What Would You Do?

OK. Pop quiz.

Get out your number two pencils. (Do they still use number two pencils? Do they still make pencils?)

Over the past few years there's been plenty of news coming from the Middle East, accompanied by extensive invective. It's been hard to separate the problems and to decide what we, and the participants, should be doing. In order to clarify everyone's thinking on the subject I've prepared a set of questions that may illuminate some of the issues. This is an open-book test and you're encouraged to use any publications of the United Nations, the European Union, and the Boycott, Divestment, and Sanctions Movement. No other references will be permitted. The examination will consist of the presentation of realistic situations – some already experienced – followed by possible responses. You are expected to be fair to all participants and to follow moral guidelines. Two subjects are covered: proportionality and moral equivalency. Since it is often difficult to separate them, no attempt has been made to do so. But in all instances you should look for the proportional and morally equivalent action.

You are a soldier, standing in a crowd at a bus stop. An automobile heads directly into the crowd running over, and possibly killing several people. The car stops and the driver exits with a hatchet. He then starts running after bystanders.

Do you

a. shoot the man with the hatchet,

b. protect the man from the enraged crowd,

c. help the man escape from the mob, or

d. run home, get your car, and look for a crowd in his neighborhood?

Three Israeli soldiers are approached by a civilian Arab family. The mother pulls a pair of scissors from under her clothing and stabs and kills one of the soldiers. The other family members (including four children) reach into their clothing.

Should the remaining soldiers

a. flee,

b. shoot the woman,

c. shoot the entire family, or

d. run home and get a pair of scissors?

An Israeli soldier comes under attack by a mob that corners him. He is armed with an automatic weapon. The mob begins throwing stones and Molotov cocktails at him.

Should his response be to

a. advise the mob that their acts are illegal,

b. fire at the advancing crowd,

c. pick up some stones and throw them back, or

d. consult his procedure manual for what would be approved?

Jihadists in Gaza send unguided missiles into Israel. They are aimed in the vicinity of a school but land in an adjacent field.

An appropriate response by Israel would be to

a. ignore the attack since no one was killed,

b. use the Iron Dome system to prevent future attacks,

c. remove any guidance systems from their missiles in order to ensure a level playing field if they return fire, or

d. target and attack the site from which the missiles were launched?

If in the previous scenario the attack came from a United Nations hospital which the terrorists were using as a military base, and if children in the school in Israel were killed

Should the response be to

a. consult the United Nations about the incident,

b. use the Iron Dome system to prevent future attacks,

c. return fire upon the source of the missiles irrespective of collateral damage, or

d. attack a nearby school in order to kill children and even the score?

BONUS QUESTIONS

a. Which of the above instances merits a UN or EU condemnation of Israel?

b. Which Israeli(s) should be brought before the International Court for war crimes?

c. In which cases are BDS actions not warranted?

d. Wouldn't all of the world's problems disappear if there were no Israel?

Think about these questions and answer them. The answers are obvious, but you have to reach them yourself – although the permitted references will certainly guide you to the truth. After all, we've known for millennia how to bring morality, pea,ce and goodwill to the globe on which we live.

Proportionality – Part 3

Well, I've decided to accept the concept of proportionality. My problems are that I don't know to whom and to what I should apply it. One thing I've learned is that it only has meaning when Jews are involved. It's never used in other circumstances. But after that the criteria become a little vague. So I thought I'd offer some of my questions in the hope that a reader would be able to help me with them. Once I understand what is required, I'm sure a solution to the current situation will be easy.

1. Is the issue solely one of people? And if that is the case, what people are counted? Live or dead? I know Jews have to be involved, but I'm not sure if we should count Arabs or Muslims. And I don't know if our calculations should be based on all Jews, Jews in the Middle East, Jews in the land they claim for themselves, or land within the green line. Similarly, I don't know whether to include Muslims (since the Jews are defined by religion I thought I'd work with religions, but I could be wrongⁱ) in what they claim are “occupied” territories, Muslims in lands which they claim are theirs even if others rule them now, Muslims around the world, or should I use some other criterion.
   
