A time for war and a time for peace

By Eli Bernstein

It was the wisest of men who said there comes “a time for war, and a time
for peace”. The doctrine of a just war was later formulated by Aristotle,
Cicero and Augustine and finally incorporated in Article 51 of the UN
Charter which states that “nothing in the present Charter shall impair the
inherent right of individual or collective self-defence...”

Much has been said about the current military operation Israel is
conducting against Hamas and doubt has been raised over its moral and
legal legitimacy. So, is the war on Hamas immoral? Is any war indeed just?

To answer these questions, one needs to examine the general principles of

just war theory including the criteria for justice preceding the war, justice
in war, and post-war justice.

Jus ad bellum (justice preceding war)

A nation must satisfy the requirements of Jus ad bellum to have a moral

and legal right to fight a war. This commences with the principle of Just
cause, being a wrong received through aggression. Ever since Israel
handed control of Gaza to the Palestinians, more than 7,200 rockets have
been fired into Israeli territory in breach of UN Special Resolution 1850.
The risk to life to the nearly one million civilians within firing range is
clearly just cause. As Nimr Hammad, adviser to Palestinian President Abu
Mazan, stated:

The one responsible for the massacres is Hamas, and not the
Zionist entity, which in its own view reacted to the firing of
Palestinian missiles. Hamas needs to stop treating the blood
of Palestinians lightly.
(Al-Akhbar (Lebanon), December 28, 2008)

Another requirement is that the war be fought for the sake of the just
cause (Right intention). Israel articulated its aim as preventing the rocket
fire into Israel. It has set out to ensure that Hamas has not the will, nor the
capability to repeat its crimes against humanity. Israel has no territorial
ambitions and as such clearly has the right intention. Israeli President and
Nobel Peace Prize Laureate Shimon Peres made it clear that Israel does
not “intend to occupy Gaza or crush Hamas but crush terror. Hamas needs
a real and serious lesson. They are now getting it” (Haaretz, January 4,
2009).

The requirement for legitimacy is clearly met by Israel but not by Hamas.
Only legitimate states have the right to wage war. Illegitimate states have
no right to govern or go to war. Israel, a democratic state with full UN
membership, has the right to wage war, provided it is just. Hamas, on the
other hand, does not. Hamas meets the definition of an illegitimate state
as it is not recognised as legitimate by its people or the world; since it
regularly violates the rights of other sovereign states; and since it violates
the human rights of its own citizens. Ever since Hamas seized control of
Gaza by force in June 2007, the world has rightly treated it as a pariah
state. It has lost internal support as well with a recent poll (An-Najah
National University, Sepetmber 2008) suggesting only 14% of Palestinians
support Hamas. The regime is oppressive to its citizens and routinely uses
women and children as human shields. It recently passed legislation which
ushered in whipping, dismembering and execution as standard punitive
measures.

The current military action comes at the end of a six month truce which
was broken by Hamas.
Israel has exhausted all other avenues meeting the criterion of Last resort:
Hamas for its part signalled it has no interest in peace talks. Indeed, its
charter states (Article 13) that “there is no solution for the Palestinian
question except through Jihad. Initiatives, proposals and international
conferences are all a waste of time and vain endeavour”. With no partner
to engage with diplomatically and with no truce in place, Israel had no
choice but to protect its citizens by force. Israeli PM Ehud Olmert and his
centre-left government approved the current operation stating:

On this morning I can look each and every one of you in the
eye and say that the government did everything possible
before it decided on the ground operation. It was unavoidable.
(Jerusalem Post, January 4, 2009)

The defending state must foresee a Probability of success in its military

operation. Israel therefore has a legal and moral duty to use whatever
legal means available to it to ensure its operation achieves the aim it set
out to achieve, namely the weakening of Hamas’ capability and
willingness to launch another attack against Israel. This justifies the use of
air force, armour, infantry and any other legal means used by the Israeli
military.

Balancing the need for operational success is the notion of Proportionality

requiring the universal good arising from military action outweigh the
universal evil. The fact that Israeli losses are less than those inevitably
inflicted on the Palestinian side has been wrongly interpreted as implying
a disproportionate response. The doctrine of proportionality requires a
long term view that accounts for the geopolitical ramifications of the
alternative, in this case being the risk to lives of a million Israelis coupled
with the geopolitical risk that a strategic victory to Hamas (and its sponsor
Iran) would pose to the Middle East. Harvard law professor Allan
Dershowitz addresses this issue:

The claim that Israel has violated the principle of

proportionality -- by killing more Hamas terrorists than the
number of Israeli civilians killed by Hamas rockets -- is absurd.
 First, there is no legal equivalence between the deliberate
killing of innocent civilians and the deliberate killings of
Hamas combatants. Under the laws of war, any number of
combatants can be killed to prevent the killing of even one
innocent civilian. Second, proportionality is not measured by
the number of civilians actually killed, but rather by the risk
posed. This is illustrated by what happened on Tuesday, when
a Hamas rocket hit a kindergarten in Beer Sheva, though no
students were there at the time. Under international law,
Israel is not required to allow Hamas to play Russian roulette
with its children's lives.
(Wall Street Journal, January 1 2009)

Jus in Bello (justice in war)

Once a nation secures the moral and legal right to fight a war, it must
then follow just conduct in war. Firstly, it must discriminate in its targeting
between combatants and non-combatants. Israel’s air strikes over the
past week have shown accuracy unseen to date in modern warfare. Israel
has the disadvantage of having its enemy fortified in one of the world’s
most densely populated areas and having no qualms about the use of
human shields. Despite this, about one third of casualties have been
civilian, far lower than the major conflicts of the past century.

