do not have enough firepower to challenge an opponent, you may not fight. Once again, I don't think this is very realistic.

Given that weaker powers insist on taking on stronger ones even if the conventional rules say they should not, we need an additional set of rules to take this fact into account. When an unconventional force like Hamas or Hezbollah is strongly enough based among the civilian population that one cannot uproot it without uprooting the population as a whole, it is time to acknowledge that that in itself grants the force a certain legitimacy. (It does not legitimize its actions such as firing rockets that target civilians).

How to deal with such a force is, I admit, a thorny problem. It is one much addressed in the whole counterinsurgency literature. But what I do not accept is that if an unconventional force is closely enough intertwined with the civilian population that makes the whole population in the area fair game to the side with greater firepower.
 

(It does not legitimize its actions such as firing rockets that target civilians).

Those rockets aren't accurate enough to target much of anything. Hamas can claim that those rockets are targeting the Israeli military with as much legitimacy as Bart can claim that waterboarding is not torture.
 

2) Do not set up positions near civilians. If a position is tactically necessary, evacuate the civilians from around the position. Using civilians as human shields is never a legitimate tactic. This can be objectively determined and the violation of this rule is a war crime by the military using civilians as human shields and not the opposing military targeting the war criminals.

This for the Gaza Strip, a piece of land some 35 km long, and as narrow as 4 km in some places, and a population of some 1.4 million.

Not to mention, there's hardly a regular army there, with fortified positions, etc.. And the IDF is going after Hamas leaders, alleged Hamas, or whatever. This is not a war against a distinct military target, it's a war against the Palestinian leadership. Hitting them is like hitting DC (as opposed to, say, Andrews AFB).

That's not to say that Hamas (or others) haven't placed munitions and weapons in civilian buildings, or even mosques. But they don't have any other places to put them ... and if they did, that woujld be the first think that IDF forces would blow to itty-bitty pieces....

"Bart" alleged that it is a "war crime" for Hamas to not evacuate civilians from the vicinity of Hamas (or alleged or suspected Hamas). Aside from the near-impossibility of such, it is simply not true that the rules of war require civilian evacuation from (alleged) combatants. At best, it prohibits purposefully going into civilian areas ... but that describes pretty much all of the Gaza strip ... and also many of the targets of the IDF.

Cheers,
 

EL:

Your defense of Hamas essentially boils down to "They need to commit war crimes and butcher civilians to have a chance of winning at war and it is thus unreasonable to expect them to follow the same rules of war as we do." However, you conclude by holding Israel responsible for the resulting civilian deaths caused by Hamas abusing civilians as human shields.

An Israeli soldier could be forgiven for borrowing the immortal line from Life of Brian, "What kind of chance does that give me?"

Using civilians as human shields and thus cannon fodder is not necessary to wage a successful guerilla war against the world's most powerful army as we demonstrated in our own Revolution. Indeed, using civilians as human shields has not provided Hamas with a military victory, only the slaughter of their own fellow citizens.

It is long past time to stop making excuses for what is nothing less than barbarism.
 

It is long past time to stop making excuses for what is nothing less than barbarism.

# posted by Bart DePalma : 12:04 AM

Holy sbit. You must be the least self-aware person on the planet.
 

Arne:

What I described is standard US military practice.

In crowded Iraqi cities, we either built our own bases or took over civilian buildings and ensured the Iraqi civilians were removed from the vicinity.

We have engaged in urban warfare for centuries and never had the need to use civilians as human shields.

You would be the first one to condemn our soldiers and marines if they did so. So why are you making excuses for the Hamas terrorist war criminals?
 

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In crowded Iraqi cities, we either built our own bases or took over civilian buildings and ensured the Iraqi civilians were removed from the vicinity.

Are you really trying to compare our military to Hamas? I mean, you're a moron, but even you can't be that fucking stupid.
 

Using civilians as human shields and thus cannon fodder is not necessary to wage a successful guerilla war against the world's most powerful army as we demonstrated in our own Revolution.

# posted by Bart DePalma : 12:04 AM


Even better than our revolution, they could follow Vietnam's example. They could fight Israel from the jungles of Gaza.

Seriously, you are a fucking moron. How do you manage to avoid starvation?
 

["Bart" DeClueless]: Indeed, using civilians as human shields has not provided Hamas with a military victory,...

[Bartbuster, concerning another whopper]: Holy sbit. You must be the least self-aware person on the planet.

"Bart", what ever gave you the idea that Hamas was trying for "military victory" (particularly against an "enemy" that has 50-100 nukes)? Are you just too stoopid to "think outtside the box" of your own (rather simplistic) military mindset?

"Bartbuster": This comment of "Bart"'s ranks right up there....

Cheers,
 

"Bart" DeClueless:

What I described is standard US military practice.

In crowded Iraqi cities, we either built our own bases or took over civilian buildings and ensured the Iraqi civilians were removed from the vicinity.

Yeah. We're the friggin' occupiers. They're the freakin' (potential) insurgents and truck-bombers. Man, you're stoopid, "Bart". We kicked almost everybody out if the Green Zone ... not for their "protection", but for ours!!! In fact, we really didn't give a sh*te if they blew themselves up (or killed people and dumped them in the Euphrates) ... as they say, "freeedom can be a little messy".

[... ]
You would be the first one to condemn our soldiers and marines if they did so. So why are you making excuses for the Hamas terrorist war criminals?

I'm not. I'm describing reality. You ought to pay attention.

Cheers,
 

All right, you have made quite clear that you regard it as the duty of a weaker power to commit suicide by standing out in the open and painting a target on itself when it lacks the ability to defend itself. You also regard any civilian in the vicinity as fair game.

I suppose my response to this is that the whole point of counter insurgency theory is that conventional firepower war in such a situation is problematic, that the brutality involved in fighting guerrillas with firepower is not solely the fault of the guerrilla, but of the side using the firepower as well. And to find an altnernate paradigm to firepower.
 

PMS:

The solution is to remove legal sanctions for all aspirational goals which cannot be defined and get back to the basics.


I agree completely!

What concerns me, however, is that the concept of "the basics" is extremely subjective: no one can say definitively what "the basics" entail, and if one did, then it would just be one person's subjective opinion of what "the basics" must be. Their opinion would be no better than anyone else's and we find ourselves once again stuck in the same morass you described vis-a-vis "the principle of proportionality" and (in other threads) the definition of "severe pain." Must we remove legal sanctions for all of these things?

Again: how do we escape this terrible dilemma? How can we know right from wrong if subjectivity rules us all? Woe!
 

EL:

Hamas has no duty under the laws of war to identify their positions to Israel. Hamas simply cannot use civilians as human shields around the positions they occupy.

Provided you have solid operational security, it is pretty easy to hide the couple hundred Hamas military positions among tens of thousands of buildings and orchards in Gaza. Hamas' problem is that Israeli intelligence has sources throughout Gaza that are disclosing the locations of Hamas leaders, units and supply depots.

Once again, stop making excuses for Hamas war crimes.
 

Provided you have solid operational security, it is pretty easy to hide the couple hundred Hamas military positions among tens of thousands of buildings and orchards in Gaza.

That is exactly what they have done. Why do you keep calling it a war crime?
 

Israel's Channel 2 has broadcast footage taken from what appears to be a cell phone of Hamas terrorists dragging children over to join groups of civilian human shields around terrorist gunman.

I am waiting for some Hamas apologist to claim that these terrorists with AK 47s were really civilian truant officers bringing the children back to school.
 

I am waiting for some Hamas apologist to claim that these terrorists with AK 47s were really civilian truant officers bringing the children back to school.

# posted by Bart DePalma : 2:57 PM


How can you tell from that video that the Hamas freedom fighters aren't bravely carrying those poor young victims of Israeli terror to safety? It looks pretty subjective to me.
 