   
2. Should there be proportionality of territory? Does the idea apply to land as well? And if the issue is Jews versus Muslims (or Arabs – see end note number 1), should lands be distributed proportionally? What about tunnels between lands? Should Israel be permitted to dig a proportional number of tunnels under Muslim lands?ⁱⁱ
   
   
3. Does proportionality apply to resources? If, for example, the Arabs control most of the region's oil, are they obliged to give a fair proportion to Israel? The same principle should, of course, apply to all resources, including territory as noted above.
4. Since it is clear that people are the primary “resource” that is being counted when there is talk of proportionality, and among Muslims some of the wealthier individuals have more than one wife, I'm not sure if wives should be given to Israeli government officials in numbers that will even things out. On the other hand, since Jewish intellectual capacity exceeds that of Muslims,ⁱⁱⁱ it makes sense to send some Israeli academics^iv to Muslim countries – not as spies but as resources.
   
   
5. Perhaps proportionality should include beliefs and practices. In Israel the Muslims make up about twenty percent of the population, and the Jews seventy-five percent. It would be a facetious suggestion that the same proportions should exist in Muslim lands, but it might be reasonable to expect that such countries should have twenty percent Jews, with the right to practice their religion openly, and with a right to serve in the government and on the courts as Muslims have in Israel.
   
   

These, though, are unrealistic question and suggestions. Indeed, they're silly. All that's ever discussed is the number of civilians killed.^v Those who speak of proportionality are either disingenuous or stupid. They use “proportionality” to cover their biases. Especially when they only apply the idea to a situation in which they don't like the outcome. European countries (and others) hitch their wagons to “oppressed” (who, in their eyes, can do no wrong) and “feel their pain.”^vi And the numbers prove their point.

But proportionality is a flawed concept. It gives the attacker the opportunity to choose weapons and decide the level of hostilities. If followed, it gives him the chance to decide what level of punishment he's prepared to accept. And no more. The attempt to “teach him a lesson” and prevent future aggression would be a violation of proportionality and a demonstration of oppression by the party he attacked in the first place. “Proportionality” turns losing into winning – at least on “moral” grounds – in the eyes of a world that is looking for a way to disguise its prejudice as virtue: as a defense of the weak – even if that world doesn't care anywhere else.

The solution is one that Israel won't, and shouldn't accept. Hamas may choose to force its people to become “martyrs,”^vii but Israel must not turn its citizens into the terrorists and victims that the “Palestinian government”seeks for its people – its political pawns. Israel must not sacrifice its people as its enemies do. Hamas may see the hostilities as a numbers game with the prize for the most deaths being the world's sympathy. If humanity accepts this idea, however, there is no hope for a just solution. The only proportionality that we should seek relating to those who die in war is 0:0.

And that all begins with an end to rockets from Gaza and the aggression of Muslims against Jews.

Next episode: “It's Easy Being Green” – Some thoughts about travel.

I        If the use of religion is anathema, and the reader defines those who oppose Israel as Arabs, He should just substitute words as necessary. I do not mean to offend anyone, and I'm happy to accept any definition. But the questions that I have still remain.

ii       What, by the way, is a Muslim land? Does the term apply to anywhere Muslims have lived in the past? If so, Israel should be permitted to dig tunnels under Russia, France, the United States, and a plethora of other countries. The number, however, might be limited to lands that have been under Muslim rule before. Tunnels under Spain would be interesting.

iii      Muslims may refuse to accept such an idea. Fine. They will not need any Israeli expertise in their rebuilding efforts.

iv       This, of course, would require an end to the boycott of Israeli academics in Muslim countries, including England which is resembling such a land more each day.

v        Actually, what's discussed is the number of what Hamas tells the world are dead civilians killed by Israel. Various news reports tell us that the “dead” are sometimes still alive, they're not necessarily civilians, and that some of them have been killed by Muslims. Or placed in jeopardy by Muslims.

vi       Or is it that they feel their own guilt, seeing themselves as oppressors – both historically and currently. Current and historic antisemitism play a significant part in their public stand, but they cannot admit to them.

vii      Whether or not they wish to assume such a role.

