Avishai Margalit and Michael Walzer here go to some lengths to reject a subsidiary claim about the duty of states towards their soldiers involved in operations against terrorists made by Asa Kasher and Amos Yadlin in a paper -subscription required -that is mainly concerned with other questions.

They set out the core of their argument as follows:

Kasher and Yadlin ask:

What priority should be given to the duty to minimize casualties among the combatants of the state when they are engaged in combat…against terror?

When they write of combatants of “the state,” the authors mean states in general, including the armed forces of the state of Israel. By “terror” they mean the intentional killing of civilians, as by members of Hamas in recent years. And this is their answer:

Usually, the duty to minimize casualties among combatants during combat is last on the list of priorities, or next to last, if terrorists are excluded from the category of noncombatants. We firmly reject such a conception because it is immoral. A combatant is a citizen in uniform. In Israel, quite often, he is a conscript or on reserve duty. His state ought to have a compelling reason for jeopardizing his life. The fact that persons involved in terror are depicted as noncombatants and that they reside and act in the vicinity of persons not involved in terror is not a reason for jeopardizing the combatant’s life in their pursuit…. The terrorists shoulder the responsibility for their encounter with the combatant and should therefore bear the consequences.

And they go on:

Where the state does not have effective control of the vicinity, it does not have to shoulder responsibility for the fact that persons who are involved in terror operate in the vicinity of persons who are not.

Our main contention is that this claim is wrong and dangerous. It erodes the distinction between combatants and noncombatants, which is critical to the theory of justice in war (jus in bello). No good reasons are given for the erosion.

In my view, Margalit and Walzer misconstrue the argument offered by Kasher and Yadlin.

1.

The fact that persons involved in terror are depicted as noncombatants and that they reside and act in the vicinity of persons not involved in terror is not a reason for jeopardizing the combatant’s life in their pursuit.

This can’t reasonably be taken to mean that Kasher and Yadlin think that soldiers shouldn’t have to run any risks while fighting against terrorists when there are civilians also present, in order to protect the lives of the latter. It can only mean that, in their view, they shouldn’t have to exposes themselves to additional risks over and above those already implicit in their status and activities, in order to avoid harming civilians, a category of person which their argument clearly continues to recognize.

2.

Margalit and Walzer do themselves a quick and unjust favor in their argument when they say that

There is nothing in these quotations [the ones from Kasher and Yadlin above] that hinges on the word “terrorists.” Replace that word with “enemy combatants” and the argument remains the same. Kasher and Yadlin are simply assuming that the war against the enemy is a just war. Their claim, crudely put, is that in such a war the safety of “our” soldiers takes precedence over the safety of “their” civilians.

Rather a lot depends on the fact that Kasher and Yadlin are arguing about operations against terrorists - you can call them “irregular forces” if you are squeamish about considering the full range of activities carried out by organizations such as Hamas and Hezbollah - and not against the armies of other states. While the armies of states usually take at least enough notice of the law of armed conflict to be aware of when they might be breaking it, terrorist organizations, especially those that believe themselves to have a secure voice link to God, are contemptuous of attempts to limit the scope and consequences of warfare by legal means. For them, whatever they see as bringing victory closer is justified.

Of course, this doesn’t mean that those regular forces can therefore do whatever is expedient to combat and defeat them, it does mean that such forces can’t be expected to ignore the nature of the enemy they are fighting against.

3.

Margalit and Walzer go on to say that

The position that we mean to oppose is the opposite of this view. It holds that only the side that is fighting for a just cause (our side) has a right to fight, and that soldiers on the other side have no rights at all. Anything they do is immoral, whether they attack our soldiers or our civilians. And since our soldiers and civilians are equally innocent, we cannot ask our soldiers to take risks to protect enemy civilians. Those civilians have been put at risk by the immoral conduct of their soldiers.

There’s nothing in Kasher and Yadlin’s paper to suggest that they support this view. Their argument rests on the duty of states to protect the lives of their citizens, does not hold that soldiers cannot be expected to run any risks to avoid harm to civilians and is developed under the following overarching principles:

Military acts and activities carried out in discharging the duty of the state to defend its citizens against terror acts or activities while at the same time protecting human dignity, should be carried out according to the following priorities which reflect the order of duties the state has toward certain groups:

(d.1) Minimum injury to the lives of citizens of the state who are not combatants during combat;

(d.2) Minimum injury to the lives of other persons (outside the state) who are not involved in terror when they are under the effective control of the state;

(d.3) Minimum injury to the lives of the combatants of the state in the course of their combat operations;

(d.4) Minimum injury to the lives of other persons (outside the state) who are not involved in terror, when they are not under the effective control of the state;

(d.5) Minimum injury to the lives of other persons (outside the state) who are indirectly involved in terror acts or activities;

(d.6) Injury as required to the liberties or lives of other persons (outside the state) who are directly involved in terror acts or activities.