The 1,000 sorties flown to date have all been closely coordinated with on
the ground intelligence (primarily gathered from Palestinian sources) and
has kept collateral damage (admittedly, a crude term) to record lows.
While each and every of these casualties is a life that should be mourned,
Israel cannot be accused of indiscriminate killing. Indeed, the standards
applied by the Israeli Defence Forces (IDF) are far higher than those
applied in urban conflict zones in Afghanistan and Iraq. Which other air
force routinely phones the inhabitants of a target it is about to bomb to
ensure that they get out of harm’s way?!

Another requirement is that the use of force must be proportional to the

desired outcome. Israel’s has used a fraction of its military might as it has
no territorial ambitions over Gaza, nor is it attempting to force a regime
change (despite its ability to do so under international law). Israel is trying
to gain control of sites that have been used for launching attacks into
Israel, destroy existing weapons stockpiles, and eliminate the weapons
smuggling tunnels and key terrorist operatives that are vital to ongoing
operation. Israel’s use of ground and air forces is consistent with achieving
these objectives.

Israel fulfils the other requirements of Jus in Bello by refraining from the
use of means that are evil in themselves (mala in se); by refraining from
the use of prohibited weapons (Incidentally, the use of chemical
smokescreens is permissible under international law); by refraining from
deliberate targeted reprisals against civilians; and by granting
surrendering troops benevolent treatment.

Jus post Bellum (justice post war)

An ethical exit strategy must be in place with a peace settlement that

ensures the violated rights are enforced (Rights vindication). For the war
not to be fought in vein, Israel must ensure the original just cause is
rectified through a sustainable cessation of violence. Israel must therefore
not agree to the unilateral ceasefire, proposed by the Europeans. US Vice
President Dick Cheney articulated this position:

If there’s to be a ceasefire, you can’t simply go back to the

status quo anti, what it was a few weeks ago, where you had
a ceasefire recognized by one side but not adhered to by the
other. It’s got to be a sustainable, durable proposition, and
Hamas has to stop rocketing Israel. And I don’t think you can
have a viable ceasefire until they are prepared to do that.
(CBS News, January 4 2009)

Another principle requires the terms of settlement to be proportional and

publicity proclaimed. From the outset, Israel’s aim in this operation has
been the reinstatement of an effective ceasefire. A proportional ceasefire
is likely to include the following elements: a cessation of rocket fire on
Israel; a withdrawal of Israeli forces from Gaza; the lifting of the blockade
on Gaza subject to assurances on cross-border weapons smuggling; and
the release of all POWs (including Israeli Cpl Gilad Shalit).

Other principles of just peace settlement include that civilians are immune
from punitive measures applied to the political and military leadership;
allowance for the aggrieved party to receive compensation for the cost of
war; and for the implementation of post-war reform of the aggressor’s
regime. Israel is likely to waive these rights at present.

A Just War

The body of legal and moral theory on just war conclusively shows that
Israel is acting well within its rights. Indeed, the moral case for this
operation is indeed stronger than the case for the war in Afghanistan, a
war universally accepted as just. Israel’s operation is in response to a
clear ongoing threat by an aggressor (compared to a single act of
aggression by its proxy); it followed a six month attempt at a truce
(compared to three weeks of military preparations); it has the modest aim
of cessation of violence (rather than regime change); and has significantly
more discriminate targeting and lower collateral damage that the war in
Afghanistan.

While rogue regimes use war as a mechanism to maintain their

illegitimate hold on power, the inherent nature of democracies prevents
unnecessary war and penalises warmongers. Democracies are inherently
prone to peace, which is why “democracies don’t attack each other” (US
President Bill Clinton, 1994 State of the Union address). Israel as a
democracy surrounded by rogue regimes has to balance its inherent
abhorrence of violence with the violent zeal of the rogue regimes it is
surrounded by. Israel cannot be expected to act like Sweden when its
neighbours are neither Norway nor Finland.

As nations around the world increasingly confront the menace of terrorism

and rogue regimes, the Western world will have to learn the unpleasant
truth that there is a time for peace and a time for war. Bill Clinton’s
pacifist stance on Rwanda caused more deaths than any act of war
America has ever engaged in. The pacifist does not necessarily have the
shorter sword than the warrior.

It is time the world stops the double speak of moral equivalence. Every
Palestinian innocent life lost is a tragic undesired outcome for the Israeli
side, whereas the loss of Israeli civilian life is the aim rather than an
incidental outcome for Hamas. In the conflict between Israel and Hamas,
there simply is no moral equivalence. It is time the world recognised this
truth and spoke in one voice.

Another man asked: "What kind of jihad is better?"

The Prophet replied, upon him peace: "A word of truth spoken in
front of an oppressive ruler."
(Sunan Al-Nasa'i, Number 4209)