Elihu D. Stone

Eliminating The Middleman – The Re-establishment of Responsibility for Civilian Casualties in Gaza

Over half a century ago Golda Meir predicted “Peace will come when the Arabs love their children more than they hate us.” (Statement to the National Press Club in Washington, D.C., 1957) She also declared “When peace comes we will perhaps in time be able to forgive the Arabs for killing our sons, but it will be harder for us to forgive them for having forced us to kill their sons.” (Statement at a Press Conference in London, 1969). In combination, these statements bracket the intolerable situation in Gaza where, in flagrant and undeniable violation of International Humanitarian Law  – which prohibits direct and indiscriminate attacks on civilians –  Hamas and other Palestinian militants (read:”Jihadis”) have been rocketing Israeli civilian population centers for years.

The International Community’s enabling of such conduct by alternatively justifying it as “resistance” or condemning it in word only, has made it increasingly difficult for Israel to defend itself against the attacks of Jihadis originating from Gaza, in particular. Despite Israel’s removal of every Jew from Gaza in 2005, and the fact that Gaza shares a border with Egypt, Israel is still cast as sole “occupying power” oppressing Gaza. The Palestinian-Arabs have diverted vast funding and resources earmarked for humanitarian purposes in Gaza to weaponize the civilian substructure. Private homes, hospitals, mosques and schools have been converted into weapons depots, command centers, rocket launch sites and booby traps. Israel has been without any choice but to deploy various military options to stem the rocket fire aimed at its citizenry. The deployment of these options – despite Israel’s best efforts to avoid civilian casualties among the Palestinian-Arab population has resulted in the death of innocents. The collateral damage to Palestinian-Arab civilians, encouraged by the Palestinian-Arabs’ cynical use of them as human shields has been exploited by those who would shift all moral responsibility to Israel for a deadly situation not of its making.

A History of the Problem

The situation is not new; it has gone through at least three cycles during the last six years alone. During the early winter of 2008–2009, Israel conducted Operation Cast Lead in the Gaza Strip for three weeks, to stop rocket fire into Israel and arms import into the Gaza strip. Israeli forces attacked Palestinian-Arab military targets including weapons caches and rocket firing teams, police stations, as well as political and administrative facilities – all of had been involved in hostile activity against Israel. As rocket fire increased from the Palestinian-Arab populated areas, the Israeli operation lead up to a ground invasion, coordinated with air, naval, artillery, intelligence, and combat engineering units. Hamas intensified its rocket and mortar attacks against civilian targets in southern Israel, reaching the major cities of Beersheba and Ashdod. Israel ultimately decided against striking deeper within Gaza amid concerns of higher casualties on both sides and increasing international criticism. This operation ended on January 18, 2009 when Israel declared a unilateral ceasefire.

Following Cast Lead, Javier Solana, head of the EU’s Common Foreign and Security Policy acknowledged that “in yesterday’s world there were wars of armies against armies and there were laws and conventions that dealt with the conduct of such wars. It is necessary to invest thought to the changing situation in which there is asymmetry between fighting parties, a situation in which it is difficult to implement the classic/old rules of war.” But he added that “until new rules are in place we must obey the old ones.”  (Solana to Haaretz: New rules of war needed for age of terror, Haaretz, October 23, 2009.) The urgency of developing new rules became screechingly obvious by November of 2012, after Hamas and other Palestinian groups in Gaza launched over 100 rockets at civilian population centers in southern Israel over a 24-hour period, attacked an Israeli military patrol jeep within Israeli borders with two Kornet missiles and triggered a tunnel explosion near Israeli soldiers on the Israeli side of the fence. In response, the IDF launched Operation Pillar of Cloud – striking targets in the Gaza Strip including rocket launching pads, weapons depots, individual militants, numerous government buildings, and weapons caches located in dozens of houses and apartment blocks.  During the Israeli operation, the Palestinian-Arab militants further intensified their rocket attacks on Israel, firing over 1,456 Iranian-made Fajr-5 missiles, Russian Grad rockets, Qassams and mortars into Israeli civilian population centers. Israel, again, was on the verge of launching a ground invasion as the Palestinians-Arabs in Gaza threatened to unleash suicide bombers on Israeli buses, cafes and restaurants.

