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MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR Ramon Das The recent war between Israel and Hezbollah 1 raises many significant questions, several of which are related to the war's strategic implications. Why did the war start? What were the motives and objectives of the relevant parties? How did Israel and Hezbollah emerge from the conflict? Is either stronger or weaker than before? My concerns in this paper lie elsewhere, focusing upon fundamental questions of morality and justice raised by the recent war. Although I shall not ignore the sorts of strategic questions mentioned, I am interested in them primarily insofar as they bear on central moral issues surrounding the conflict. In particular, I shall be assessing what I take to be the mainstream moral account of the recent war. Although I shall provide some evidence to suggest that it is, indeed, the mainstream account, I am not terribly concerned with whether I am right on this score. My main purpose is to use the account as a foil for the position I wish to defend. What is the mainstream moral account of the war? 2 I believe it comprises two themes, corresponding roughly to the most important elements of the two traditional components of just war theory: jus ad bellum (the justness of going to war) and jus in bello (the justness of the conduct of the war). The

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Although the war is usually characterised as one involving Israel and Lebanon, there are good reasons for resisting this characterisation. Most obviously, Hezbollah did all of the fighting on the Lebanese side – the Lebanese army stayed out of the conflict entirely. Unfortunately, much of the Lebanese population was effectively a target, and thus an innocent third party to the war.

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I refer here principally to the mainstream American account, although to a lesser degree the description applies to much of the British media as well. In other parts of the world, matters are rather different. New Zealand coverage of the war was undoubtedly more critical than what I am here calling the "mainstream" account, though such an account nevertheless received a good hearing in the New Zealand press.

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Human Rights Research first theme is that Hezbollah was the aggressor in the war: it attacked first and Israel responded in self-defense. Thus Israel, but not Hezbollah, had justice on its side in going to war. The second theme is that Israel's conduct of the war was morally superior to that of Hezbollah's, chiefly because Israel, unlike Hezbollah, did not target civilians directly. To be sure, the mainstream account does not regard Israel's conduct of the war as morally perfect. A fairly common criticism is that Israel responded to Hezbollah's aggression with disproportionate force, perhaps grossly disproportionate force. Related, it is also occasionally suggested in the mainstream that Israel failed in its choice of targets adequately to distinguish civilian from military targets. Again, however, since the mainstream account holds that Hezbollah utterly failed to distinguish civilian from military targets, Israel's conduct of the war is generally regarded as morally superior to that of Hezbollah's. 3 As noted, the mainstream account is essentially a just war account, and just war theory forms the moral basis of (although it is also informed by) contemporary international law governing war, including the so-called Law of Armed Conflict. Thus, the plausibility of the mainstream moral account bears directly on the question whether central elements of international law have been violated, and, if so, by whom. First and foremost, assessing the plausibility of the account's jus ad bellum component is essential to determining which side (Israel or Hezbollah) violated the Charter of the United Nations, Article 2 (4) – arguably the cornerstone of public international law. It reads: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The question of jus ad bellum also bears directly on the closely related ideas expressed in Article 51 of the Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the

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A good representative of what I am calling the mainstream account is provided by Michael Walzer "The Ethics of Battle" (31 July 2006) The New Republic Washington DC (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR United Nations, until the Security Council has taken measures necessary to maintain international peace and security …

Both the jus ad bellum and jus in bello components of the mainstream account, meanwhile, bear on well-known elements of international humanitarian law and human rights law. These include, prominently, the Geneva Conventions and their various Protocols, as well as the Universal Declaration on Human Rights (UDHR). The basic idea behind the former is to give legal force to the ancient idea that war, despite its horrors, is nonetheless not a realm where anything goes. Rather, its conduct is governed by basic rules and principles. Most importantly, these include the principles of discrimination (military actions must attempt to distinguish legitimate from non-legitimate targets) and proportionality (military actions must not produce bad or evil that is disproportionate to whatever legitimate or good end they achieve). 4 Turning to the UDHR, its Article 3 guarantees, simply, that "Everyone has the right to life, liberty and security of person". Again, the jus in bello component of the mainstream account of the Israel-Hezbollah war has clear implications for whether (and, if so, how and by whom) this fundamental human right was violated during the war. In short, although the present paper focuses on the moral issues surrounding the Israel-Hezbollah war, it should be clear that these issues bear directly upon fundamental questions of international law and human rights. Still, it is important to bear in mind that although morality deals with questions that are closely related to foundational issues in law, the former cannot of course be identified with the latter. More specifically, in cases where the law is either unclear or unjust, morality functions as a kind of 'court of last resort'. When it is unclear what the law is – or when there are moral doubts about the way the law is – then questions of what the law should be come to the fore. When one addresses this question one is doing philosophy of law, for which moral philosophy is indispensable. 5 In section 2.5 of this paper I shall raise these sorts of doubts and suggest that aspects of international law governing war are not as they should be.

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For some useful discussion, see Kevin Riordan "Protecting Fundamental Human Rights in Times of War: The Means and Methods of Warfare" (2005) 3 Human Rights Research 49, 55.

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For further discussion of this issue, see Ramon Das "Ethics and Legitimacy in International Law" (2004) 2 Human Rights Research 99.

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Human Rights Research The thesis I shall defend is that the mainstream moral account of the war is largely mistaken: for the most part it simply draws the wrong moral conclusions about the war. First, on any reasonable account of the events leading up to the July war, it is Israel, not Hezbollah, that emerges as the most plausible candidate for being the aggressive party. Contrary to received wisdom, Hezbollah was defending itself (and, perhaps, Lebanon more broadly) from an overwhelming Israeli attack. Second, although both sides are guilty of failing to discriminate between military and civilian targets, Israel's conduct was, if anything, morally more culpable than Hezbollah's in this respect. Moreover, and related, I shall argue that Israel was indeed guilty of using disproportionate force, even granting the problematic claim that it did not intentionally target civilians. This is evidenced both by the large civilian death toll as well as by the tremendous devastation wreaked upon Lebanese society and infrastructure. I address these claims in turn. 1

Just cause in the Israel-Hezbollah war

1.1

The importance of historical context

Jus ad bellum comprises a number of different criteria, and it is usually held that all must be satisfied before a country can claim that it has justice on its side in going to war. However, in this section I focus mainly on the centrally important criterion of 'just cause': Which side can claim that it had a just cause in going to war? Just war theorist Brian Orend calls this criterion "clearly the most important rule [of jus ad bellum]; it sets the tone for everything that follows". 6 Now, at the heart of the question of just cause lies the notion of self-defense. The paradigm of a state having a just cause for going to war is thus when it is under armed attack. This notion is sometimes extended (increasingly so nowadays) to include the case where it is reasonable to regard an armed attack on one's territory as imminent. In such cases a state may be justified in launching a 'preemptive' attack, a point worth noting given its potential relevance to the present case. 7 However, in

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Brian Orend "War" in Edward N Zalta (ed) The Stanford Encyclopedia of Philosophy (The Metaphysics Research Lab, Stanford, December 2005).

