Breaking the Silence bids to place IDF, Hamas on level field
search
Analysis

Breaking the Silence bids to place IDF, Hamas on level field

At the heart of the NGO’s headline-making report is an effort to compel Israel to treat enemy civilians the way it would its own. And that, say those who set the IDF’s ethical guidelines, is both impracticable and immoral

Mitch Ginsburg is the former Times of Israel military correspondent.

Infantry soldiers operating on the ground during Operation Protective Edge, July 20, 2014. (IDF Spokesperson's Unit/Flickr)
Infantry soldiers operating on the ground during Operation Protective Edge, July 20, 2014. (IDF Spokesperson's Unit/Flickr)

Breaking the Silence, an Israeli nongovernmental organization, used to gather and publish accounts of military service in the West Bank and Gaza as part of an attempt to turn Israeli society against the occupation of those areas. Now it has shifted tack.

The NGO’s most recent report, at its core, seeks to change how Israel wages war.

Breaking the Silence, which on Tuesday is hosting a public launch of the report in Tel Aviv, largely expects Israel to value and seek to preserve the lives of the citizens of Gaza and limit collateral damage just as it would if its own civilians were being held by Hamas — an approach that would mean more Israeli soldiers would pay with their lives, fewer Palestinian lives would be lost, and Israel’s ability to bring its military might to bear against Hamas would be drastically reduced.

War, in that context, would look a lot like a hostage-rescue mission, based almost exclusively on small arms fire. The strongest army in the Middle East and the terror group that controls Gaza would be facing off on a largely level field.

How to fight the wars of today

On the face of it, the 240-page report issued last week — comprising anonymous firsthand accounts of soldiers and officers who served in Gaza as combat troops or in support roles — is much like its predecessors.

Of the 60 or so incidents detailed, two are clear instances of alleged cruel and wanton fire without provocation – once at an innocent bicycle rider in a noncombat area, with the shooter taking a perverse joy at the hunting of a human being, and once in the al-Bureij region, when tanks were encouraged to unleash random fire against a façade of faraway buildings that loomed over the tank position.

If accurately described, these would appear to be criminal acts and should be prosecuted as such. One would hope the army would make every effort to probe such cases, although Breaking the Silence makes it difficult by withholding not only the names of the participants but also the dates and details of the cases.

Col. Ghassan Alian, the commander of the Golani Brigade, addressing IDF troops in Gaza, August 2014. Alian was lightly injured during fighting in Shejaiya (photo credit: IDF Spokesperson's Unit/ Flickr)
Col. Ghassan Alian, the commander of the Golani Brigade, addressing IDF troops in Gaza, August 2014. Alian was lightly injured during fighting in Shejaiya (photo credit: IDF Spokesperson’s Unit/ Flickr)

Then there are instances that actually undermine a key Breaking the Silence contention — that IDF soldiers in Gaza entirely abandoned the military establishment’s rules of engagement. For example, an anonymous first sergeant interviewed by the NGO describes the IDF’s reaction to an unarmed male spotted in a combat zone. Calling the man a scout, the first sergeant interviewed in the report said that “as far as we’re concerned, such a person is a terrorist, for all intents and purposes. He could be directing forces, directing mortars, gathering information on where we sleep.” As such, he would be shot, the first sergeant said.

The human rights groups do not always spell their demands out in full. But what they apparently expect of Israel is that it wage its wars against Hamas while treating the civilians of Gaza exactly as it would treat its own civilians, were they taken hostage by enemy forces

By contrast, if the same man were spotted wandering aimlessly and not wearing a heavy coat, or if he were a she and appeared to be pregnant — “and keep in mind even a pregnant woman could blow herself up on you” – soldiers would not just open fire. “There is logic,” the soldier, who served on the ground in Gaza, said. “But if you see a man, and it’s clear that he’s between 20 and 40 years old – then you don’t hesitate.”

Quite apart from testimonies from this self-selecting group of activist soldiers, however, the central battle being waged since last summer’s war — on the pages of newspapers and in the NGO reports from B’Tselem, Physicians for Human Rights, and Breaking the Silence — is not about alleged individual crimes or infractions. It is about how to fight, if at all, the wars of today.