Proportionality – Part 2

So here's the question. When was the last time you heard the term “proportionality,” or, for that matter, “disproportionality,” in any context other than the hostilities between Israel and the Palestinians? There are wars in the Ukraine, Syria, Iraq, and Afghanistan; battles and kidnappings are the news from various African countries; China and other countries in the Far East exercise control over their populations that would be viewed as unacceptable anywhere else in the world.

But only Israel, responding to suicide bombings and rocket attacks on its citizens – usually civilians – is described as acting disproportionately.

During the second world war, there were no American civilian casualtiesⁱ but 350,000 Japanese civilians were killed. Over ten million Soviet civilians dies but only 700,000 Germans.ⁱⁱ In February 1945, when the war was all but over, the British and Americans firebombed the city of Dresden killing between 35,000 and 135,000ⁱⁱⁱ residents and refugees. And, of course, there was the Holocaust.

But proportionality was never an issue, although the term had been introduced in the previous century.^iv It remained for the Palestinians to reinvent it for propaganda purposes, and for the world to eagerly accept it as it seems to do for any excuse to tar Israel. It is not in vogue^v at present to blame Jews for the world's problems, but Israel is fair game. Winning a defensive war has never been seen as an evil, but that is the current view – at least in this case.

One of the “justifications” through the ages for hating the Jews (not that any was considered necessary) was that they were cruel. Antisemites were quick to point out that talion law could be found in the Torah (which, incidentally, was part of the basis for both Christianity and Islam), but it was never acknowledged that the law was understood by the Rabbis to require monetary reparations to the victim for injuries rather than physical injury of the perpetrator. And talion law was developed by the Babylonians,^vi not the Israelites.^vii

In any event, if we accept the concept of “proportionality,” it is important that we acknowledge both what should not be seen as a violation, and what we should view through this lens. As I noted last week, according to Luis Morena-Ocampo (Chief Prosecuter at the International Criminal Court),

“Under international humanitarian law ... the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law ... permit[s] belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”

Civilian deaths, therefore, resulting from a valid military attack, do not necessarily violate the “principle of proportionality” nor are they war crimes. But attacks against civilians, and the intentional placing of civilians in harm's way, are war crimes. And there is no requirement that the more powerful side “pull its punches” when dealing with an enemy bent on destroying it. International Law places no sanctions on ability, preparation, and resources.^viii Feelings of guilt and sympathy may carry weight from a public relations standpoint, but they are not legal principles.

Yet the high casualty rate among the Palestinians while Israel is successfully defending itself against the attack from Gaza is being used as the (current) justification for actions against Israel, and boycotts and divestment are popular so the UN, Protestant church groups, academics, “human rights workers,” and other antisemites are jumping on the bandwagon. Although they protest that advocacy for the Palestinians suffering under the oppression of Israeli colonialism does not constitute antisemitism,^ix all the groups seem to see Israel as the cause of the world's most significant problems. When questioned about why, with so many abominations from which to choose, they focus on Israel, the usual response is that they have to start somewhere. But “somewhere” is always Israel and there never seems to be any progress from there to other areas of hostility, even though most of the others are far more lethal. And there is never the acknowledgement of who is atacking and who is defending.

In this instance it is anti-Semitism.

There is a disproportion, but the response by Israel has not been disproportionate. There is a war, and attacks are being met by defense. It is disingenuous to fault a country under attack simply because it is winning, and those who do can only be seen as seeking an excuse to do so. The world is either unaware of Morena-Ocampo's views or consciously ignoring them. The reason may be ascribed to political necessity or economics but it is hard not to see antisemitic bias and an antisemitic basis to the actions. The question is not one of disproportionality.

Next episode: “Proportionality – Part 3” – Bottom line.