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Such "preemptive" war must be distinguished sharply from preventive war, in which an attack is launched to prevent some (alleged) medium – or long-term future threat. It is generally agreed that such preventive attacks cannot be justified, due principally to the fact that it is very difficult to forecast such temporally distant threats with any accuracy. See Brian Orend The Morality of

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR focusing on the question of just cause with respect to the recent war, our central question is: Which side was the aggressor and which side acted in self-defense? 8 It is impossible to assess this question adequately without some sense of the relevant historical context. Such historical questions are of course often contested, not least in the various and ongoing conflicts between Arabs and Israel. Nevertheless, the extent of credible historical disagreement in the Israel-Arab conflict is generally overstated. 9 and in any case the relevant history for present purposes should not be controversial. It covers a relatively short time-frame: the six year period since Israel's military withdrawal from southern Lebanon in May 2000. Prior to that, Israel had occupied Lebanon for over 20 years, and had launched an attack against the country in 1982 that killed some 20,000 Lebanese, mostly civilians. A moderately thorough account of the relevant history leading to the recent war would examine the 1982 war in some detail, particularly given its role in essentially giving rise to Hezbollah. Again, however, I shall confine myself here to the period dating roughly from May 2000. The date is hardly arbitrary, given that it signals the official end of Israel's military occupation of southern Lebanon. On the other hand, it would be difficult to argue that focusing on this timeframe somehow unfairly prejudices the present inquiry in Hezbollah's favor. At least, I have been unable to think of any such argument. If we focus on this timeframe, it is fairly easy to outline the context relevant to an assessment of the question of just cause in the recent war. Specifically, the most salient feature of that context is that there were numerous crossborder, relatively small-scale, attacks committed by both sides in recent

War (Broadview Press, Toronto, 2006) 74 and following. I return to this point below in discussing some comments of the Israeli Foreign Minister. 8

I am assuming, with Michael Walzer and others, that the question of just cause is effectively an "either/or" question – either one side is the aggressor and the other side defending itself, or vice-versa: see Michael Walzer Just and Unjust Wars (2 ed, Basic Books, New York, 1991) 63 and following.

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This point is made in different ways by Norman Finkelstein Beyond Chutzpah (University of California Press, Berkeley, 2005) 2-8; Michael Neumann The Case Against Israel (Counterpunch, Petrolia, California, 2005) 4 and following; and Ron David Arabs and Israel for Beginners (Writers and Readers Publishing, New York, 1993).

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Human Rights Research years. According to the United Nations Interim Force in Lebanon (UNIFIL), there have been hundreds of such attacks since Israel's withdrawal from southern Lebanon in May 2000, all of which technically count as violations of the 'blue line' between the two countries. According to UNIFIL, Israel crossed that line almost daily between 2001 and 2003 and 'persistently' until 2006. Here is a sample of the UNIFIL report filed on 18 July 2006, six days into the war: 10 Persistent and provocative Israeli air incursions, occasionally reaching deep into Lebanese airspace and generating sonic booms over populated areas, remained a matter of serious concern. The pattern identified in my previous reports continued, whereby the aircraft would sometimes fly out to sea and enter Lebanese airspace north of the UNIFIL area of operation, thus avoiding direct observation and verification by UNIFIL. The air incursions violate Lebanon's sovereignty and territorial integrity, elevate tension and disrupt the fragile calm along the Blue Line. A reduction in the number of air incursions in April contributed to an atmosphere of relative calm along the Blue Line, but this trend was reversed in May.

Hezbollah fired rockets at IDF positions within Israel on several occasions during this time period, and Hezbollah as well as Israeli soldiers were occasionally killed in such clashes. The point I wish to emphasise, however, is that for more than six years none of these cross-border hostilities escalated into full-blown military conflict of the sort that occurred in July 2006.11 The moral significance of this context should be hard to miss, although it has been consistently missed. 12 For it is easily established that Hezbollah's

10 UNSC Report of the Secretary-General on the United Nations Interim Force in Lebanon: For the Period from 21 January 2006 to 18 July 2006 (21 July 2006) S/2006/560. 11 This point has been emphasised by George Monbiot. See George Monbiot "Israel Responded to an Unprovoked Attack by Hizbollah, Right? Wrong" (8 August 2006) The Guardian London (last accessed 24 August 2007). 12 See, for instance, Hebrew University Law Professor Robbie Sabel, who –omitting the relevant context– simply assumes that because Hezbollah fired the first shots on July 12 it was the aggressor in the war. See Robbie Sabel "Hezbollah, Israel, Lebanon and the Law of Armed Conflict"

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR actions on July 12 – which the mainstream account regards as the triggering events of the subsequent war and therefore crucially constitutive of a just cause permitting Israel to go to war in self-defense – fit quite easily into the familiar pattern established over the previous six years. In other words, given the relevant context there was nothing particularly unusual about what Hezbollah did on July 12. There was nothing of the sort that Hezbollah – and, more importantly (and more frequently), Israel – had not done many times before. But if this is right, then the jus ad bellum component of the mainstream account faces a dilemma. Either Hezbollah's actions of July 12 constituted an act of aggression or they did not. If they did not, then Israel's markedly violent escalation initiated later that day was unjustified, and indeed itself constitutive of an act of aggression. If, on the other hand, Hezbollah's actions of July 12 did constitute an act of aggression in response to which Israel was entitled to launch a full-scale war, then plausibly much the same thing can be said of any comparable military action undertaken by either side over the preceding six years. In particular, any one of the scores of Israeli violations of the blue line documented by UNIFIL would have constituted an act of aggression, in response to which Hezbollah may have been justified e.g. in launching missiles at Tel Aviv. I take it without further argument that this counts as a reductio against the second horn of the dilemma. In short, characterising Hezbollah's actions of July 12 as the decisive act of aggression – as the mainstream account does – is morally arbitrary. If the relevant context for assessing the question of just cause is the time period since May 2000, it would be morally arbitrary to single out any one of the relatively minor cross-border attacks committed by either side, as mentioned above. 13 What is not morally arbitrary, on the other hand, is focusing on Israel's markedly violent escalation later in the day on July 12. The level and scope of that assault really was unprecedented in the conflict, at least going

(last accessed 24 August 2007). 13 One might argue that focusing on the first such attack would not be arbitrary, given the context. Perhaps not, but then the selection of the context would be significant in a way that I have suggested it is not for present purposes. In any case, to my knowledge no one has suggested that the first cross-border attack after Israel's withdrawal in May 2000 is somehow decisively important to the morality of the July 2006 war.