As if on cue...
 

Did you actually watch the video? There is no possible way you can tell what is really going on.

But, let's assume it is video of Hamas terrorists dragging poor helpless children into Israeli fire. Why does that matter to Israel (or you)? They're probably just going to have to kill those kids in a few years anyways.
 

"It's pretty clear that being fired upon by rockets constitutes a just cause for war according to international law."

Oh sure, just like taking over someone else's country by force, practicing ethnic cleansing, racial apartheid, or good old-fashioned murder.

What's going on in Gaza is RAPE, not warfare.

As for Bart's lying neo-fascist drivel, let me observe that nuking Gaza out of existence would clearly be disproportionate to any valid military objective -- just like the degenerate crime-spree going on right now.
 

Bart, this is espcially for you, courtesy of Uri Avnery:

'Nearly seventy years ago, in the course of World War II, a heinous crime was committed in the city of Leningrad. For more than a thousand days, a gang of extremists called “the Red Army” held the millions of the town’s inhabitants hostage and provoked retaliation from the German Wehrmacht from inside the population centers. The Germans had no alternative but to bomb and shell the population and to impose a total blockade, which caused the death of hundreds of thousands.

This is the description that would now appear in the history books – if the Germans had won the war.

Absurd? No more than the daily descriptions in our media, which are being repeated ad nauseam: the Hamas terrorists use the inhabitants of Gaza as “hostages” and exploit the women and children as “human shields”, they leave us no alternative but to carry out massive bombardments, in which, to our deep sorrow, thousands of women, children and unarmed men are killed and injured.

In this war, as in any modern war, propaganda plays a major role. The disparity between the forces, between the Israeli army - with its airplanes, gunships, drones, warships, artillery and tanks - and the few thousand lightly armed Hamas fighters, is one to a thousand, perhaps one to a million. In the political arena the gap between them is even wider. But in the propaganda war, the gap is almost infinite.

Almost all the Western media initially repeated the official Israeli propaganda line. They almost entirely ignored the Palestinian side of the story, not to mention the daily demonstrations of the Israeli peace camp. The rationale of the Israeli government (“The state must defend its citizens against the Qassam rockets”) has been accepted as the whole truth. The view from the other side, that the Qassams are a retaliation for the siege that starves the one and a half million inhabitants of the Gaza Strip, was not mentioned at all.

Only when the horrible scenes from Gaza started to appear on Western TV screens, did world public opinion gradually begin to change.

True, Western and Israeli TV channels showed only a tiny fraction of the dreadful events that appear 24 hours every day on Aljazeera’s Arabic channel, but one picture of a dead baby in the arms of its terrified father is more powerful than a thousand elegantly constructed sentences from the Israeli army spokesman. And that is what is decisive, in the end.

War – every war – is the realm of lies. Whether called propaganda or psychological warfare, everybody accepts that it is right to lie for one’s country. Anyone who speaks the truth runs the risk of being branded a traitor.

The trouble is that propaganda is most convincing for the propagandist himself. And after you convince yourself that a lie is the truth and falsification reality, you can no longer make rational decisions.

An example of this process surrounds the most shocking atrocity of this war so far: the shelling of the UN Fakhura school in Jabaliya refugee camp.

Immediately after the incident became known throughout the world, the army “revealed” that Hamas fighters had been firing mortars from near the school entrance. As proof they released an aerial photo which indeed showed the school and the mortar. But within a short time the official army liar had to admit that the photo was more than a year old. In brief: a falsification.

Later the official liar claimed that “our soldiers were shot at from inside the school”. Barely a day passed before the army had to admit to UN personnel that that was a lie, too. Nobody had shot from inside the school, no Hamas fighters were inside the school, which was full of terrified refugees.

But the admission made hardly any difference anymore. By that time, the Israeli public was completely convinced that “they shot from inside the school”, and TV announcers stated this as a simple fact.

So it went with the other atrocities. Every baby metamorphosed, in the act of dying, into a Hamas terrorist. Every bombed mosque instantly became a Hamas base, every apartment building an arms cache, every school a terror command post, every civilian government building a “symbol of Hamas rule”. Thus the Israeli army retained its purity as the “most moral army in the world”.

The truth is that the atrocities are a direct result of the war plan. This reflects the personality of Ehud Barak – a man whose way of thinking and actions are clear evidence of what is called “moral insanity”, a sociopathic disorder.

The real aim (apart from gaining seats in the coming elections) is to terminate the rule of Hamas in the Gaza Strip. In the imagination of the planners, Hamas is an invader which has gained control of a foreign country. The reality is, of course, entirely different.

The Hamas movement won the majority of the votes in the eminently democratic elections that took place in the West Bank, East Jerusalem and the Gaza Strip. It won because the Palestinians had come to the conclusion that Fatah’s peaceful approach had gained precisely nothing from Israel - neither a freeze of the settlements, nor release of the prisoners, nor any significant steps toward ending the occupation and creating the Palestinian state. Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier, like the Irgun and the Stern Group in the past – but also as a political and religious body that provides social, educational and medical services.

From the point of view of the population, the Hamas fighters are not a foreign body, but the sons of every family in the Strip and the other Palestinian regions. They do not “hide behind the population”, the population views them as their only defenders.

Therefore, the whole operation is based on erroneous assumptions. Turning life into living hell does not cause the population to rise up against Hamas, but on the contrary, it unites behind Hamas and reinforces its determination not to surrender. The population of Leningrad did not rise up against Stalin, any more than the Londoners rose up against Churchill.

He who gives the order for such a war with such methods in a densely populated area knows that it will cause dreadful slaughter of civilians. Apparently that did not touch him. Or he believed that “they will change their ways” and “it will sear their consciousness”, so that in future they will not dare to resist Israel.

A top priority for the planners was the need to minimize casualties among the soldiers, knowing that the mood of a large part of the pro-war public would change if reports of such casualties came in. That is what happened in Lebanon Wars I and II.

This consideration played an especially important role because the entire war is a part of the election campaign. Ehud Barak, who gained in the polls in the first days of the war, knew that his ratings would collapse if pictures of dead soldiers filled the TV screens.

Therefore, a new doctrine was applied: to avoid losses among our soldiers by the total destruction of everything in their path. The planners were not only ready to kill 80 Palestinians to save one Israeli soldier, as has happened, but also 800. The avoidance of casualties on our side is the overriding commandment, which is causing record numbers of civilian casualties on the other side.

That means the conscious choice of an especially cruel kind of warfare – and that has been its Achilles heel.

A person without imagination, like Barak (his election slogan: “Not a Nice Guy, but a Leader”) cannot imagine how decent people around the world react to actions like the killing of whole extended families, the destruction of houses over the heads of their inhabitants, the rows of boys and girls in white shrouds ready for burial, the reports about people bleeding to death over days because ambulances are not allowed to reach them, the killing of doctors and medics on their way to save lives, the killing of UN drivers bringing in food. The pictures of the hospitals, with the dead, the dying and the injured lying together on the floor for lack of space, have shocked the world. No argument has any force next to an image of a wounded little girl lying on the floor, twisting with pain and crying out: “Mama! Mama!”

The planners thought that they could stop the world from seeing these images by forcibly preventing press coverage. The Israeli journalists, to their shame, agreed to be satisfied with the reports and photos provided by the Army Spokesman, as if they were authentic news, while they themselves remained miles away from the events. Foreign journalists were not allowed in either, until they protested and were taken for quick tours in selected and supervised groups. But in a modern war, such a sterile manufactured view cannot completely exclude all others – the cameras are inside the strip, in the middle of the hell, and cannot be controlled. Aljazeera broadcasts the pictures around the clock and reaches every home.

The battle for the TV screen is one of the decisive battles of the war.