Lt. Gen. (res) Benny Gantz during Operation Protective Edge alongside Maj. Gen. Sami Turgeman, center, and another senior officer during Operation Protective Eddge on August 2, 2014 (photo credit: Judah Ari Gross/ IDF Spokesperson's Unit/ Flash 90)
Lt. Gen. (res) Benny Gantz during Operation Protective Edge alongside Maj. Gen. Sami Turgeman, center, and another senior officer during Operation Protective Eddge on August 2, 2014 (photo credit: Judah Ari Gross/ IDF Spokesperson’s Unit/ Flash 90)

The position of the Hamas rulers of the Gaza Strip was summarized by Bill Clinton in July. “They have a strategy,” the former president said on India’s NDTV, “designed to force Israel to kill their own civilians so that the rest of the world will condemn them.”

Israel, for its part, seeks to simplify — to recreate, within the urban centers of Gaza and Lebanon, a battlefield of old, a place where enemies meet and where civilians need not be taken into account. It drops leaflets, uses loudspeakers, makes phone calls and fires “warning” bombs to encourage civilians to leave the areas in which it seeks to target the Islamists’ rocket launchers, attack tunnels, and gunmen. Many civilians do leave, but some always stay.

The human rights groups do not always spell their demands out in full. But what they apparently expect of Israel is that it wage its wars against Hamas while treating the civilians of Gaza exactly as it would treat its own civilians if they were held hostage by enemy forces.

Shackling the IDF

An article written six years ago by two philosophers might be considered the ideological inspiration for Breaking the Silence’s approach.

Writing in the New York Review of Books in the aftermath of the IDF’s Operation Cast Lead against Hamas in Gaza in 2008-9, Avishai Margalit and Michael Walzer gave a hypothetical example of how they believe Israel should wage war. They presented a scenario in which Hezbollah seizes control of Kibbutz Manara, near the Lebanon border and sketched out four possibilities: Hezbollah holds the kibbutz members hostage and mingles among them; Hezbollah takes only the outskirts of the kibbutz and seizes pro-Israeli, non-citizen volunteers in the area; Hezbollah snatches a group of anti-Israel demonstrators who had come to the border region to protest the war and uses them as human shields; and Hezbollah, finding that the kibbutz has been evacuated in advance, brings in Lebanese citizens in order to claim that they have returned to land that belongs to them and also in order to use them as human shields.

Implying that Hezbollah in this fictional situation is akin to Hamas in Gaza, holding effective control of the territory, the two philosophers asserted that Israel’s military effort to recapture the kibbutz must be identical in all four scenarios — whether the civilians at the kibbutz were Israelis, Lebanese or anybody else. “We claim that Israel is morally required to behave in all those cases the way it would behave in the first case, when its citizens are held by Hezbollah in ‘a mixed vicinity,'” they wrote. Whatever collateral damage is acceptable to Israel when dealing with the rescue of its own citizens should be “the moral limit” in the other cases, too, they opined.

Israel, or at least the man who helped craft Israel’s policy for combat amid a civilian population, finds this formula shackling to the point of being morally indefensible.

“This is not a reasonable demand,” according to professor Asa Kasher, the author of the army’s ethical code and of a very influential 2004 paper written with Maj. Gen. Amos Yadlin about the ethics of fighting in a civilian environment. For Kasher, it is morally incorrect to argue that a state’s army has the same obligation to enemy civilians as it does to its own civilians, and this, in turn, means that the army has more leeway in battling inside an enemy civilian area.

Israel says it cannot be deterred by human rights organizations from waging war on the ground in the way that it does against its unabashedly brutal enemies. To do so would be to play into the hands of its enemies, and to consign itself to defeat

“First of all, Israel, like every state, has a primary duty to protect its own people’s lives that is different than the responsibility it has to enemy non-combatants,” Kasher wrote in an essay in the Jewish Review of Books toward the end of last summer’s war). “Moreover, enemy territory such as Gaza is not under its effective control. Israel is bound by the Just War principles of distinction, proportionality, and its strong commitment to minimize the loss of life. But no state owes more than that to warned enemy citizens located in the vicinity of terrorists, and no democratic state would erase the distinction between military ethics and police ethics in this way. A demand to act in Gaza the same way we act in Tel Aviv would be tantamount to asking Israel to relinquish the duty of self-defense.”