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Human Rights Research back to May 2000. But then it is Israel's escalation on July 12 that counts as the relevant act of aggression for the purposes of assessing jus ad bellum. Israel, not Hezbollah, emerges as the most plausible candidate for being the aggressor in the conflict. To reinforce this central claim, let us briefly review the events of 12 July 2006. First, it is agreed on all sides that there is a clear sense in which Hezbollah fired the first shots on that day. In particular, it launched a commando raid within Israeli territory, capturing three Israeli soldiers and killing two in the ensuing gunfight. Simultaneously, Hezbollah launched a rocket attack at IDF positions and in the direction of the northern Israeli town of Shlomi. (Israeli defense officials characterised the latter attack as a "diversionary tactic"). Moreover, Hezbollah's motive for capturing the soldiers was evident. It wished to exchange them for Hezbollah fighters held by Israel, which it immediately offered to do. Declining the offer, Israel sent troops across the border in an attempt to recapture the kidnapped soldiers. Their tank hit a landmine and four more soldiers were killed; an additional soldier was killed in an attempt to recover the bodies. 14 Again, up until this point the fighting fitted the pattern established over several years. There was nothing particularly unusual in the fact that Hezbollah captured Israeli soldiers on July 12. They had done so before, and in January 2004 there was a swap of prisoners between the two sides. There is also nothing unusual in the fact that troops crossed the blue line, nor in the fact that soldiers were killed, on either side. This had happened many times before, as noted. Nor was there anything novel in the fact that civilian communities were the target of attack, however diversionary. According to UNIFIL Israel had been sending warplanes as far north as Beirut for years, and had occasionally launched air-strikes against civilian communities within Lebanon, most recently in May 2006. 15 It must be emphasised that on July 12, Israel could not claim with any credibility that its actions toward Lebanon since withdrawing from that country six years earlier fitted a strictly defensive or reactionary pattern. To the contrary, since May 2000 Israel had

14 UNSC, above n 10; Jonathan Cook "Human Rights Watch Still Denying Lebanon the Right to Defend Itself" (last accessed 24 August 2007). 15 UNSC, above n 10.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR committed many more, and more serious, violations of the blue line than had Hezbollah. 16 The mainstream account is that Israel's markedly escalated response is explained by the fact that Hezbollah's actions of July 12 were radically out of step with previous actions by the two sides. The position of Israeli analyst Shlomo Brom, of the Jaffee Center for Strategic Studies, may be taken as representative. Writing on July 13, he claims that Hezbollah's July 12 actions were a "blatant violation" of the informal rules of engagement established after Israel's withdrawal from southern Lebanon in May 2000. According to these rules, writes Brom: 17 Hezbollah acts only against military forces and only in the Mount Dov (Shab'a Farms) sector, and Israel responds in kind. This time, the operation took place in the western sector of the border and included the shelling of Israeli settlements. Hezbollah might have refrained from launching this operation if Israel had reacted more vigorously to previous Hizbullah attempts to breach the rules.

Brom implies that Hezbollah had been the aggressive party since May 2000, and that Israel actions had always been defensive and proportionate, responding only 'in kind'. However, if the UNIFIL reports are accurate – and again, the observers documented scores of violations committed by both sides over several years, including the targeting of civilian communities by Israel – then Brom's argument cannot be sustained. The argument crucially depends on the claim that Israel's actions were always defensive; that it only ever responded to Hezbollah attacks. Yet this claim appears to be seriously mistaken. This leaves Israel's response to Hezbollah's raid on July 12 as constituting the best candidate for being the initiating act of aggression in the war. In

16 Not a single Israeli civilian was killed by rocket fire from Lebanon during that six year period. For a complete list of rocket attacks from Lebanon at Israel since May 2000, see Stephen Shalom "Lebanon War: Questions and Answers" (last accessed 24 August 2007). 17 Shlomo Brom "The Confrontation with Hizbullah" (13 July 2006) 177 Tel Aviv Notes (last accessed 24 August 2007).

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Human Rights Research particular, the Israeli Defense Forces (IDF) launched systemic attacks against a broad range of military and civilian targets throughout southern Lebanon and as far north as Beirut. Numerous roads, bridges and buildings were bombed, as well as the Beirut airport. Within the six-year period under consideration, these attacks were utterly unprecedented in their scope and level of destructiveness. By contrast, Hezbollah did not respond with heavy rocket fire into Israeli cities and towns until well after this initial Israeli assault. For instance, it did not target Haifa, Israel's third largest city, until one or two days after the initial Israeli escalation. 18 It also refrained from targeting Tel Aviv, though most observers think it had rockets that would reach that far. I certainly do not wish to imply that there is no controversy about what, exactly, occurred on July 12 and the days that immediately followed. Yet it is worth noting that even the Israeli government appears to confirm the account I have provided of the timing of key events. In particular, it does not dispute the crucial claim that it first escalated the hostilities. (As one would expect, the Israeli account does contain differences of emphasis and of course it characterises Hezbollah as the aggressor.) This is evident from the Israel Ministry of Foreign Affairs website, where one can read the official IDF account of the events of July 12 from a report written that day: 19 Throughout the day [July 12], Hizbullah terror organization fired Katyusha rockets and mortar shells at Israel's northern borders' communities and IDF posts. In response, the IDF carried out over 100 aerial attacks in Lebanon, targeting mainly Hizbullah bases. A vehicle, in which two Hizbullah terrorists were traveling, was targeted in the evening. A number of bridges and roads in

18 Hezbollah leader Hassan Nasrallah denied targeting Haifa – or any other civilian centers within Israel – until his Beirut offices were bombed on July 14: "Day-byDay: Lebanon Crisis – Week 1" (last accessed 24 August 2007). 19 Israel Ministry of Foreign Affairs, "IDF Spokesman: Hizbullah Attack on Northern Border and IDF Response (12 July 2006) Press Release (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR Lebanon were also attacked, in order to prevent Hezbollah from transferring the abducted soldiers.