Hundreds of millions of Arabs from Mauritania to Iraq, more than a billion Muslims from Nigeria to Indonesia see the pictures and are horrified. This has a strong impact on the war. Many of the viewers see the rulers of Egypt, Jordan and the Palestinian Authority as collaborators with Israel in carrying out these atrocities against their Palestinian brothers.

The security services of the Arab regimes are registering a dangerous ferment among the peoples. Hosny Mubarak, the most exposed Arab leader because of his closing of the Rafah crossing in the face of terrified refugees, started to pressure the decision-makers in Washington, who until that time had blocked all calls for a cease-fire. These began to understand the menace to vital American interests in the Arab world and suddenly changed their attitude – causing consternation among the complacent Israeli diplomats.

People with moral insanity cannot really understand the motives of normal people and must guess their reactions. “How many divisions has the Pope?” Stalin sneered. “How many divisions have people of conscience?” Ehud Barak may well be asking.

As it turns out, they do have some. Not numerous. Not very quick to react. Not very strong and organized. But at a certain moment, when the atrocities overflow and masses of protesters come together, that can decide a war.

The failure to grasp the nature of Hamas has caused a failure to grasp the predictable results. Not only is Israel unable to win the war, Hamas cannot lose it.

Even if the Israeli army were to succeed in killing every Hamas fighter to the last man, even then Hamas would win. The Hamas fighters would be seen as the paragons of the Arab nation, the heroes of the Palestinian people, models for emulation by every youngster in the Arab world. The West Bank would fall into the hands of Hamas like a ripe fruit, Fatah would drown in a sea of contempt, the Arab regimes would be threatened with collapse.

If the war ends with Hamas still standing, bloodied but unvanquished, in face of the mighty Israeli military machine, it will look like a fantastic victory, a victory of mind over matter.

What will be seared into the consciousness of the world will be the image of Israel as a blood-stained monster, ready at any moment to commit war crimes and not prepared to abide by any moral restraints. This will have severe consequences for our long-term future, our standing in the world, our chance of achieving peace and quiet.

In the end, this war is a crime against ourselves too, a crime against the State of Israel.'

(Uri Avnery, an Israeli writer and peace activist, founded the Gush Shalom movement. He had served three terms as an MP at the Knesset. This article was first published by Gush Shalom. Available at Middle East Online: http://www.middle-east-online.com/english/?id=29710
 

Tuesday, 13 Jan 09 - BBGR-GWB-7

Just 7 days before the world can say "Bye-Bye and Good Riddance to George Walker Bush" and the 18th day of the agony of the people of Gaza.

The Israeli assault on the Gaza strip has, according to Al Jazeera thus far killed 970 Palestinians and wounded 4,300, 40% being women and children. Overnight there were 60 air strikes and the IDF presence was being augmented by reservists.


If there was doubt before, there can be no doubt today: the Israeli leadership is not merely seeking to stop the rockets, it is also trying to destroy Hamas and it is trying hard to achieve a fait accompli in defiance of the will of the UN Security Council secure in the knowledge that the Bush Administration will allow the carnage to continue for 7 more days.

Meanwhile in the UK Parliament there was a short debate on the situation in Gaza - not as one-sided as the US Congressional Resolutions however. This report from the Independent's Home Affairs correspondent Muslim ministers warn of Gaza backlash sums up the proceedings:-

"The two most senior Muslim figures in the Government have warned about the impact of the Gaza crisis on Britain's Asian communities amid angry demands from some Labour MPs for Gordon Brown to ratchet up the diplomatic pressure on Israel to halt their military campaign. Sadiq Khan, the Communities minister, and Shahid Malik, the Justice minister, took the unusual step of speaking out about concerns that British Muslims have about the crisis. The Commons also heard demands from Labour MPs for Britain to impose an arms embargo on Israel.

Mr Malik said many British Muslims were not aware of the Government's calls for a ceasefire in Gaza and warned that "the sense of grievance and injustice is both profoundly acute and obviously profoundly unhealthy". In a letter to his Dewsbury constituents he said he had been in "constant contact" with Mr Brown and David Miliband, the Foreign Secretary. Both ministers made it clear they strongly supported Mr Brown's stance on Gaza. But Mr Malik said: "It's crucial we redouble our efforts to communicate with the public about UK Government actions if we are to dent the entrenched cynicism that exists, especially among British Muslims." In an email to his Tooting constituents, Mr Khan said the Foreign Office minister Bill Rammell had "assured me that the Foreign Office are fully aware of the strength of feeling".

However, Labour MPs called for the Government to take tough action against Israel. Peter Kilfoyle, the former defence minister, said: "Will he undertake to ensure that no arms go to Israel at the moment given that it is guilty, in many people's eyes, of state-sponsored terrorism." Marsha Singh, the Labour MP for Bradford West, added: "Is it not time to expel the ambassador of Israel, is it not time we brought our ambassador back from Israel. Is it not time we called for international sanctions against Israel?"

Sir Gerald Kaufman, the veteran Labour former minister, accused Israeli leaders of war crimes. He told MPs: "Is it not an incontrovertible fact that Olmert, Livni and Barak are mass murderers or war criminals and they bring shame on the Jewish people."

The two Muslim Ministers, Sadiq Khan and Shahid Malik, are very much wired into the UK Asian Muslim community, particularly in the north of England where they have their constituencies and they are very concerned about the impact the TV footage from Gaza (which by and large neither Americans nor Israelis are seeing) is having on the young people who are vulnerable to terrorist recruitment. I see the same effect in the much more diverse Muslim communities in London.

The exact words of Sir Gerald Kaufman are on Hansard:-

"In congratulating my right hon. Friend on steering resolution 1860 through the United Nations Security Council, may I ask him what the international reaction would be if Hamas had slaughtered nearly 900 Israelis and subjected nearly 1.5 million Israelis to degradation and deprivation? Is it not an incontrovertible fact that Olmert, Livni and Barak are mass-murderers and war criminals— [ Interruption. ] Yes. And they bring shame on the Jewish people whose star of David they use as a flag in Gaza, but whose ethos and morals go completely against what this Israeli Government are doing."

as is this careful response from the minister:-

Foreign Secretary: "I think that the history and origins of the state of Israel make this conflict especially acute, especially distressing and especially painful. However, Israel should be held to the same standards as other nation states. The Jewish people have suffered enough for their history and deserve to be held to the same standards as every other nation state. I believe that the obligations that they have need to be fully implemented without fear. They need to be addressed as a matter of urgency. The democracy that Israel rightly treasures, which is rightly seen as a beacon throughout the world, needs to ensure that the actions of its Government fully adhere to the country’s obligations.

Perhaps the careful response was appropriate in these days when any criticism of Israeli government policy is likely to come up against people like Shmuley Boteach writing in all seriousness in the Jerusalem Post No Holds Barred: Why Jews are always viewed as aggressors:-

"It's a curious thing about the Jews. Whenever we get attacked, we get blamed for having provoked the attack and being aggressors rather than victims. This strange phenomenon did not begin with Israel's current war against Hamas. It has an unending series of precedents. It was true in the pogroms that followed the Black Death, when the Jews were accused of poisoning the wells of Europe. It was true of the massacres of 1648-49 in which hundreds of thousands of Jews were slaughtered by Bogdan Chmielnicki's Cossacks....And it was especially true of the Holocaust, when Hitler repeatedly portrayed the Jews as parasitic connivers out to embroil all of Europe in war....Why is it so easy to blame the Jews as aggressors even when it is perfectly clear that they are the innocent victims? Unfortunately, the allegation traces itself all the way back to the New Testament's claim of Jewish complicity in the death of Jesus....it set the stage for the tiny State of Israel being portrayed, against all the evidence, as an inhuman aggressor while its adversaries are always weak and innocent victims."