Professor Asa Kasher (Photo credit: Oren Nahshon/FLASH90)
Professor Asa Kasher (Photo credit: Oren Nahshon/FLASH90)

Crucially, Kasher also argued that IDF combatants, “as citizens in military uniforms,” are “entitled to ask the state, as well as the IDF and its commanders, whether they are being placed in greater jeopardy to save the lives of enemy non-combatants who have been repeatedly warned to leave the scene of battle.”

An affirmative answer to this question, he wrote, “would be morally unacceptable.”

In other words, when deciding which lives are worth more, Kasher and the army, while abiding by the principles of distinction and proportionality — the moral imperatives to distinguish between civilians and combatants and to attack enemy positions only when the potential for collateral damage is limited, respectively — determined that Israel must place Israeli civilians first, followed by Israeli soldiers, enemy civilians, and enemy soldiers.

The human rights groups, including Breaking the Silence, seem to strive to switch the second and third spots in the aforementioned list — to place enemy civilian lives above those of Israeli soldiers. That is the heart of the debate. It cuts directly to Israel’s ability to wage war against its enemies.

Israel, facing similar wars in the future, both in Lebanon and in Gaza, says it cannot be deterred by human rights organizations from waging war on the ground in the way that it does against its unabashedly brutal enemies. To do so, Israel says, would be to play into the hands of its enemies, and to consign itself to defeat.

New rules for a new reality

In fact, Israel is arguing to the international community that a change to the rules of war — reflecting the new realities in which groups like Hamas and Hezbollah intentionally position civilians on the battlefield — is necessary.

Lt. Gen. (res) Benny Gantz, the commander of the IDF during the war, said last week at a conference aimed at changing the rules of war, that “it is important to go back to a time when laws of war were meant to limit the bad guys” — as was the case, he asserted, when the Fourth Geneva Convention was written in 1949.

But even if international opinion begins to shift in Israel’s favor, the IDF and the government, while adhering to Kasher’s parameters, cannot afford to entirely dismiss the Breaking the Silence report.

When it comes to the firing of explosive artillery shells, 19,000 rounds of which were used during the 50-day war, the MAG (Military Advocate General) Corps and the Attorney General may need to lay out the legal parameters for use in an urban setting. Such parameters would likely not be made public — as, indeed, the IDF’s precise rules of engagement are not made public — as Hamas would be sure to exploit such knowledge.

Additionally, there is a credible-sounding charge in the report, detailing how field officers at times guided artillery close to a sensitive site by first having a nearby, less sensitve target authorized on the official level, and then walking the artillery closer to the actual target by ordering adjustments during the time of firing. More oversight on such matters will surely be considered.

Danny Efroni in 2013. (photo credit: Yossi Zeliger/Flash90)
Danny Efroni. (photo credit: Yossi Zeliger/Flash90)

Finally, much of the responsibility for maintaining moral parameters rests on the shoulders of the commander of the MAG Corps, Maj. Gen. Danny Efroni, who operates independent of the IDF chain of command. Efroni is under incredible strain from all sides: The Israeli public, feeling under siege from enemies who use civilian deaths to their advantage, does not want to see any of its soldiers put on trial for the criminal usage of lethal force. But in this battle over how Israel is permitted to wage war, Efroni is obligated to try any soldiers and commanders credibly alleged to have carried out criminal wrongdoing, and to ensure, as Kasher noted, that Israel does all in its power “to alleviate the calamities of war.”

Critical to the IDF’s capacity to credibly counter reports like that of Breaking the Silence is that allegations of abuse be investigated and that the effort to minimize civilian deaths be relentless. Only in that kind of environment, as Kasher would doubtless acknowledge, can Israel’s ethical order stand.

read more:
less
comments
more