Note that the IDF does not claim that on July 12 Hezbollah fired any of its more sophisticated, longer-range missiles (as it would in the days that followed). 20 At the same time, the IDF states that it carried out over 100 aerial attacks on targets that included roads and bridges which, I have argued, represents a clear departure from the informal rules of engagement established in the wake of Israel's withdrawal from Lebanon in May 2000. Further evidence to this effect comes from the remarkable Winograd Commission Interim Report on the war, commissioned by the Israeli Government and released at the end of April 2007: 21 [I]n making the decision to go to war, the government did not consider the whole range of options, including that of continuing the policy of 'containment', or combining political and diplomatic moves with military strikes below the 'escalation level', or military preparations without immediate military action – so as to maintain for Israel the full range of responses to the abduction. This failure reflects weakness in strategic thinking, which derives the response to the event from a more comprehensive and encompassing picture [my emphasis].

In short, given that even the Israeli government apparently does not dispute the timing of key events on which the above argument crucially depends, it seems reasonable to take that timeline as relatively uncontroversial and wellestablished. 1.2

Other jus ad bellum criteria

To this point I have focused on the centrally important criterion of just cause. As noted above, however, there are other criteria that must be met in order to

20 The initial firing of such missiles in any quantity by Hezbollah would indeed have represented a clear departure from the pattern established over the previous several years and, in my view, clearly identified Hezbollah as the aggressor. 21 Israel Ministry of Foreign Affairs "Winograd Commission Submits Interim Report" (30 April 2007) Press Release (last accessed 24 August 2007).

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Human Rights Research satisfy the overall requirements of jus ad bellum. These include the important criteria of 'last resort,' 'proportionality,' and 'right intention'. Of these, I believe Israel clearly failed to meet the first two, and almost certainly failed to meet the last. As I think that there are important areas of overlap between jus ad bellum and jus in bello with respect to the criterion of proportionality, I shall leave a discussion of that topic for the next section. In the remainder of this section, however, I shall briefly address the criteria of 'last resort' and 'right intention'. Consider the criterion of 'last resort'. It holds that to be just, any resort to war must truly be a last resort. In particular, a state must have pursued all reasonable attempts to achieve a diplomatic, non-violent resolution to the dispute before resorting to the use of armed force. Now, it is (arguably) a conceptual impossibility for a state to satisfy this criterion if it is the aggressor in a war. Thus if the argument presented above is correct, it probably suffices to show that Israel failed to meet the criterion of last resort. Quite simply, it did not need to launch a full-scale assault against Lebanon on July 12 in response to Hezbollah's capture of Israeli soldiers. For one thing, it is likely that the soldiers' return could have been secured had Israel agreed to an exchange of prisoners, as in the past. 22 However, this general point about last resort can be strengthened. For there was a formal attempt to avoid war put forward by the Lebanese government, which tried to broker a ceasefire between Israel and Hezbollah soon after Israel's military escalation on July 12. Israel flatly refused the offer, maintaining that any ceasefire was contingent upon the return of the captured soldiers. 23 Consider, finally, the criterion of 'right intention'. Just war theory typically holds that to have a just cause for going to war a state must have, subjectively, the right sort of intention or 'frame of mind'. Evidently, this sort of criterion is fraught with difficulties related to determining the intentions of a collective entity such as a state. Set those aside. In the case of jus ad bellum, including the present case, it is usually assumed that the right sort of intention is closely connected to the motive of self-defense, or, perhaps, the defense of an innocent third party. Given the assumption, standard across the mainstream of political discourse, that Israel has legitimate and ongoing

22 At the time of writing (August 2007), it looks increasingly likely that this will finally occur. 23 UNSC, above n 10.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR security concerns, it is not surprising that the mainstream account generally assumes that Israel satisfied this criterion in its war with Hezbollah. However, if I am correct in arguing that Israel was the aggressor in the recent war, it is very unlikely, to say the least, that it satisfied the criterion of right intention. Once again, there is independent evidence that can be entered in support of this claim. For it is now widely recognized that Israel, in conjunction with the US government, had planned an attack against Hezbollah well in advance. In particular, Seymour Hersh reported in the New Yorker in August 2006 that Israeli and American plans for a war against Hezbollah were at least a year old. According to Hersh, American planners in the Bush administration saw an Israeli attack on Hezbollah effectively as a prelude to a US assault on Iran. Israeli officials were apparently happy to contribute to this strategy, having independently planned to attack Hezbollah. 24 To be sure, the existence of war plans in itself carries little evidential or moral weight, given that all armies presumably have plans for various contingencies that may arise. However, it would be wrong to describe the plans Hersh describes as mere contingency plans. For a start, one would have to address the claim elaborated above – namely, that there was nothing particularly unusual about Hezbollah's cross-border actions of July 12, indeed, nothing of the sort that Israel hadn't done itself many times. More specifically, there was no good reason to think that Hezbollah's actions of July 12 showed it to be a grave threat to Israel, in a way that it would have to be in order to justifiably trigger a mere contingency plan. Rather, it would be more accurate to describe Israeli and American planners on the eve of the war as looking for a pretext to go to war. Needless to say, if this is right it casts further doubt on the claim that Israel went to war against Hezbollah with the

24 See Seymour Hersh "Watching Lebanon: Washington's Interest in Israel's War" (last accessed 24 August 2007); Interview with Seymour Hersh (Amy Goodman, Democracy Now!, 14 August 2006) transcript available (last accessed 24 August 2007); Stephen Zunes "How Washington Goaded Israel to Invade Lebanon" (last accessed 24 August 2007).