It's an even more curious thing that Israeli apologists for some of the worst excesses of governments of the State of Israel keep trotting out this tired own line. Successive governments of Israel are the wonderful people who gave you the events described in this op-ed a few days ago by veteran journalist Robert Fisk in the Independent: Why do they hate the West so much, we will ask

So once again, Israel has opened the gates of hell to the Palestinians. Forty civilian refugees dead in a United Nations school, three more in another. Not bad for a night's work in Gaza by the army that believes in "purity of arms". But why should we be surprised?

Have we forgotten the 17,500 dead – almost all civilians, most of them children and women – in Israel's 1982 invasion of Lebanon; the 1,700 Palestinian civilian dead in the Sabra-Chatila massacre; the 1996 Qana massacre of 106 Lebanese civilian refugees, more than half of them children, at a UN base; the massacre of the Marwahin refugees who were ordered from their homes by the Israelis in 2006 then slaughtered by an Israeli helicopter crew; the 1,000 dead of that same 2006 bombardment and Lebanese invasion, almost all of them civilians?

What is amazing is that so many Western leaders, so many presidents and prime ministers and, I fear, so many editors and journalists, bought the old lie; that Israelis take such great care to avoid civilian casualties. "Israel makes every possible effort to avoid civilian casualties," yet another Israeli ambassador said only hours before the Gaza massacre. And every president and prime minister who repeated this mendacity as an excuse to avoid a ceasefire has the blood of last night's butchery on their hands. Had George Bush had the courage to demand an immediate ceasefire 48 hours earlier, those 40 civilians, the old and the women and children, would be alive.

What happened was not just shameful. It was a disgrace. Would war crime be too strong a description? For that is what we would call this atrocity if it had been committed by Hamas. So a war crime, I'm afraid, it was.

After covering so many mass murders by the armies of the Middle East – by Syrian troops, by Iraqi troops, by Iranian troops, by Israeli troops – I suppose cynicism should be my reaction. But Israel claims it is fighting our war against "international terror". The Israelis claim they are fighting in Gaza for us, for our Western ideals, for our security, for our safety, by our standards. And so we are also complicit in the savagery now being visited upon Gaza.

I've reported the excuses the Israeli army has served up in the past for these outrages. Since they may well be reheated in the coming hours, here are some of them: that the Palestinians killed their own refugees, that the Palestinians dug up bodies from cemeteries and planted them in the ruins, that ultimately the Palestinians are to blame because they supported an armed faction, or because armed Palestinians deliberately used the innocent refugees as cover....

Twelve years earlier, another Israeli helicopter attacked an ambulance carrying civilians from a neighbouring village – again after they were ordered to leave by Israel – and killed three children and two women. The Israelis claimed that a Hizbollah fighter was in the ambulance. It was untrue. I covered all these atrocities, I investigated them all, talked to the survivors. So did a number of my colleagues. Our fate, of course, was that most slanderous of libels: we were accused of being anti-Semitic.

And I write the following without the slightest doubt: we'll hear all these scandalous fabrications again. We'll have the Hamas-to-blame lie – heaven knows, there is enough to blame them for without adding this crime – and we may well have the bodies-from-the-cemetery lie and we'll almost certainly have the Hamas-was-in-the-UN-school lie and we will very definitely have the anti-Semitism lie. And our leaders will huff and puff and remind the world that Hamas originally broke the ceasefire. It didn't. Israel broke it, first on 4 November when its bombardment killed six Palestinians in Gaza and again on 17 November when another bombardment killed four more Palestinians.

Yes, Israelis deserve security. Twenty Israelis dead in 10 years around Gaza is a grim figure indeed. But 600 Palestinians dead in just over a week, thousands over the years since 1948 – when the Israeli massacre at Deir Yassin helped to kick-start the flight of Palestinians from that part of Palestine that was to become Israel – is on a quite different scale. This recalls not a normal Middle East bloodletting but an atrocity on the level of the Balkan wars of the 1990s. And of course, when an Arab bestirs himself with unrestrained fury and takes out his incendiary, blind anger on the West, we will say it has nothing to do with us. Why do they hate us, we will ask? But let us not say we do not know the answer."

So it was some relief to hear Secretary of State designate Hilary Clinton daring to mention the dreaded word "Palestinian" in proximity to the word "suffering" in an appearance before the Senate Foreign Relations Committee as part of her confirmation process : Clinton Says U.S. Must Not ‘Give Up’ on Mideast Peace :-

"Mrs. Clinton said America must recognize Israel’s right to defend itself from Hamas rockets but cannot ignore the suffering of Palestinian citizens, as well as Israelis. “Real security for Israel, normal and positive relations with its neighbors” as well as genuine security for Palestinians must continue to be America’s ideal, she said."

Shock! Palestinians and Israelis in the same breath - as if they were equals!

"Noting that “many presidents, including my husband,” have spent years trying to achieve peace in the Middle East, Mrs. Clinton said: “We cannot give up on peace. The president-elect and I understand and are deeply sympathetic to Israel’s desire to defend itself under the current conditions and to be free of shelling by Hamas rockets.

“However,” she went on, “we have also been reminded of the tragic humanitarian costs of conflict in the Middle East and paid by the suffering of Palestinian and Israeli civilians. This must only increase our determination to seek a just and lasting peace agreement that brings real security to Israel, normal and positive relations with its neighbors; independence, economic progress and security to the Palestinians in their own state.”

Horror! Palestinians mentioned before Israelis! What can this mean? An even-handed approach by the incoming Administration?

Probably not quite. I'll believe in that when the US Aid budget to Gaza even matches that to Israel on a per capita basis - some hopes of that! But it may represent progress from the Bush Administration's defense of the indefensible - and will not have gone un-noticed in Tel Aviv, Jerusalem and in Arab capitals.

And while that's a good thing too, Mrs Clinton should be prepared to be accused of anti-semitism.
 

Patrick:

1) The Soviets may have been guilty of many war crimes, but using their own citizens in Leningrad as human shields is not one of them.

2) What massive Israeli bombardments in Gaza? The Israelis have a far stricter set of rules of engagement than does the United States and Britain.

3) The UN school was repeatedly used as a Hamas military position in the past. That alone would make it a legitimate military target. Unless you can offer proof that Israel was targeting civilians inside that school, there is no war crime. At most, we have a tragic mistake.

4) Showing dead children on al Jezeera is indeed great propaganda. That is why Hamas terrorists were filmed dragging other Palestinians' children into the line of fire to provide that propaganda.

5) Placing a enemy territory under siege to keep the enemy from rearming is perfectly legal under the laws of war. How much of the food and medicine intended for the civilian population instead ended up in Hamas hands to cause suffering by the civilian population for propaganda purposes? Saddam was a master at that, denying Food for Oil supplies to reach the Shia and allowing them to dies by the thousands every year to put pressure on the West to lift the blockade so he could get back into business.

6) You are welcome to detail supposed Israeli "atrocities" that you believe to constitute war crimes. The fact that civilians dies in the cross fire of a war is nothing new and not a war crime. 5000 French died in one day at St Lo when the US Army broke through the German lines. Historically, Gaza is one of the safer battlefields for civilians.

7) It is not a violation of the law of war to remove a government waging war on your country. Indeed, it is plain common sense. Indeed, Israel could and should go further by offering the captured Hamas for war crime trials either under ICC indictment or in Israel.

8) The nature of Hamas is not hard to understand. We saw the Christian Serb version of this barbarism slaughtering Muslims across Bosnia for years. The difference here is that Israel can defend herself while Bosnia could not.
 

Mourad:

I have no sympathy for the pro Hamas thugs in your country or across the EU. Our readers can see samples of their fascist behavior here, here, here, here, here and here.

Note: Some of the linked video footage is so disturbing that Youtube requires you to be an adult to view it.

There are dozens more videos just like this over at Youtube.

I challenge you to find anything remotely comparable going on in Israel calling for the extermination of Palestinians.
 