A cease fire arrangement was reached on November 22, 2012. That cease fire, too, did not stop the launching of rockets from Gaza toward Israel. Indeed, during the first 24 hours of the cease-fire, Hamas loosed 20 rockets at Israel. (Israel did not respond militarily.) Since the end of that Operation Pillar of Cloud the steady “drip” of rocket and mortar fire continued from Gaza and kept communities in southern Israel on edge. Moreover, since the end of that operation and despite Palestinian-Arab claims of an Israeli “siege” on Gaza, Hamas and other or Jihadi groups have markedly increased the size and strength of their rocket arsenals. Imports continue to arrive.

Occasional spikes in the rocket fire – such as in March 2014, which saw over 80 rockets and mortar shells launched at Israeli civilians – made life in southern Israel still more precarious. During June of 2014 tensions between Gaza and Israel reached a new high and Hamas began sending scores of rockets into Israel. The rockets caused few casualties in Israel, owing to the success of Israel’s Iron Dome interception system and Israel’s communities’ access to bomb shelters. However, Israel understood that Hamas’ rocket fire aimed at her civilian population centers presented an intolerable situation that demanded an active response. In July, the IDF commenced Operation Protective Edge, aimed at putting a decisive end to the rocket fire, to restore security to the residents of southern Israel and degrade Hamas’ ability to engage in other terrorist activity against Israeli civilians.

It has become increasingly apparent that the current situation remains wholly untenable. Hamas, as a matter of religious principle, is sworn to Israel’s destruction and the murder of Jews. The Hamas Charter makes clear that it deems peaceful negotiation an absolute non-starter.  The progress of ISIS in the Middle-East highlights for anyone the hazards and options present for any democratic regime confronted by Jihadi opponents while bound by the constraints and of principles of International Human Rights Law. International Humanitarian Law itself is not yet capable of providing workable guidelines for a democratic state that tries to comport with International Humanitarian Law while forced to confront a Jihadi presence sworn to the state’s destruction at all costs and any without genuine regard for human life on either side. For the Jihadis, human beings are a means, only – to be exploited toward the establishment of an Arab State to replace Israel and, ultimately, a world-wide caliphate.

Israel, with such elements on its doorstep, continues to face a dilemma: On one hand, Israel deems itself bound by the principles of International Humanitarian Law. However, the  law in its current state is inadequate to address the situation Israel now faces, head-on. The international community insists upon Israel’s conformance to the norms of International Humanitarian Law – but takes little notice that Hamas flouts that law at every turn. On the other hand, it is clear that Israel cannot wait for International Humanitarian Law, or international enforcement mechanisms  to catch up with the realities of today so that she can employ the measures necessary to effectively confront the Jihadi threat. It is imperative that within, the constraints of current International Humanitarian Law, Israel take a decisive initiative to both stop the rocket fire threatening her civilians from Gaza and to return responsibility and moral accountability for Hamas’ serial violations of International Humanitarian Law squarely back where it belongs – into the hands of the Palestinian-Arabs – The Gazans who elevated Hamas to power and the Palestinian Authority which has joined hands with Hamas to form a unity government. Can this