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Human Rights Research right intentions. Indeed, if Hersh's claim is correct it only lends further support to our contention that Israel acted as the aggressor in the war. In focusing on Israel's less-than-good intentions, I don't of course wish to imply that Hezbollah acted with morally pristine intentions. Certainly it had its own strategic aims. Adam Shatz, for instance, has argued that Hezbollah leader Hasran Nasrallah had two over-riding aims in launching a cross-border raid against Israel when he did. First, he wished to prevent the Lebanese government from pressuring Hezbollah to lay down its arms. Second, he wanted to bolster Hezbollah's image throughout the Arab world as the only credible defender against (widely perceived) American and Zionist aggression. 25 Doubtless Nasrallah had other intentions, some of which were presumably of dubious moral worth. Nevertheless, the significance of this presumed fact is unclear from the standpoint of the criterion of 'right intention' within just war theory. No contemporary just war theorist expects a modern state, or a non-state entity like Hezbollah, to act with morally pure intentions. Obviously, the intentions of any such entity are mixed. And it is enough, most theorists agree, that at least one of its intentions be a good one. 26 In the present case, absent very good evidence to the contrary, there is every reason to suppose that one of the intentions on which Hezbollah acted was the desire to defend itself, and perhaps Lebanon more broadly, from an overwhelming Israeli attack. The presence of this intention is sufficient to meet the criterion of 'right intention'. Summarising this first section, we have seen that the mainstream moral account of the war gets the question of jus ad bellum badly wrong. The claim that Hezbollah committed an act of aggression on July 12 is morally arbitrary, at best. It leads to the absurd conclusion that any one of the hundreds of cross-border violations committed by either side in the period dating from May 2000 would have counted as an act of aggression, in response to which the other side would have been justified in launching a major retaliatory attack. Focusing on Israel's violent escalation on July 12 as the relevant act of aggression, on the other hand, is not morally arbitrary. Indeed, it emerges as the most plausible candidate, and Israel, in turn,

25 See Adam Shatz "Nasrallah's Game" (20 July 2006) The Nation (last accessed 24 August 2007). 26 Orend, above n 7, 47.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR

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emerges as the most plausible candidate for being the aggressor in the war. Unsurprisingly, Israel also fails to meet the criteria of 'last resort' or 'right intention'. In short, if either side in the armed conflict between Israel and Hezbollah went to war with a just cause, it was Hezbollah, for it was the only side that could claim with any plausibility to be acting in self-defense. To be sure, it could not make this claim until after Israel's escalation of hostilities later in the day on July 12. We shall see that this first main claim is not irrelevant to our discussion in the next section, where we address the question of jus in bello, or the justness of conduct in war. 2

Just conduct in the Israel-Hezbollah war

2.1

Discrimination and non-combatant immunity

As the criterion of 'just cause' is central to jus ad bellum, so the related principles of 'discrimination' and 'non-combatant immunity' are at the heart of jus in bello, or the justness of the conduct of war. The principle of discrimination holds that armed force may not be used indiscriminately. This means that all reasonable attempts must be made to distinguish legitimate from illegitimate targets. Although there are different ways to draw this distinction, I shall follow Brian Orend's suggestion that a legitimate target is "anything or anyone engaged in harming". 27 This entails that civilians not directly engaged in the military effort ('non-combatants') are illegitimate targets and thus cannot be targeted intentionally. Although it should be obvious upon reflection, it is worth noting that jus in bello, unlike jus ad bellum, does not pose an 'either/or' question. The fact that one side in a war fights in an unjust manner hardly guarantees that the other side fights justly. Indeed, it would be surprising to learn of any side in any war that has ever conducted itself in an entirely just manner. Now, as I have indicated above, the mainstream moral account holds that Israel's conduct of the war, though far from perfect, was still morally superior to Hezbollah's chiefly because the former but not the latter made a concerted effort to distinguish military from civilian targets. Again, I shall argue that this claim is mistaken, though the issues in this case are perhaps less clear than in the case of jus ad bellum. Nevertheless, we shall see that, if anything, Israel's conduct was morally more culpable than Hezbollah's, particularly in terms of respecting the principles of discrimination and proportionality.

27 Orend, above n 7, 107.

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Human Rights Research As a first step toward establishing this claim, let us return to the idea that civilians not involved in the military effort are illegitimate targets that may not be harmed intentionally. This formulation leaves open some important questions. For instance, which targets, exactly, count as legitimate? Enemy soldiers are obvious candidates, as well as their associated equipment and supply routes. Other fairly uncontroversial targets include civilian activities directly related to the war effort, such as munitions factories. All of these targets are subject to the further rule of proportionality – any bad incurred must be proportional to the good achieved (more on this below) – but are otherwise regarded within jus in bello as (fairly) unproblematic targets. Considerably more problematic are infrastructure targets that are designed primarily for civilian use but that also have military application. Bridges and roads provide good examples, as do civilian airports. Closer to the far end of clearly unacceptable targets include basic infrastructure essential to ordinary civilian life, such as water sanitation and electricity plants. Israel's bombing of electricity generation plants in Gaza shortly before the attack on Hezbollah, for instance, appears to be a clear violation of the principle of discrimination. 2.2

Proportionality and the doctrine of double effect

There is another important issue that must be addressed before proceeding. The above definition of a legitimate target – anyone or anything engaged in harming – is meant to rule out only the intentional targeting of civilians not engaged in the military effort. It is silent on the question of whether, and if so when, civilians may be killed unintentionally. This is a rather large omission, as soldiers will rarely admit to killing civilians intentionally, and legitimate military targets are often located near civilian centers. It is, moreover, a familiar observation that the highly destructive methods of modern warfare typically produce large numbers of civilian casualties. In any case, there is another rule associated with jus in bello that addresses the question of when the foreseen but unintended killing of civilians is permissible. The 'doctrine of double effect' (DDE) holds that civilians may be killed: 1) when their deaths, though foreseeable, are not intended either as an end or as a means to some further end; and 2) when the bad represented by their deaths is proportional to the good that the military action achieves. For present purposes, I shall focus on rule 2, which highlights the principle of proportionality. It is important to note, however, that this principle applies quite broadly within jus in bello, insofar as the expected bad of any action must always be proportional to the expected good. The first point I wish to make about proportionality is fundamental. In particular, it is reasonable to