The key to understanding Bart's position is to understand that he LOVES war. He has no interest in seeing this war end. He has no interest in seeing Israel and the Palestinians reach a peace agreement. He just really loves war.
 

Our readers can see samples of their fascist behavior

Bart, those are videos of people protesting the war. Since when is protesting against a war considered "fascist behavior"?
 

I think friend Arne Langsetmo may have a point when he mentions LSR Bart's DUI practice in one of the posts above.

I have collected some of dear Bart's "catch phrases" from his several posts on this thread:-

"Proportionality is an aspirational concept which admits no objective definition and thus cannot be applied as law except on a completely arbitrary basis.

Proportionality has devolved into a lawfare propaganda weapon used by those who routinely commit war crimes (and the supporters or apologists for war criminals) against western militaries to use the West's respect for the rule of law against it.

I have been frequently on record here and elsewhere criticizing the application of the torture definition as criminal law because it can only be applied arbitrarily.

The proportionality principle of determining the legality of a war or an act of war is indeed aspirational because there is no real and and forceable [sic] legal standard for applying it and thus it is only given lip service.

Exchanging one subjective term ("excessive") for another subjective term ("proportional") does not solve your problem that applying principles incapable of objective definition requires the decision maker to act arbitrarily.

I am not arguing that the principle of proportionality is not written in treaty law. Rather, I am arguing that, like much treaty law, the principle of proportionality is aspirational and does not offer an objective measure to guide behavior.

Your citation to further divergent views from the left only further proves my point that the principle of proportionality is incapable of objective definition. - The solution is to remove legal sanctions for all aspirational goals which cannot be defined and get back to the basics."

I am sure I could many more examples were I to trawl through all Bart's many, many posts (on which more later). But there is a common "leitmotif" in that they betray a desire to make the processes of the law less complex.

As those of us who actually practise in the Courts are only too well aware, what the courts do (and therefore what we have to do as well) is first of all ascertain what the facts are and then apply legal principle to those facts.

We know that fact finding is complex enough: a client (say a claimant) comes in to consult and orally or in writing explains what the problem is - one's understanding of the facts begins, then one asks to see all the relevant documents and asks questions (one's understanding of the facts improves to say about 25% of what it will eventually be) then documentary discovery of the other side's documents will improve one's understanding of the facts to about the 50% mark, then one gets the witness statements or depositions for both sides and by this time one's understanding of the facts is up to about 80% (or should be). Any requisite expert opinion should take one's understanding of the facts to 85-90%. But there is still the final stage - and that is when the evidence is given in Court and tested. The requisite application of legal principle (substantive and procedural) is also an incremental process which in our procedure does not actually conclude until one puts one's arguments orally to the judge and sees how they are received.

But after more than 30 years of this, I find that on average my predictions of how a case will eventually turn out are no better than 20-25% at the start of the process but they will have got to 85% by the time of the last pre-trial case management conference.

All the time lawyers come across concepts which are easier to recognise than to define eg: on an application to amend a pleading do the proposed amendments demonstrate "a properly arguable case"; on resisting an application for summary judgment, does the client's case have "a reasonable prospect of success"; in a libel case, would the words used be regarded as defamatory by "the man on the Clapham omnibus" or by "ordinary right-thinking people"; did the policemen arresting a suspect use "excessive" force or was it "proportionate"; was the driver driving "without due care and attention" having regard to the traffic conditions or was it the more serious "dangerous driving" - and so on ad infinitum.

Does dear Bart want to argue that there should not be sanctions for "careless" and "dangerous" driving and that the one should attract a severer penalty than the other (i.e optional disqualification for "careless" and mandatory disqualification for "dangerous") with the trier of fact deciding on the evidence and applying common sense, precedent, and the discretion of an ordinary right-thinking person. Or would he prefer the issue of a ticket by the officer to be final and conclusive?

Or does our LSR really want all DUI cases to be reduced to a merely objective test: over 80mg /100 millilitres of blood on an intoximer at the roadside confirmed 20 minutes later by breath, blood or urine sample at the police station and you loose your driving licence for 12 months minimum - with no exceptions, no challenges to the official tests, no mitigation (and the bottom drops out of the DUI defense market)?

Could it be that Bart can get his head round pleas in mitigation and hiring, as he once deliciously put it, "quasi-experts" to throw sand in the eyes of the trier of fact on the reliability of the machines, or the potentiating effects of medication, or whatever, but that he finds the research into precedent and the process of reasoning by analogy too difficult to arrive at a view of what use of force by an arresting officer in given circumstances is "excessive" or "disproportionate", or where proper custodial procedures degenerate into cruel and inhuman treatment and where they degenerate further into torture?

Or is it really, that Bart knows perfectly well how these things are done (even if his lack of practice makes him rusty), but that he is opposed to any legal restraint on the use or misuse of executive power?
 

What LSR Bart may not know is that Avnery was a member of the Irgun but left because he did not approve of its terrorist methods.

He fought in the 54th reconnaissance battalion of the Israeli Commandos during the 1948 war, and actually wrote the battalion's anthem.

Since founding Gush Shalom he has been seriously wounded by one would-be assassin and had the racist (so declared by the Israeli Supreme Court) American born settler Baruch Marzel call for him to be the subject of a "targeted assassination" on Israeli TV.

It is well worth reading this 2002 interview he gave to Ricard Swift in 2002 A conversation with Uri Avnery, senior statesman of Israel’s peace movement in which readers will find much wisdom eg:-

"He was here in the beginning – fought with the Irgun to create the state of Israel back in the 1940s. ‘You can’t tell me about terrorism, I was a terrorist.’

He knows personally all of the major players of Israeli politics (and on the Palestinian side too) and is more than blunt in his opinions about them. The current Foreign Minister, Shimon Peres, he refers to as a ‘completely worthless person’. The former Prime Minister, Benyamin Netanyahu, he dismisses as a crook: ‘I am not afraid of crooks. I am afraid of men like Sharon.’

He has more respect for Yitzhak Rabin and Ariel Sharon, whom he refers to as ‘serious men’. The latter he feels is deeply amoral in the pursuit of his goals and has no interest in making any settlement at all with the Palestinians. On the contrary, Avnery believes that he wants war with them. He sees Sharon as the last leader of a movement for Jewish liberation, the élan of which is dying out.

For Avnery the clash in the Middle East is not between two nation states but between two liberation movements, which accounts for both its intransigence and its brutality. ‘When you are in a war of liberation different sets of values apply than in a conflict between existing states.’ When I asked him if he was not bothered by the suicide bombings, he is again characteristically to the point. ‘No more than any other kind of violence. It is a product of the vast disparity of force between the two sides.’ Surprisingly Avnery is optimistic about the chances for peace: ‘A product of my age and my temperament.’ He sees the Israelis as basically having no choice but to make a deal with the Palestinians, even though he thinks 90 per cent of the population would like a country without any Arab population at all.

Avnery’s eyes dance as he sees me off with a joke about the settlers: ‘It’s like someone parachuting into the middle of a village and yelling “Help, I’m surrounded on all sides, send in the army!”"

Avnery is 85 years old now, but as the article you reference on Mid-East Web (good site) is also available here on Avnery's own site Uri Avnery's News Pages together with much, much more [sometimes the site is a bit slow to load - whether due to demand or "enemy action" I know not].

He is very much a secularist, but I hope he will not object to my saying of him: "May the Almighty keep him safe and may he live to 100. May he see peace between Arabs and Israelis, and between Christian, Jew and Muslim while he is still young in spirit."
 

Mourad,

Hear, Hear!

You're a breath of fresh, invigorating, life-enhancing air.

I very much appreciate all the material you've been posting on this thread and elsewhere.