I       All WWII statistics (except Dresden) from http://warchronicle.com/numbers/WWII/deaths.htm.

ii       Admittedly 1000:1 (or whatever) is just as much a proportion as 1:1, but the latter is more in line with the desires of those who promote the concept. Actually, those who do so would like to see only Israeli deaths and would not raise the issue of proportions were the numbers reversed.

iii      http://www.historylearningsite.co.uk/bombing_of_dresden.htm

iv       See http://en.wikipedia.org/wiki/Proportionality_(law)

v        Indeed, it is illegal in some places.

vi       See http://www.britannica.com/EBchecked/topic/581485/talion

vii      Another point of interest: Although the death penalty was permitted in ancient Israel, it was difficult to justify, very rarely used, and viewed with disdain. In modern Israel capital punishment is prohibited – Adolf Eichmann was the sole exception. Would that the death penalty and cruelty were forbidden in the surrounding Islamic countries and by Sharia law.

viii     There are laws and guidelines that deal with justification for battle and responsibility for war in general, but they have no bearing on proportionality once war is declared.

ix       Those involved rarely have an adequate defense for their action and are quick to claim that whenever Jews suffer any penalty for their actions they accuse others of antisemitism. While their accusation is not true, in all too many instances – and this is one of them – the charge of antisemitism is accurate. It is hard to attribute any other explanation to the uniformity of the attacks on Israel and the blindness to violence around the world.

Proportionality

When my sons were still young, a while back, I used a method of discipline for violence which, I suspect, would now be at best frowned upon and, at worst, would subject me to punishment by protectors of “abused” children. The method was simple. If one of my sons struck the other, the penalty was that the injured party, under my supervision,ⁱ was permitted to strike the aggressor in the same way – as hard as he could.

My wife and I were blessed with childrenⁱⁱ who accepted the system and agreed that it was fair, and who ultimately accepted their sib's blows with resignation. They knew the rules and they knew the consequences of violating them. There were no excuses. They may have tried to justify their actions but, in the end, admitted their faults and acquiesced in the resulting turnabout. They knew that an appeal to a different judge – their mother – would be fruitless, and they knew that they could not manipulate the system. Perhaps we were just lucky or perhaps the system contributed to their behavior, but the level of violence and acting out was low.ⁱⁱⁱ

The subject comes up because of the extensive criticism that Israel has been receiving regarding its actions in the ongoing hostilities in the Middle East. (Today is August 8th, but this won't be published for a while.)  Proportionality is a complex and loaded subject – one that I've avoided until now – but the debate on the events there seems to be centered on it, rather than the situation which has triggered the fighting, so I can no longer ignore it.

Proportionality. Perhaps the most conspicuous, but least understood, concept related to the story. So the most useful start in what will probably turn out to be a two or three part^iv discussion of the subject has to be historical, political, and linguistic. According to Wikipedia,^v

“The proportionality test was first developed in the High State Administrative Courts (Oberlandesgericht) in Germany in the late 19th century, to review actions by the police. The proportionality test originated systematically with the jurisprudence of the German Constitutional Court, the Bundesverfassungsgericht.”^vi

And in terms of current international law,

“The harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective.”^vii

These words are well-crafted, like most diplomatic verbiage, but may yield varying (and contrary) interpretations. But what is “right?” What does it mean?

According to Luis Moreno-Ocampo, Chief Prosecuter at the International Criminal Court,

 

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)).

“Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).”^viii

It remains a little opaque, but it seems to prohibit “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Hence it permits such actions if reasonable in relation to the anticipated military advantage. It does not seem to permit, however, causing the deaths of civilians for political purposes.

As I noted, the interpretation of these criteria may be confusing^ix but, as I'll indicate next week, there seems to be a disconnect between what the world says, and what is actually happening.

Next episode: “Proportionality – Part 2” – More of the same.

i        To make sure the injured party himself played fair, lest punishment result.

ii       And still am.

iii      I don't mean to suggest that my children (two sons and a daughter) saw eye-to-eye on every issue, but they learned how to manage their disagreements in a reasonably civilized manner. As I said, we were blessed.

iv       Or maybe more. I hope you don't get too bored.

v        See http://en.wikipedia.org/wiki/Proportionality_(law)

vi      According to that nugget, “proportionality” was a concept invented and developed by the nation that gave the world the Holocaust. While invoking the Holocaust to shed light on other situations trivializes it, it is worth mention that those who speak of proportionality frequently raise the issue, and condemn Israel for “Nazi-like” behavior.

vii       See note iv.

viii     Moreno-Ocampo, Luis (9 February 2006), OTP letter to senders re Iraq, International Criminal Court.

ix       As I mentioned, it isn't even clear what “proportionality” means – or, better, “proportional and not excessive.”