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR wonder how a military force engaged in an aggressive – hence illegitimate – war could claim that any military action in support of its illegitimate end could possibly be good at all. It would then follow trivially that no action of an aggressive military force could satisfy the principle of proportionality or, in turn, DDE. This line of thought suggests that at least one important aspect of jus in bello, namely, the principle of proportionality (and with it DDE), depends rather closely on how the question of jus ad bellum is settled. And that suggestion is in tension with the traditional conception of just war theory, according to which the questions of jus ad bellum and jus in bello are to be decided separately. Although I cannot argue for the claim here, I believe that the traditional view is mistaken, and that the questions of jus ad bellum and jus in bello are indeed closely connected. Orend also holds this view, and he puts the basic point nicely: '[W]e literally cannot make moral sense of some jus in bello rules –notably proportionality … without considering the just cause of the war to begin with'. 28 If this is right, then, given what I have argued in Part 1, it is very hard to see how any of Israel's actions in its war against Hezbollah could satisfy the rule of proportionality. Nevertheless, for the sake of argument I shall set this first point about proportionality aside (I return briefly to the issue of proportionality within jus ad bellum in the concluding section). My second point is located more squarely within jus in bello, and, I believe, ultimately leads to a similar conclusion regarding the moral assessment of the conduct of the war. It begins with the observation that how one decides questions of proportionality has significant implications for the first rule of DDE, in particular, for the moral importance of the distinction between what one intends and what one merely foresees. The basic point is this: if a military action can be expected to produce a disproportionate amount of bad (such as extensive civilian casualties), it really isn't that important, morally speaking, whether or not that bad effect was intended or merely foreseen. Indeed, in cases that expectably produce a hugely disproportionate amount of bad, it becomes difficult to maintain the intended/foreseen distinction at all. Thus, it strains all credibility to say of a pilot who drops a nuclear bomb on a munitions factory inside a major city that he did not intend to kill civilians, but merely foresaw that he would do so. Such cases reflect the fact that for all practical purposes within war, intentions cannot be separated completely from expected consequences.

28 Orend, above n 7, 106.

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Human Rights Research 2.3

Intentions, consequences, and the principle of discrimination

This fundamental connection between intentions and expected consequences applies more broadly within jus in bello. In particular, it is relevant to the principle of discrimination. As noted, that principle holds that force may not be used indiscriminately, which means that all reasonable attempts must be made to distinguish legitimate from illegitimate targets. And this raises the very important question: how do we determine whether or not one side has made a reasonable attempt? Unfortunately, it is no use pointing to politicians or military commanders who claim that they attempt to avoid e.g. civilian casualties – since they invariably make this claim. Rather, as in the case of individual conduct, the best evidence for determining the intentions that lie behind military conduct comes from observing the conduct itself, particularly when it is manifest in repeated patterns. In the case at hand, the best evidence for whether or not Israel or Hezbollah attempted to conform to the principle of discrimination comes from examining the expected and actual consequences of their respective actions during the war. What do we discover when we examine those consequences? The first fact that stands out is the marked discrepancies in casualties between the two sides – discrepancies both in the absolute number of casualties and in the ratio of civilian to military casualties. Consider, for example, the numbers of civilians killed. On the Israeli side we have an exact figure: 43 civilians dead. 29 The number of Lebanese civilians killed, on the other hand, is more than 25 times this, somewhere around 1150. 30 The Lebanese government – no friend of Hezbollah – reported that some 30% of these were children under the age of 13. 31 (Bear in mind that the population of Lebanon is less than two-thirds the population of Israel.) Perhaps even more striking is the ratio of civilian to military casualties. The figures are disputed (the UN and Israel claim 500-600 Hezbollah fighters were killed; Hezbollah claims the figure is 250), but in any case Israel managed to kill between two to five times as many civilians as they did Hezbollah fighters. Hezbollah, on the

29 Israel Ministry of Foreign Affairs (last accessed 24 August 2007). 30 "Lebanon Reports 1,130 Dead" (12 August 2006) Israel National News (last accessed 24 August 2007) ["Israel National News"]. 31 Israel National News, above n 30.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR other hand, killed nearly three times as many IDF soldiers (119) as it did civilians. Thus, the ratios of civilian to military dead are roughly reversed in the two cases. The respective ratios for civilians wounded are similar. 32 In short, judging only by casualty figures it would seem that Hezbollah did a much better job of respecting the principle of discrimination than Israel did. The figures become even more striking when one considers Israel's vast advantage in military technology, in particular, its possession of far more accurate weapons. These facts put the mainstream account in an uncomfortable position, to say the least. How could Israel, which supposedly respects the principle of discrimination and possesses highly accurate weapons, kill a far greater ratio of civilians to soldiers than Hezbollah, which supposedly does not respect the principle of discrimination and possesses comparatively inaccurate weapons? 2.4

Civilian shields

The mainstream account has a ready reply. The reason that there were so many more Lebanese than Israeli civilian casualties is that Hezbollah effectively used civilians as 'shields' by deliberately locating its rockets and fighters within or very close to civilian population centers. Even with its highly accurate weaponry, there was no way for Israel to target Hezbollah fighters and weapons without at the same time harming innocent civilians. At least one commentator took this argument a step further, arguing that in such cases we should hesitate to think of all civilians as innocent bystanders. Instead, we should think in terms of a 'continuum of civilianity', reflecting the fact that some civilians are willingly aiding the enemy and hence are more legitimate targets than others who do so unwillingly. 33 In any case, the mainstream account maintains, it is Hezbollah's cynical actions that put civilians at risk, and it is thus Hezbollah not Israel that bears responsibility for Lebanese civilian casualties.

32 Amnesty International "Under Fire: Hizbullah's Attacks on Northern Israel" (14 September 2006) (last accessed 24 August 2007). 33 Alan Dershowitz "'Civilian Casualty'? It Depends" (22 July 2006) Los Angeles Times Los Angeles (last accessed 24 August 2007).

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Human Rights Research Michael Walzer has summarised this sort of reply – albeit with respect to Palestinians – as follows: "When Palestinian militants launch rocket attacks from civilian areas, they are themselves responsible – and no one else is – for the civilian deaths caused by Israeli counterfire". 34 I assume that Walzer thinks the same is true of Hezbollah militants, and I shall take his formulation as representative of the mainstream reply. It contains two main elements. First, there is an (implied) empirical claim that Hezbollah did indeed launch attacks against Israel from within civilian areas. Second, there is a legal/moral claim that in such cases Hezbollah bears full moral responsibility for any civilian deaths caused by Israeli retaliation against Hezbollah fighters. I shall consider these claims in reverse order. Assume for the moment that the empirical claim is correct. Does the legal/moral claim follow? It is hard to find any basis, either in international law or in basic morality, for thinking that it does. As Mark Levine has pointed out, Walzer's claim simply contradicts central components of international law designed to protect civilians, such as the Hague and Geneva conventions. Israel has a legal responsibility not to fire indiscriminately at civilians, whatever the provocation. 35 Stephen Zunes quotes a recent Human Rights Watch report that confirms this judgment: "Deploying military forces within populated areas is a violation of international humanitarian law, but that does not release Israel from its obligations to take all feasible precautions to minimize harm to civilians and civilian property during military operations". 36 Turning to morality, I know of no moral-theoretical approach, consequentialist or deontological, that would vindicate Walzer's claim. Doubtless it is true that if Hezbollah deliberately places its forces in close proximity to civilians, it bears considerable responsibility for any harm done to them. But that is no reason to think that Israel is thereby entirely absolved of moral responsibility for such harm. Standard consequentialist theories