All good wishes,
Patrick
 

Bart,

Just to make clear, I do not condone Hamas kidnapping civilians and holding them against their will in danger zones. What I do condone is "hid[ing] the couple hundred Hamas military positions among tens of thousands of buildings and orchards in Gaza," which will undoubtly intermingle Hamas with civilians and bring them into danger. Mourad is right; Hamas (like Hezbollah) is a popular movement so intertwined with the population that it cannot be removed without removing the population as well. In the last war, Israel tried uprooting the population of southern Lebanon and driving them north of the Litani. In this war, driving the people of Gaza into Egypt is not an option because Egypt does not want them. What choices does that leave Israel?

You say that current laws of war condone collateral damage from firepower and leave rules of engagement to the military's discretion. As I have said, rules like that assume a rough parity of firepower. If your interpretation is correct, then I still believe that we need new rules of war for asymmetrical warfare, rules that set forth what is permitted -- for both sides.

You condemn the intentional killing of civilians. So far so good. But if Hamas and the civilian population are so tightly intertwined as to make considerable collateral damage inevitable, and if limiting collateral damage is purely optional, what do you consider too much? I am not suggesting Israel would go so far, but what would you consider excessive? Cluster bombs? Mass carpet bombing? Strafing everthing that moves. Just how much unintentional but inevitable collateral damage does it take before you are ready to say enough is too much?
 

Sean perhaps wonders why I refer to Bart De Palma as a "loathsome spotted reptile"..

In case he and others readers do not know the reference, here is a link to the text of the sketch by Rowan Atkinson Entirely a Matter for You first performed at the 1981 "Secret Policeman's Ball" which is a benefit event in aid of Amnesty International.

The sketch is a transparent take-off of the summing up to the jury of the Hon Mr Justice Cantley in the trial of the UK's former Liberal Party leader, Jeremy Thorpe, on a charge of attempted murder of which charge Thorpe was acquitted after Cantley J's summing up which was very pro-defence. Wikipedia entry for the real life story here.

An unintended by-product of using the expression as a descriptor for poor Bart is that if one Googles the words, this blog's pages come up at the top of the list!

Perhaps the time has come to vary the appellation. The problem is to find a description which is as apt.
 

Wednesday, 14 Jan 09 - BBGR-GWB-6

Just 6 days before the world can say "Bye-Bye and Good Riddance to George Walker Bush" and the 19th day of the agony of the people of Gaza.

Latest reported casualty figures: 970 Palestinians killed, including some 400 women and children, and 4,300 wounded (Al Jazeera).

Turning back to the legal issues raised by Professor Luban, I venture to suggest that the first issue is really the use of the word "war" to describe the conflict.

As we know, the word "war" is often used by politicians as a figure of speech (hyperbole) to give the electorate the impression that they are doing something: "we are going to declare war on the drug dealers", "war on want", "war on knife crime", "war on high school truancy", etc, etc. Often the announcement is coupled with the announcement of some new official, as in " Drugs Czar", implying the vesting of unlimited executive power to get things done. Of course, 90% of the time, in reality the official has no such powers, his achievement is to upset the regular administration of things and he may even make action less effective and, more often than not, after a decent interval the position is quietly
eliminated.

As a legal term, "wars" whether declared or not may be defined as a state of armed hostilities between two sovereign states. A state of war (declared or undeclared) between nations has important legal consequences. For example, enemy aliens may be liable to be interned for the duration of a war. The assets of the enemy state may be expropriated

and the assets of enemy aliens may be vested in an official for the duration of hostilities.

But may one have a war between a state and a non-sovereign entity? I think not. The point has arisen here before in the context of the "war" on terror and I postulated that a true war could only be between sovereign states - relying on Vattel's Law of Nations.

Relying on that authority I expressed the view that there could not be a state of war against Al Quaida which is hardly even a body corporate, let alone a state, and I think the issue is one which has troubled even the US Supreme Court.

Just as with Chief Justice Cardozo's famous holding in Ultramares Corporation v Touche (1931) 174 NE 441 at 444 that it was undesirable to expose professionals to potential negligence liability “in an indeterminate amount for an indeterminate time to an indeterminate class” it must be undersirable to potentially the entire population of the world to the peril of being deemed an enemy alien of the United States of America for a potentially unlimited period of time.

I referred about to Professor Guiora's post on Jurist which referenced the issue of "declaring war against a non-state actor" and he pointed to the Israeli use of a novel concept:

"“armed conflict short of war”. I suggest that definition also is defective for legal purposes. In the days of Empire, only really big wars were dignified with that name.

When one sent out troops to deal with what were then not politically incorrect terms: "savages", fuzzy wuzzies", "wops" etc, in some remote country the politicians used either the term "punitive expedition" or "police action".

In "Intervention in International Law" (1921) Stowell defined a "punitive expedition" as the case of the situation: "When the territorial sovereign is too weak or is unwilling to enforce respect for international law, a state which is wronged may find it necessary to invade the territory and to chastise the individuals who violate its rights and threaten its security." That would fit the case of what the Bush Administration did in Afghanistan, but the problem is that under the UN Charter, that option is no longer lawful in
international law - the aggrieved state must take its case to the UN.

The term "police action" does not have a generally accepted legal definition in international law. Some academics seem to consider it a mere euphemism for an "undeclared war" outlawed by the UN Charter.

National governments tend to use it when they have a claim to sovereignty over a territory. France used "action de police" in relation to Algeria, and I think India has also used the expression, but in relation to its colonies the UK preferred the delightfully ambiguous route of declaring a "State of Emergency" (eg Malaya, Cyprus, Palestine). Either way in a "police action", the army does not act pursuant to the law of war but "in aid of the civil power", thus in Algeria, the insurgents were not interned as prisoners of war, but tried for rebellion or treason and many were guilllotined (remember the very dramatically effective prison scene of Pontecorvo's, La Bataille d'Alger, reportedy used as a training film by US Military staff in preparation for Afghanstan and Iraq - a demonstration that some generals never learn from the experiences of others).

So - one gets to the position that if one considers Palestine a state, then one has an undeclared war contrary to the UN Charter, if not, the invasion is some kind of punitive expedition.

Either way, my view would be that the invasion was unlawful without UN sanction and that Israel's political leaders may well therefore find themselves in some legal difficulty on their future travels.
 

"Chief Justice Cardozo's"

It's a trivial point, but since our governor has just chosen a new one given the previous one's term ended because of the state's mandatory retirement law, I'd note it is "Chief Judge"
 

Joe, I'm so sorry. The case is cited very widely in all common law jurisdictions and has been followed and approved.

But when we cite it's written "per Cardozo CJ" and (this shows one learns something new every day) I'd no idea the New York had vulgarised its judicial titles.

Still, better to have one's name writ large in every negligence textboook in the common law world than to have to be a "Chief Judge" rather than a "Chief Justice".

Come to that, given the number of investors in the world who have been pretty pissed off by the crash, I suspect the auditing profession (not to mention their professional indemnity insurers) ought to be blessing Cardozo's name one hundred times each day before starting work!
 

"Perhaps the time has come to vary the appellation. The problem is to find a description which is as apt."

Google "A nit on a gnat's nut." The source has not as yet been identified but it puts little Lisa's bro in perspective.
 

If Cardozo were alive today, based upon changing circumstanes, he might apply his majority decision in MacPherson v. Buick Motor Co. (1916) to these professionals, especially financial professionals, as "inherently dangerous." Madoff made-off with a lot of other peoples' money, endangering their well being.
 

This comment has been removed by the author.
 

Mourad said...

I am sure I could many more examples were I to trawl through all Bart's many, many posts (on which more later). But there is a common "leitmotif" in that they betray a desire to make the processes of the law less complex.

:::chuckle:::

Guilty as charged.

Do you need to be reminded that the purpose of law, especially criminal law, is to put the citizenry on notice of what is and is not permitted under the law?