Theoretical Modeling of The Problem and The Basis For A Solution 

Imagine, if you will, that you are engaged in an intractable border dispute with a hostile neighbor who entertains a markedly different value system then yours. Aside from the dispute over the borders, there is also no agreement on the method of dispute resolution. There is a choice of dueling with lethal weapons or negotiation. Your neighbor insists on dueling with lethal weapons and makes clear that he means to involve both of your respective families in the conflict. You prefer negotiation – or, at worst, a duel that does not involve non-combatants. You have no desire to hurt your neighbor’s family (or your neighbor, for that matter) and you certainly want no harm to come to yourself and your own family. However, your neighbor absolutely refuses to negotiate. He declares that he means to throw you out of your home – and do you mortal harm. He proclaims that his struggle with you is eternal and Divinely sanctioned. Apparently, dueling is your only option to end the dispute. One of you gets to pick the method of dueling and the rules – the other gets to pick the particular weapons used. Your neighbor insists upon a modified version of Russian Roulette, with a somewhat unreliable six shooter, as the method of resolving a border dispute. The modification is that the shooter (your neighbor) gets to aim at your family rather than his own head. He also gets to choose the ordinance, load whatever pistol is used – and take the first shot. Since your opponent picked the dueling method (modified Russian Roulette), you get to pick the actual weapon used.  To discourage his insistence on modified Russian Roulette – and move things toward negotiation, you agree to play – but on condition that the weapon used is a specially designed double-directional pistol (akin to a double bladed axe, mutatis mutandis) which has one barrel facing the target and one facing the shooter and/or his family. The pistol must be loaded so that identical rounds are fired by each barrel. A pull of the trigger discharges ordinance from both barrels, forward and rear facing, fairly simultaneously. Essentially, the shooter cannot fire at his opponent’s family without shooting at himself and his own family simultaneously. Now, assuming that your opponent is rational (even if his value system is markedly different than your own) once he sees your choice of weapons, he should suddenly have a different view of the game he has chosen.  

Moral Responsibility and Freedom of Choice – Ancient and Modern Views

Recall the story of Cain and Abel – two brothers are locked in mortal combat because one feels slighted (The Midrashic literature centers the linchpin of the conflict around various core issues – but they are not crucial for this discussion). The first recorded instance of fratricide transpires and Cain is confronted for murdering his brother by the Creator of the Universe. Cain’s response is stunning. “Am I my brother’s keeper?” He asks. This is not a simple evasion. It is a challenge that Cain sets before God. It is finely pointed… and very relevant to our situation.  Cain is asking the following: “Am I my brother’s keeper? You are the Almighty, the Creator of all that is and will be- You set up this system, you control all outcomes. I never even knew I could kill anyone (because this is [theoretically, at least] the first instance ever of one human killing another – How could I even know this would be the result? You are my brother’s keeper, not I and therefore, You, God, are the One responsible for his death. I – Your creation- bear no responsibility for this outcome.” Quite a potent argument. – Or, so it would seem. This is the ultimate argument made, if not explicitly articulated, by the Palestinian-Arabs and those who defend their flouting of International Humanitarian Law.  “Israel controls all – we have no way to defend against ourselves without using means that the Western world would call odious (leaving aside the fact that the Palestinian-Arabs have elevated these means to an ideal- rather than just a necessary evil-) Therefore we have no choice but to use these means as we exercise in our God-given right to resist the Occupier. We therefore we have no moral responsibility whatsoever for the evil transpiring here…Israel is completely responsible for all the violence – even that which we initiate.” At this juncture, large sections of the International Community seem to have bought into this argument – and perhaps accepted it as axiomatic. However, the argument is ultimately specious in the same way that Cain’s argument was specious. Human beings are accorded free will. They may find themselves more or less physically constrained by their circumstances, but their moral choices ultimately remain their own. This point is illustrated, somewhat differently, by another story: A judge is entertaining arguments from a criminal defendant accused of having murdered his sibling. The defendant claims “Your Honor, I cannot possibly be held accountable for my actions, I am a strict materialist and as any scientist knows my actions were completely determined from the time of my conception (if not earlier) my brain and body are nothing more than a conglomeration of chemical and electrical-magnetic processes that mandate my every action. I had no choice but to do what I did – and therefore I cannot be held morally or legally responsible.” The Judge nods and pronounces judgment -”I understand you completely and agree totally with your assessment – I similarly have no choice – And I sentence you to prison for the remainder of your life.” In this story, the perpetrator tries to avoid moral responsibility with an argument that assumes, or attempts to establish, an implicit asymmetry of moral responsibility. The wise Judge reintroduces fairness. First she recognizes the unspoken asymmetry which the perpetrator would seek to exploit. Then she re-establishes and articulates the proper moral symmetry which defines the true context for understanding the entire situation.  