34 Walzer, above n 3. 35 Mark LeVine "Michael Walzer's Tortured Ethics" (31 July 2006) Znet (last accessed 24 August 2007). 36 Stephen Zunes "Congress and the Israeli Attack on Lebanon: A Critical Reading" (22 July 2006) Foreign Policy in Focus (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR would apportion responsibility to both sides in such a case. Nor is there any obvious deontological or Kantian route to support Walzer's contention, which seems to countenance the possibility of unlimited killing of innocents. Specifically, Walzer does not qualify his claim with respect to the number of innocents killed in a way that might bring the claim within the scope of the DDE and the principle of proportionality. In short, absent considerable further argument Walzer's claim is untenable as a matter of basic morality. Let us return, then, to the mainstream account's implied empirical claim that Hezbollah effectively used civilians as 'shields'. Is there good evidence to support this? The most authoritative source in support of the claim is Jan Egeland, UN Undersecretary-General for Humanitarian Affairs, who on July 25 accused Hezbollah of "cowardly blending … among women and children". 37 This criticism was repeated across the mainstream, and indeed has attained the status of received wisdom. The criticism of Hezbollah is meant to contrast, of course, with Israel, which virtually no one in the mainstream thinks is guilty of using civilian shields. The reality is considerably less clear, and the reports of the major human rights organisations point to a rather different conclusion. Although the reports did find that Hezbollah occasionally stored weapons in and operated from civilian areas (actions which count as serious violations of various laws of war), they did not find evidence that Hezbollah was deliberately using civilians to shield its fighters from Israeli attack. Most important for present moral purposes, the reports explicitly deny that Hezbollah's blending with civilians was what explained the high number of Lebanese civilian casualties. Rather, they clearly identify Israel's 'indiscriminate' use of lethal force (also a major war crime) as the explanation for those casualties.

37 "UN Humanitarian Chief Blasts Hezbollah" (25 July 2006) Jeruselem Post Jeruselem (last accessed 24 August 2007). See also Jonathan Freedland "For Palestinians' Sake, Olmert Must Emerge with His People's Respect" (2 August 2006) The Guardian London (last accessed 24 August 2007).

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Human Rights Research Consider, first, a Human Rights Watch study released at the end of the fighting in August 2006, which directly addressed the issue of civilian shields. According to the report: 38 Human Rights Watch found no cases in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attacks. Hezbollah occasionally did store weapons in or near civilian homes and fighters placed rocket launchers within populated areas or near UN observers, which are serious violations of the laws of war because they violate the duty to take all feasible precautions to avoid civilian casualties. However, those cases do not justify the IDF's extensive use of indiscriminate force which has cost so many civilian lives. In none of the cases of civilian deaths documented in this report is there evidence to suggest that Hezbollah forces or weapons were in or near the area that the IDF targeted during or just prior to the attack. By consistently failing to distinguish between combatants and civilians, Israel has violated one of the most fundamental tenets of the laws of war: the duty to carry out attacks on only military targets. The pattern of attacks during the Israeli offensive in Lebanon suggests that the failures cannot be explained or dismissed as mere accidents; the extent of the pattern and the seriousness of the consequences indicate the commission of war crimes.

These findings, and in particular the claim that IDF attacks failed to discriminate between military and civilian targets, are echoed by an Amnesty International report also released in August 2006: During more than four weeks of ground and aerial bombardment of Lebanon by the Israeli armed forces, the country's infrastructure suffered destruction on a catastrophic scale. Israeli forces pounded buildings into the ground, reducing entire neighbourhoods to rubble and turning villages and towns into ghost towns, as their inhabitants fled the bombardments. Main roads, bridges and petrol stations were blown to bits. Entire families were killed in air strikes on their homes or in their vehicles while fleeing the aerial assaults on their villages. Scores lay buried beneath the rubble of their houses for weeks, as the Red Cross and other rescue workers were prevented from accessing the areas

38 Human Rights Watch "Fatal Strikes: Israel's Indiscriminate Attacks Against Civilians in Lebanon" (August 2006) (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR by continuing Israeli strikes. The hundreds of thousands of Lebanese who fled the bombardment now face the danger of unexploded munitions as they head home. Israeli government spokespeople have insisted that they were targeting Hezbollah positions and support facilities, and that damage to civilian infrastructure was incidental or resulted from Hezbollah using the civilian population as a 'human shield'. However, the pattern and scope of the attacks, as well as the number of civilian casualties and the amount of damage sustained, makes the justification ring hollow. The evidence strongly suggests that the extensive destruction of public works, power systems, civilian homes and industry was deliberate and an integral part of the military strategy, rather than 'collateral damage' – incidental damage to civilians or civilian property resulting from targeting military objectives. 39

In short, the major human rights organisations hardly provide unqualified support for the claim that Hezbollah was guilty of using civilian shields. Furthermore, they are clear that the high civilian casualty toll was the result of indiscriminate attacks by the IDF – not of Hezbollah fighters and weapons operating in or near civilian communities. On the other hand, there is some evidence that Israel may have been guilty of using 'civilian shields' during the war. According to Jonathan Cook, a British journalist living in the northern Israeli town of Bethlehem: 40 There are hundreds of … military installations next to or inside Israel's northern communities. Some distance from Nazareth, for example, Israel has built a large weapons factory virtually on top of an Arab town – so close to it, in fact, that the factory's perimeter fence is only a few metres from the main building of the local junior school'.

39 Amnesty International "Deliberate Destruction or "Collateral Damage"? Israeli Attacks on Civilian Infrastructure" (23 August 2006) (last accessed 24 August 2007). 40 Jonathan Cook "Israel, Not Hizbullah, is Putting Civilians at Risk on Both Sides of the Border" (4 August 2006) Znet (last accessed 24 August 2007).