What possible good is a law of war if it cannot be possibly understood by the soldiers it seeks to guide?

Your argument that the laws against police excessive use of force, libel and careless driving are as vague as the proportionality principle demonstrates a fundamental misunderstanding of the argument.

Police force statutes in Colorado and most other jurisdictions in the United States have a series of detailed objective definitions of the elements of the offense to protect the officers from spurious law suits and charges. I am litigating a case now offering this defense to a resisting charge against my client.

Libel's key element is whether the statement was true or false, which can be objectively determined.

Careless driving is based upon whether the defendant was objectively following the rules of the road and is usually attached as an additional charge to one of more traffic citations.

In stark contrast, the proportionality principle asks the fact finder to guess at what point along a continuity of force the force changes from being legal to illegal without any objective guidance on how to arrive at that conclusion.
 

Bart,

Care to take my challenge, then, and say whether there is anything you would consider disproportionate? Dresden, maybe?
 

LSR Bart's alleged difficulties with routine legal concepts notwithstanding, it seems that at least one US Judge has no difficulty with torture: Detainee Tortured, Says U.S. Official

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Qahtani was denied entry into the United States a month before the Sept. 11 attacks and was allegedly planning to be the plot's 20th hijacker. He was later captured in Afghanistan and transported to Guantanamo in January 2002. His interrogation took place over 50 days from November 2002 to January 2003, though he was held in isolation until April 2003.

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani's interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."

At one point he was threatened with a military working dog named Zeus, according to a military report. Qahtani "was forced to wear a woman's bra and had a thong placed on his head during the course of his interrogation" and "was told that his mother and sister were whores." With a leash tied to his chains, he was led around the room "and forced to perform a series of dog tricks," the report shows.

The interrogation, portions of which have been previously described by other news organizations, including The Washington Post, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani's heart rate dropped to 35 beats per minute, the record shows.

It seem like this is the first breach in the dyke or, perhaps more appropriately when speaking of the Bush Administration, the first breach in the levee, the conspiracy of silence about the interrogation techniques applied at Guantanamo Bay and then exported from there to Abu Ghraib, Baghram and who knows where else.

The "few bad apples at Abu Ghraib" thesis which LSR Bart has consistently advocated is now as dead as doornail in the Scrooge & Marley door. What chance now of keeping the detailed records away from the Defence lawyers now? None. Everything will have been recorded in triplicate. A few judicious offers of immunity and the floodgates will be truly open.

I have asked the question before - anyone care to put a figure on the measure of damages for unlawful detention for 7 years and 160 days of torture?
 

More from Uri Avnery's site Memo for Obama:-

For: the President-Elect, Mr. Barack Obama.

From: Uri Avnery, Israel.

The following humble suggestions are based on my 70 years of experience as an underground fighter, special forces soldier in the 1948 war, editor-in-chief of a newsmagazine, member of the Knesset and founding member of a peace movement:

-1- As far as Israeli-Arab peace is concerned, you should act from Day One.

-2- Israeli elections are due to take place in February 2009. You can have an indirect but important and constructive impact on the outcome, by announcing your unequivocal determination to achieve Israeli-Palestinian, Israeli-Syrian and Israeli-all-Arab peace in 2009.

-3- Unfortunately, all your predecessors since 1967 have played a double game. While paying lip service to peace, and sometimes going through the motions of making some effort for peace, they have in practice supported our governments in moving in the very opposite direction. In particular, they have given tacit approval to the building and enlargement of Israeli settlements in the occupied Palestinian and Syrian territories, each of which is a land mine on the road to peace.

-4- All the settlements are illegal in international law. The distinction sometimes made between “illegal” outposts and the other settlements is a propaganda ploy designed to obscure this simple truth.

-5- All the settlements since 1967 have been built with the express purpose of making a Palestinian state – and hence peace - impossible, by cutting the territory of the prospective State of Palestine into ribbons. Practically all our government departments and the army have openly or secretly helped to build, consolidate and enlarge the settlements – as confirmed by the 2005 report prepared for the government (!) by Lawyer Talia Sasson.

-6- By now, the number of settlers in the West Bank has reached some 250,000 (apart from the 200,000 settlers in the Greater Jerusalem area, whose status is somewhat different.) They are politically isolated, and sometimes detested by the majority of the Israel public, but enjoy significant support in the army and government ministries.

-7- No Israeli government would dare to confront the concentrated political and material might of the settlers. Such a confrontation would need very strong leadership and the unstinting support of the President of the United States to have any chance of success.

-8- Lacking these, all “peace negotiations” are a sham. The Israeli government and its US backers have done everything possible to prevent the negotiations with both the Palestinians and the Syrians from reaching any conclusion, for fear of provoking a confrontation with the settlers and their supporters. The present “Annapolis” negotiations are as hollow as all the preceding ones, each side keeping up the pretense for its own political interests.

-9- The Clinton administration, and even more so the Bush administration, allowed the Israeli government to keep up this pretense. It is therefore imperative to prevent members of these administrations from diverting your Middle Eastern policy into the old channels.

-10- It is important for you to make a complete new start, and to state this publicly. Discredited ideas and failed initiatives – such as the Bush “vision”, the Road Map, Annapolis and the like – should by thrown into the junkyard of history.

-11- To make a new start, the aim of American policy should be stated clearly and succinctly. This should be: to achieve a peace based on the Two-State Solution within a defined time-span (say by the end of 2009).

-12- It should be pointed out that this aim is based on a reassessment of the American national interest, in order to extract the poison from American-Arab and American-Muslim relations, strengthen peace-oriented regimes, defeat al-Qaeda-type terrorism, end the Iraq and Afghanistan wars and achieve a viable accommodation with Iran.

-13- The terms of Israeli-Palestinian peace are clear. They have been crystallized in thousands of hours of negotiations, conferences, meetings and conversations. They are:

13.1 A sovereign and viable State of Palestine will be established side by side with the State of Israel.

13.2 The border between the two states will be based on the pre-1967 Armistice Line (the “Green Line”). Insubstantial alterations can be arrived at by mutual agreement on an exchange of territories on a 1:1 basis.

13.3 East Jerusalem, including the Haram-al-Sharif (“Temple Mount”) and all Arab neighborhoods will serve as the capital of Palestine. West Jerusalem, including the Western Wall and all Jewish neighborhoods, will serve as the capital of Israel. A joint municipal authority, based on equality, may be established by mutual consent to administer the city as one territorial unit.

13.4 All Israeli settlements – except any which might be joined to Israel in the framework of a mutually agreed exchange of territories - will be evacuated (see 15 below).

13.5 Israel will recognize in principle the right of the refugees to return. A Joint Commission for Truth and Reconciliation, composed of Palestinian, Israeli and international historians, will examine the events of 1948 and 1967 and determine who was responsible for what. Each individual refugee will be given the choice between (1) repatriation to the State of Palestine, (2) remaining where he/she is living now and receiving generous compensation, (3) returning to Israel and being resettled, (4) emigrating to any other country, with generous compensation. The number of refugees who will return to Israeli territory will be fixed by mutual agreement, it being understood that nothing will be done that materially alters the demographic composition of the Israeli population. The large funds needed for the implementation of this solution must be provided by the international community in the interest of world peace. This will save much of the money spent today on military expenditure and direct grants from the US.

13.6 The West Bank, East Jerusalem and the Gaza Strip constitute one national unit. An extraterritorial connection (road, railway, tunnel or bridge) will connect the West Bank with the Gaza Strip.

13.7 Israel and Syria will sign a peace agreement. Israel will withdraw to the pre-1967 line and all settlements on the Golan Heights will be dismantled. Syria will cease all anti-Israeli activities conducted directly or by proxy. The two parties will establish normal relations between them.

