By Alan Dershowitz, Professor at the Harvard Law School.
July 20, 2006.
There is no democracy in the world that should tolerate missiles being fired at
its cities without taking every reasonable step to stop the attacks. The big
question raised by Israel’s military actions in Lebanon is what is “reasonable.”
The answer, according to the laws of war, is that it is reasonable to
attack military targets, so long as every effort is made to reduce civilian
casualties. If the objectives cannot be achieved without some civilian
casualties, these must be “proportional” to the civilian casualties that would be
prevented by the military action.
This is all well and good for democratic nations that deliberately locate their
military bases away from civilian population centers. Israel has its air force,
nuclear facilities and large army bases in locations as remote as anything can be
in that country. It is possible for an enemy to attack Israeli military targets
without inflicting “collateral damage” on its civilian population.
Hezbollah and Hamas, by contrast, deliberately operate military wings out of
densely populated areas. They launch antipersonnel missiles with ball-bearing
shrapnel, designed by Syria and Iran to maximize civilian casualties, and then
hide from retaliation by living among civilians.
If Israel decides not to go after them for fear of harming civilians, the terrorists
win by continuing to have free rein in attacking civilians with rockets. If Israel
does attack, and causes civilian casualties, the terrorists win a propaganda
victory: The international community pounces on Israel for its
“disproportionate” response.
This chorus of condemnation actually encourages the terrorists to
operate from civilian areas.
While Israel does everything reasonable to minimize civilian casualties – not
always with success – Hezbollah and Hamas want to maximize civilian
casualties on both sides. Islamic terrorists, a diplomat commented years ago,
“have mastered the harsh arithmetic of pain. … “Palestinian casualties play in
their favor and Israeli casualties play in their favor.”
These are groups that send children to die as suicide bombers, sometimes
without the child knowing that he is being sacrificed. Two years ago, an
11-year-old was paid to take a parcel through Israeli security. Unbeknownst to
him, it contained a bomb that was to be detonated remotely. (Fortunately the
plot was foiled.)
This misuse of civilians as shields and swords requires a reassessment of the
laws of war. The distinction between combatants and civilians – easy when
combatants were uniformed members of armies that fought on battlefields
distant from civilian centers – is more difficult in the present context.
Now, there is a continuum of “civilianality”: Near the most civilian end of
this continuum are the pure innocents – babies, hostages and others completely
uninvolved; at the more combatant end are civilians who willingly harbor
terrorists, provide material resources and serve as human shields; in the middle
are those who support the terrorists politically, or spiritually.
The laws of war and the rules of morality must adapt to these realities. An
analogy to domestic criminal law is instructive: A bank robber who takes a teller
hostage and fires at police from behind his human shield is guilty of murder if
they, in an effort to stop the robber from shooting, accidentally kill the hostage.
The same should be true of terrorists who use civilians as shields from
behind whom they fire their rockets. The terrorists must be held legally and
morally responsible for the deaths of the civilians, even if the direct physical
cause was an Israeli rocket aimed at those targeting Israeli citizens.
Israel must be allowed to finish the fight that Hamas and Hezbollah started,
even if that means civilian casualties in Gaza and Lebanon. A democracy is
entitled to prefer the lives of its own innocents over the lives of the civilians of
an aggressor, especially if the latter group contains many who are complicit in
terrorism.
Israel will – and should – take every precaution to minimize civilian
casualties on the other side. On July 16, Hasan Nasrallah, the head of
Hezbollah, announced there will be new “surprises,” and the Aska Martyrs
Brigade said that it had developed chemical and biological weapons that could
be added to its rockets. Should Israel not be allowed to pre-empt their use?
Israel left Lebanon in 2000 and Gaza in 2005. These are not “occupied”
territories. Yet they serve as launching pads for attacks on Israeli civilians.
Occupation does not cause terrorism, then, but terrorism seems to cause
occupation.
If Israel is not to reoccupy to prevent terrorism, the Lebanese
government and the Palestinian Authority must ensure that these regions cease
to be terrorist safe havens.