A Proposal To Reintroduce Identity of Risk Into Asymmetric War

In grade school we learn certain stratagems designed to guarantee identity of interest – and hence fairness, by encouraging -sometimes through the apparent use of coercion- responsible choice. For instance, when we divide a cookie between two parties… One party gets to cut the cookie – The other party gets choose to choose which half of the divided cookie they want. Here, we ensure fairness- and fair behavior by creating an identity of risk. These mechanisms work in business, too. I propose that we try to apply this in the military context in order to place the responsibility for Palestinian-Arabs back compliance with basic norms of International Law back in their own hands. Until now, Israel has dealt with the phenomenon of rockets being fired into their civilian areas via a series of narrow, discrete responses. Palestinian-Arab civilians are also placed at risk – largely due to the Palestinian-Arabs’ cynically calculated use of human shields. Israel is routinely accused of collective punishment, tit-for-tat retaliation and International Law is shown time and time again to be inadequate to the categories formed by the realities of asymmetric warfare thrust upon Israel. This is because the basic assumptions of International Humanitarian Law involve presume basic symmetry between warring opponents and are based on a framework of attack and reprisal. Because this is so, it is easy for any party without scruples to “game” the system. The International Humanitarian Law rules of proportionality measure the proportionality of anticipated collateral damage to “military necessity”. Attacking missile launch crews which target civilians is allowed under the rule of distinction, but whether such a counter-attack is proportionate depends on the circumstances. If the launch crew situates itself in the middle of a hospital, the counter-strike may violate the rules of proportionality, notwithstanding the fact that the launch crew is a legitimate target. In any event, if Israel were to strike a hospital or school, the potential legality of the strike will be practically irrelevant, because pictures of bloodied children will outweigh any legal considerations in the all important Court of public opinion. Enough is enough. A strategy that moves away from ‘punishment’, retaliation, etc. (which involve discretion, volition, etc. – and hence a volleying of responsibility) and a transit to purely mechanical consequence generated only by the violations of International Law committed by Palestinians themselves is in order. The proposal I am trying to formulate, does not involve Israel’s employment of force -retaliatory or otherwise-. There is no “tit-for-tat” in the way this phrase is commonly used. Israel creates and calibrates a system which functions as the duo-directional pistol mentioned above , but once in place the Palestinians are in complete, conscious, and informed control of its employment – and thus morally responsible for its consequences. This is not a booby trap. It is very publicly advertised. This example does not represent completely radical thinking.  It is reminiscent of M.A.D. – but in  a much purer form. This purity is essential as will be explained below. The salient questions to be considered are: 1) whether the construction of the theoretical weapon and its introduction into the dueling scenario above  is moral; and 2) whether the weapon is likely to serve its desired purpose. It is acknowledged from the outset that the best system (in terms of morality and current International Humanitarian Law) would be a barrier that actually reflects the Palestinian force directly and precisely back toward the Palestinian-Arab rocket crews and shields all others from harm  – I do not believe that this is currently technically feasible – However, a system could be designed that automatically targeted various terrorist targets (Hamas headquarters, weapons depots, bomb factories, etc). What is intended in all events is a system that makes the aggressor the very wielder of a rebound strike and is solely triggered by a clear violation of International Humanitarian Law (such as a rocket strike aimed into a civilian area) is not contemplated by current International Humanitarian Law because it puts the trigger of the weapon into the hands of the enemy (which also makes them responsible for it). An alternative that could be absolutely justified on moral grounds, but might play badly from a public relations perspective would be a mechanism not guaranteed to hit any particular target. That alternative would have a Palestinian-Arab strike directed toward Israeli civilians trigger the launch of precisely the same kind of “primitive” “home-made” “unguided” weapon the Palestinians (purport to) use- so that it exactly mirrors their (purported) behavior. Public debate of the less-than-ideal alternatives, such as this, would at least serve to showcase the shortcomings in current International Humanitarian Law. Another alternative that might be more justifiable on moral and legal grounds  -and leave less room for bad press-  might involve non-lethal ordinance.  

Is the Use of Automatically Triggered Weapons Ever Moral?