So, while Kasher and Yadlin plainly prioritize the lives of soldiers over those of civilians not under their effective control, the soldiers still have a duty to minimize harm to them and their duty to protect the lives of civilians that are under their effective control comes before their duty to protect themselves. All of this is perfectly debatable but it’s a long way from the free fire zone for the state’s forces which Margalit and Walzer accuse them of advocating.

4.

Margalit and Walzer are really getting into their stride now…

How do Kasher and Yadlin blur the distinction between combatants and noncombatants? By enabling “our” combatants to jump the queue for their own safety-so that their safety comes before the safety of civilians (whoever they are). For Kasher and Yadlin, there no longer is a categorical distinction between combatants and noncombatants. But the distinction should be categorical, since its whole point is to limit wars to those-only those-who have the capacity to injure (or who provide the means to injure).

See above; Kasher and Yadlin don’t say that the safety of “our” soldiers comes before the safety of civilians whoever they are and they maintain a clear distinction between combatants and civilians or “persons who are not involved in terror”, as they call them.

5.

Margalit and Walzer conclude their core argument with a thought experiment revolving around a hypothetical Hezbollah capture of a kibbutz in northern Israel.

Now consider four possible scenarios:

1. Hezbollah captured Manara and held all its members, Israeli citizens, as hostages. Hezbollah combatants mingle with the kibbutz members so as to be shielded by them from any counterattack.

2. Hezbollah captured only the outskirts of Manara, and a group of pro-Israeli, noncombatant volunteers from outside Israel-not Israeli citizens-who worked in Ma-nara and lived near the border were seized and used as human shields.

3. Instead of well-wishing volunteers as in scenario 2, we now have a group of protesters from abroad, who traveled to the northern border of Israel to raise their voices against Israel’s policy toward Lebanon. As it happened, Hezbollah did not pay much attention to their protest, but seized and used them as its human shields.

4. Before Hezbollah captured Manara, the kibbutz was evacuated, and now Hezbollah brings in civilian villagers from South Lebanon, in order to claim that the kibbutz land belongs to them, but also to use them as human shields.

In all four cases, Israel is about to launch a military operation to recapture Manara. Note that Hezbollah has effective control of the kibbutz and controls the fate of the different noncombatants held there. 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.” Whatever Israel deems acceptable as “collateral damage” when its own captured citizens are at risk-that should be the moral limit in the other cases too. If, as an Israeli, you think that a military operation will cause excessive harm to Israeli civilians, you should have equal concern for the excessive harm done to other civilians, whether they are welcome guests, unwelcome guests, or enemy noncombatants. The rules of engagement for Israeli soldiers are the same in all the cases, no matter how they feel toward the different groups. And if they observe those rules, and take the morally necessary risks, responsibility for the deaths of Hezbollah’s human shields-in all the cases-falls only on Hezbollah.

The force of this example seems to me to rest on an assumption that I will summarize as follows: “While Israel would be happy to mow down innocent Arabs it would be much more reluctant to place the lives of its own civilians at risk and would, therefore, find its scope for military operations much reduced if it placed the same value on Arab lives as it does on Jewish ones.” However, a brief consideration of Israel’s history shows this assumption to be, at best, only partially true. Israel, just like every other country, values its own more than foreigners. However, it has repeatedly shown itself willing to place its own civilians at risk through its own actions in order to protect them from greater risks imposed on them by their enemies. Sometimes this has worked out well and sometimes it hasn’t; think about Ma’alot and Entebbe. It’s not as if the only dangers to which the kibbutzniks would be exposed to in this situation would be those posed by Israeli military operations.

All of this points us to a further weakness in Margalit and Walzer’s overall argument. They assume that, in any given situation relevant to these questions, it is only action by state forces to protect themselves from terrorists - when such action prioritizes the lives of their members over those of civilians not under their effective control - which places the lives of those civilians in danger. No consideration is given to the dangers to which civilians are exposed by being ruled by such organizations, either at the micro level; the terrorist leader spared because killing him would have meant killing his family too goes on to liquidate droves of supposed traitors among his own people, or the macro one; large populations denied the most basic human rights and living at the whim of despots and religious whack jobs.