13.8 In accordance with the Saudi Peace Initiative, all member states of the Arab League will recognize Israel and establish normal relations with it. Talks about a future Middle Eastern Union, on the model of the EU, possibly to include Turkey and Iran, may be considered.

-14- Palestinian unity is essential for peace. Peace made with only one section of the people is worthless. The US will facilitate Palestinian reconciliation and the unification of Palestinian structures. To this end, the US will end its boycott of Hamas, which won the last elections, start a political dialogue with the movement and encourage Israel to do the same. The US will respect any result of democratic Palestinian elections.

-15- The US will aid the government of Israel in confronting the settlement problem. As from now, settlers will be given one year to leave the occupied territories voluntarily in return for compensation that will allow them to build their homes in Israel proper. After that, all settlements – except those within any areas to be joined to Israel under the peace agreement - will be evacuated.

-16- I suggest that you, as President of the United States, come to Israel and address the Israeli people personally, not only from the rostrum of the Knesset but also at a mass rally in Tel-Aviv’s Rabin Square. President Anwar Sadat of Egypt came to Israel in 1977, and, by addressing the Israeli people directly, completely changed their attitude towards peace with Egypt. At present, most Israelis feel insecure, uncertain and afraid of any daring peace initiative, partly because of a deep distrust of anything coming from the Arab side. Your personal intervention, at the critical moment, could literally do wonders in creating the psychological basis for peace.

This article was published in the current issue of the progressive Jewish-American monthly TIKKUN.

============

This man is something else !
 

Enlightened Layperson said...

Bart, Care to take my challenge, then, and say whether there is anything you would consider disproportionate? Dresden, maybe?

The issue is whether the proportionality principle can objectively put the military on notice when the level of force becomes unlawful so they know when to stop. My or your subjective opinion about whether a use of force is disproportionate does not mean the principle is objectively applicable, but rather that we have personal opinions on the subject.

If I were Eisenhower, I would have considered the firebombing of Dresden to be disproportionate. However, that is my arbitrary personal opinion and I would not have criminally sanctioned my Army Air Corps subordinate for proceeding with the bombing if he had a different point of view.

This is why the military now issues detailed rules of engagement for each campaign to give the troops fairly objective guidance as to what is permitted and to provide an objective basis for war crimes prosecutions for violation of the rules of engagement. However, the treaty language concerning proportionality gives the commander nearly no practical guidance on how to draft the rules of engagement. Rather, the rules of engagement represent the commander's subjective opinion as to where the line should be drawn for this particular campaign and those rules may change with the circumstances of war.
 

Mourad said...

LSR Bart's alleged difficulties with routine legal concepts notwithstanding, it seems that at least one US Judge has no difficulty with torture

Everyone has their own subjective opinion on the subject. This JAG officer did not attempt to apply the torture statute, but rather drew her own line. Others disagreed with her.
 

What possible good is a law of war if it cannot be possibly understood by the soldiers it seeks to guide?

"No torture allowed. No way, no how, no excuses."

"Caaaannnnn't I juuusst breeeaaak hisss bonnneeesss a liiiiitle biiiitttttt? Pleeeaasseee???"

"No, Bart, you may not."

The CAT is quite explicit. Why "Bart" has difficulty here is between him and his psychotherapist ... or perhaps between him and his probation officer, should he persist.

Cheers,
 

Everyone has their own subjective opinion on the subject.

Continuing the thought:
"...and since such subjectivity can never be removed, everyone's opinions are equally valid..."

Have you been drinking from the fountain of naive postmodernism again?
 

Little Lisa's bro consistently tries to break the hermeneutic circle of discourse that tries to overcome our prejudices (pre-judgments) in searching for some truth. (See Hans Georg Gadamer's "Truth and Method").
 

Actually, Israel had a way to stop the rockets that did not involve killing civilians in Gaza but chose not to pursue it. It's called a C-RAM system and it can shoot down Hamas' rockets. Israel specifically chose not to purchase an operational system - making up excuses that simply weren't true (residents of Sderot sued over this) and chose instead to manufacture one that they knew wouldn't work for their purposes (called Iron Dome) but could be marketed internationally for other uses. Does this change the calculation?
 

Prof Luban's analysis of ius ad bellum is faulty in general, and in the way it relies on the ICJ advisory opinion on the use of nuclear weapons.
First, international law considers the ICJ opinion only as one source of law among several, including the Charter, treaties and customary international law (CIL). Therefore, although its opinions have some weight, they are not like utterances of the SCOTUS at all. Reliance for analysis of whether Israeli attacks on Gaza and Hamas only on this one ICJ opinion is not kosher.
Second, Luban gets the importance of Art 51 wrong. Had he read the opinion he would have been alerted to the importance of Art 2(4) and CIL in interpreting art 51. Art 2(4), read with Art 51, says very clearly that the central case being made in the Charter is when the "territorial integrity or political independence" of the state are being attacked does the right to use art 51 as a justification arise. Border skirmishes, for example, which happen all the time, are not enough to undertake art 51 armed aggression. In the case of Israel and its neighbors, there is ongoing border violence, and has been for years, if not decades. It is well known that when Israel claimed it was attacking Lebanon and Hezbullah in 2006 the excuse of the kidnapping of the soldier was pretext. Hez. and Israel had for years been engaged in such activities. Neither Hamas nor Israel has ever honored a cease-fire for any length of time; therefore the idea these rockets were somehow different from all the other rockets is patently pretext. The main trigger in Israel's aggression is the changing of the guard in the US, Israel's enabler and supplier of weapons. No doubt what Biden was referring to was this aggression, probably planned after the US nixed Israel's plan to attack Iran.
Third, CIL does indeed require proportionality and necessity in the overall response in an art 51 defense.
Fourth, and the main point, is that it is inconceivable that Israel ever felt that its "territorial integrity or political independence" was threatened by Hamas rockets. That claim, if made, is pretext as well. There is no doubt Israel has potential threats out there would rise to the level of an art 51 defense, for example Iran; but iran has not attacked, and the *relatively* harmless Hamas rockets cannot be read as an Iranian attack, even if Iran provides support. Otherwise, it would be arguable the US was attacking Iran through its proxy Israel.

following are a couple of relevant excerpts from the opinion:

38. The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is
prohibited. That paragraph provides :
"Al1 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."
This prohibition of the use of force is to be considered in the light of
other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual or collective self-defence if
an armed attack occurs. A further lawful use of force is envisaged in
Article 42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VI1 of the Charter.

40. The entitlement to resort to self-defence under Article 51 is subject
to certain constraints. Some of these constraints are inherent in the very
concept of self-defence. Other requirements are specified in Article 51.

41. The submission of the exercise of the right of self-defence to the
conditions of necessity and proportionality is a rule of customary international
law. As the Court stated in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of Arnerica) : there is a "specific rule whereby self-defence would
warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international
law" (I. C. J. Reports 1986, p. 94, para. 176). This dual condition
applies equally to Article 51 of the Charter, whatever the means of force
employed.
 

The reasoning applied to jus in bello and jus ad bellum considerations is tendentious and simplistically reductionist throughout. Lawyerly handwringing, tergiversations and similar forms of indulgence. The law - though international law is a species unto its own and is particularly given to ungrounded, ideological interests - is not an abstraction, it is, or should be, grounded and rooted in highly problematic, even abstrusely problematic considerations. Plumbing below the surface of things an inch or two, a foot or two, is not tantamount to plumbing to requisite depths.

Regardless, since the war, or the latest round in the overall conflict, began in 2001/2002 when Hamas began firing mortars, rockets and other munitions into Israeli civilian population centers - where is the query that is directed toward Hamas?
 

With apologies, I retract my dissent. Earlier, I skimmed the post and seemingly latched onto a certain subset of the commentary. Came back, read it in full and without skimming, so need to retract my prior comment, which was injudicious.