Any weapons system that is triggered automatically can be held to violate the principle that the proper use of kinetic force must be (a) deliberate and (b) tailored to a proximate objective for which that level and type of force are appropriate and effective.  Booby traps, in particular, are often (but not universally) prohibited by treaty law and customary law for violating principles of (1) Distinction Between Civilians and Combatants and (2) Proportionality in Attack. Thus, for example, the laying mines in international waters is considered wrong, because sea mines rob the use of force of the requisite deliberation and tailoring.  Those with strong political animus against anti-personnel mines makes a similar case concerning the irresponsible lethality of such mines left strewn around once-war-torn nations. However, all models of the mechanism proposed bear only a superficial similarity to mines. Yes, both are triggered automatically; however, the proposed mechanism differs fundamentally from mines, which are triggered by any disturbance, constitute a threat to anyone without distinction (friend or foe) and remain a potentially lethal menace long after the cessation of hostilities. The proposed mechanism  is triggered only by and conterminously with a launch of rockets from Palestinian-Arab held territory into Israeli civilian areas, which itself constitutes a clear violation of International Law. Some would argue that, from a legal perspective, the designer and builder of such a proposed system would always remain the ultimate cause, if not the proximate cause, of any damage caused by it. However, this argument would be similar to Cain’s when he blamed the Creator of the Universe for the consequences of actions which he (Cain) freely chose. Indeed, the realization that the person who knowingly and intentionally triggers the proposed mechanism through his freely volitional act is the proximate cause of any injury caused by it actually support the proposal rather than being grounds for its dismissal. (Per, at least, American Law – both civil and criminal), proximate cause is actually determinative of legal liability. ”But-for” causation (what some call ‘ultimate causation’) is a necessary, but not sufficient, condition for (legal) causation and liability. The literature on proximate causation and its treatment in the national context is extensive; how international humanitarian law parses the issue of proximate causation- either regarding tort or criminal liability –  and, of course –  the issues of moral (versus legal) responsibility/causation and public perception might still require tweaking of the proposal.

Will The Proposal Serve Its Intended Purpose?  

De facto, Palestinian-Arab public has reacted negatively to “work accidents” that result in the death of non-combatants.  Do they blame Israel? Yes- but they also harbor increasing resentment toward those storing or building the bombs in civilian areas. And they should. What about the world at-large? Does the international community condemn Israel for Palestinian “work accidents”? Perhaps – but certainly not in the same way that they condemn Israel for collateral damage caused by Israeli strikes… The key to responsibility is intentionality and choice. Now, I grant that the world -and even Israel’s High Court of Justice- does not always get this right – but I think that it is worth exploring these issues and bringing them to the foreground of the debate. The airing of this proposal should at least do that. Again, on a practical level, if the Jihadis (who are often deemed heroes/martyrs by their supporters) are also resented when they martyr unintentionally innocents who did not “volunteer” for the job. One would think the Jihadis would be doubly resented if it was truly clear that their insistence on firing rockets on Israeli civilians served almost exclusively to terrorize the Jihadis’ own constituency in a truly direct and automatic way. If the Jihadis and their constituency knew with absolute certainty that the rocket crews were mechanically triggering a launch on their own whenever they fired on an Israeli civilian target (an intentional act)  I think they would have to change tactics or risk ever-growing resentment among their constituency. Eventually there might be enough internal Palestinian-Arab pressure to stop the rockets. I am assuming Palestinian-Arabs will only continue to hurt themselves if they think they can hurt Jews much more in the process.

In Conclusion

It is time to consider a dramatic and somewhat counter-intuitive move, that re-calibrates the entire playing field – but without disturbing its essential ecology. My proposal does not alter the ecology of the playing field by upping the ante- it merely makes the Palestinians mechanically subject to their very own behavior, by effectively reflecting it back to them in real time. It is an attempt to make plain just how their precise behavior affects the region. The moral advantage of this reflective methodology is that the Palestinians are in absolute control of the mirror – there is no one else to blame for the consequences of their actions. The Palestinian- Arabs themselves would be the ones pulling the trigger – or preferably choosing not to.  We simply reveal that choice. They are wholly empowered to do as they please. The launch automatically and immediately triggered by the Palestinian-Arab initiative is neither tit-for tat nor retaliation – it simply is a mechanical result, an unmediated consequence caused wholly by the Palestinian-Arab rocket crews themselves. There is no discretion on our part. From a moral standpoint, I am trying to construct a scenario which physically shifts the mechanical and ethical responsibility for all damage back to the malicious actor- the redirection of force, without interposition of our will, but with adequate forewarning to put the responsibility for any damage right back where it belongs. The success of the current Iron Dome technology in determining the trajectory of Palestinian-Arab launches creates the possibility for this proposal. The disadvantage of relying on the Iron Dome system alone (which, admittedly, does not entail the moral and legal difficulties of the present proposal) is that Iron Dome actually serves to encourage the Palestinian-Arab violation of International Humanitarian Law. Such violations by the Palestinian-Arabs remain fairly cost-less to them and still effectively terrorize the Jewish civilians. In addition, the monetary cost to Israel of Iron Dome – which has no real deterrent effect on the Palestinian-Arab conduct – is monumental. The all-important key to the proposed strategy would be the lead-up to employment of the system. This aspect of the proposal is an absolute moral and legal necessity. Just the announcement that we are contemplating putting such as system into place – and the rationale behind it- might be enough to generate constructive consequences if it is debated in the proper forums. What public debate of this proposal is likely to do is put front and center the fact that International Humanitarian Law as embodied in current conventions is clumsy and practically inadequate to deal with war as it is being waged by non-state actors targeting civilian populations as a matter of course. I believe the debate generated will be highly significant in its own right. It should be noted that this proposal is not exclusive. It need not replace, and can be used in conjunction, with other traditional military approaches – I am just trying to develop conceptually something that will take us beyond what we have done so far – Because, without this I don’t see much alternative to Defensive Edge II – and the continued blame of those who are determined to make Israel responsible for this terrible situation. Under current circumstances, it appears that soon Israel will have no choice but to undertake much more extensive action than she did even in Operation Defensive Edge. It should be noted that with the adoption of this proposal, missions to the eliminate rocket teams prior to launch are transformed into potential protectors of innocent Palestinian-Arab lives, that are truly endangered by the rocket launchers’ violation of International Humanitarian Law. Israel’s use of force must be aligned with and driven by a national strategy, rather than merely being an incessant series of narrow responses.  Many have expressed hope for resolution of the current dichotomy that appears to effectively preclude Israel’s use of any force if she wishes to be treated fairly by opinion makers and left-leaning politicians.  Under current conditions, Israel is left with a Hobson’s choice between her security and being treated “fairly” by international activists and Arab/Islamic organizations. This can be morally countered by offering the Palestinian-Arabs- and Hamas, in particular, with their own choice between obeying, at least in part, International Humanitarian Law and driving a wedge between themselves and all who support negotiation over incessant dueling. I recognize that an automatic response system might not would spare Israel from the usual finger-wagging and condemnations. Indeed, Israel has performed far more limited, and far more clearly lawful, actions in the past and been condemned. Perhaps there is no conceivable situation in which Israel’s shooting will not be followed by immediate condemnation. However, the exploration of new paradigms which remove Israel as the unwilling middleman between the Palestinian-Arabs and their own self-destructive behavior is an ethical imperative. The proposals Israel must rely on to solve the current situation must not place her fundamental security in the hands of others.  Neither international guarantees nor enforcement have ever proved to be of lasting use, here. The past involvement of UN peacekeepers in this conflict – whether in Sinai in 1956 or in Lebanon more recently has been worse than ineffective. The false appearance of a solution with the imprimatur of the international community is actually worse that having no solution and being honest about it. The Palestinian-Arabs have effectively been enabled to refuse all accountability for their own decisions and actions, yet they and their enablers still demand the identical respect and integrity owed only to those who do assume such responsibility. In other contexts, such carefully cultivated churlishness is merely a nuisance. In the context of the Arab-Israeli conflict, this behavior has proved deadly and apparently incorrigible. It must stop, if there is to ever be a hope for lasting, durable peace in this region

About the Author
Elihu D Stone practiced law in Boston, Massachusetts and is currently a member of the Israeli Bar; He is involved in the Al Durah Project, an initiative dedicated to understanding and countering the dilemmas and vulnerabilities that face democratic cultures in this age of aggressive asymmetric and cognitive warfare. Elihu has been privileged to serve in leadership roles for a variety of Jewish communal organizations and is an alumnus of the Wexner Heritage Foundation. The writer currently maintains a U.S. life insurance clientele and lives in Efrat, Israel
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