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Human Rights Research Significantly, a comprehensive Amnesty International study of November 2006 puts Israeli behavior on a par with Hezbollah with respect to the issue of civilian shields. The report reinforces the points made in its August 2006 report and raises the question whether Israel's behaviour with respect to the use of civilian shields was any better than Hezbollah's: The close proximity of the military to civilian areas is also not unusual in Israel … Following the killing of 12 Israeli soldiers "outside the entrance" to the kibbutz of Kfar Giladi, where their battalion had been stationed for a week, it was reported that "during the war hundreds of soldiers were on the kibbutz, including a medical company, special units and artillery troops". A number of other northern towns and villages with large Arab populations reportedly have munitions factories near to them … While the presence of Hezbollah's fighters and short-range weapons within civilian areas is not contested, this in itself is not conclusive evidence of intent to use civilians as 'human shields', any more than the presence of Israeli soldiers in a kibbutz is in itself evidence of the same war crime. 41

Summarising this section, we have examined the question whether the great disparity in civilian casualties between Israel and Hezbollah can be explained by the latter's use of 'civilian shields'. We have seen that, although Hezbollah fighters sometimes operated in or near civilian centres, there is not good evidence – at least according to the major human rights organisations – that they deliberately used civilians to shield themselves from Israeli attack. Indeed, there is evidence that Israel's own behavior in this respect was comparable to Hezbollah's. Most important, there does not appear to be any basis for the claim that Hezbollah's use of civilian shields is what explains the high Lebanese civilian casualty toll. Rather, the evidence suggests that that toll is best explained by Israel's indiscriminate use of air power. 2.5

Hezbollah missile attacks against Israel

To this point I have focused on Israeli attacks within Lebanon and Hezbollah's alleged use of civilian shields. I have said very little about

41 Amnesty International "Out of all Proportion: Civilians Bear the Brunt of the War" (21 November 2006) (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR Hezbollah's rocket and missile attacks on Israel, an obviously important issue that must be addressed. First, to be clear, nothing I have said thus far should be taken to imply that Hezbollah scrupulously adhered to the principle of discrimination. It didn't. For one thing, Hezbollah filled many of its rockets with ball bearings, which are arguably designed to maximise civilian casualties. A more fundamental concern is the relatively imprecise nature of the rockets themselves. Though their guidance systems are far from worthless, the rockets are sufficiently imprecise to make it very likely that they will sometimes kill civilians. Human Rights Watch addressed both of these issues in a report released at the end of the war in August: 42 "Lobbing rockets blindly into civilian areas is without doubt a war crime", said Kenneth Roth, executive director of Human Rights Watch. "Nothing can justify this assault on the most fundamental standards for sparing civilians the hazards of war". Some of the rockets, such as those that killed eight rail workers in Haifa on July 16 and two young brothers in Nazareth on July 19, have warheads packed with thousands of metal ball bearings that spray out from the blast. Launched on civilian areas, the ball bearings are intended to inflict maximum harm. Hezbollah claims that some of its attacks are aimed at military bases inside Israel, which are legitimate targets. But most of the attacks appear to have been directed at civilian areas and have hit pedestrians, hospitals, schools, homes and businesses.

The report goes on to detail Hezbollah rocket attacks on Israeli hospitals in Nahariya and Safed that were, according to survivors, far removed from any Israeli military installations or personnel. An Amnesty International report released in September 2006 provides further documentation of the widespread effects of Hezbollah rocket attacks on Israel, and concludes that these attacks were indiscriminate and amounted to war crimes. The report emphasises that Hezbollah's attacks on Israel constitute war crimes independently of the indiscriminate nature of IDF

42 Human Rights Watch "Hezbollah Must End Attacks on Civilians: Rocket Attacks on Civilians in Israel are War Crimes" (5 August 2006) (last accessed 24 August 2007).

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Human Rights Research attacks on Lebanon. It goes on to provide the underlying moral justification for this fundamental principle of international humanitarian law: 43 The fact that Israel in its attacks in Lebanon also committed violations of international humanitarian law amounting to war crimes, including indiscriminate and disproportionate attacks, is not an acceptable justification for Hizbullah violating the rules of war, whether as a deterrent or as a means of retaliation or retribution. The underlying reason for the prohibition on reprisal attacks is plain: civilians and other non-combatants should not be made to pay the price for the unlawful conduct of armed forces. The very concept of violations as reprisal must be emphatically rejected, if the goal of containing the devastation caused by war on non-combatants is ever to be achieved.

Amnesty's justification for the rule that civilians must never be the target of reprisal attacks in war is mainly a utilitarian one, resting on the idea that morality is ultimately about maximising good consequences or – more relevantly in this case – minimising bad ones. And it is true that this rule, if generally adhered to, would minimise or at least significantly reduce 'the devastation caused by war on non-combatants', an undoubtedly worthy goal. However, without questioning in any way the legal applicability of this rule to Hezbollah's attacks on Israel, I wish to highlight some moral complexities that seem to apply to this case. Let me emphasise that the legal implications of these complexities for international laws designed specifically to protect civilians are unclear to me. In particular, I am explicitly not claiming that these complexities show that the law prohibiting reprisal attacks on civilians should be changed. Nevertheless, they seem sufficiently important, and sufficiently likely to be repeated in other cases – to be worth discussing here. To be clear, these complexities arise only if I am correct that Israel was the aggressor and Hezbollah was defending itself in the war. To this one must add the fact of Israel's massive military superiority, as well as the apparent fact that it was determined to strike a crippling blow to Hezbollah by

43 Amnesty International "Under Fire: Hizbullah's Attacks on Northern Israel" (14 September 2006) (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR punishing virtually the whole of Lebanese society and infrastructure. 44 Given these apparent facts, the problem I have in mind can be posed as a question: What, exactly, was Hezbollah supposed to do? How was it supposed to defend itself against a massively more powerful adversary that was apparently determined to strike a crippling blow to much of Lebanon in an attempt to get it to turn against Hezbollah? I don't pretend to have an answer to this question. However, it is worth briefly considering a couple of alternatives. First, there was the pacifist option of not resorting to armed force at all. In retrospect, it is hardly crazy to think that this is what Hezbollah should have done. The argument goes roughly as follows. Surely, world opinion would have turned quickly and overwhelmingly against Israel had it continued to bombard Lebanon in the absence of any armed response. It would have been forced to abandon its air campaign after a few days and the destruction to Lebanon would have been much less than it was. 45 Second, there was the option for Hezbollah not to use rockets and missiles to target Israeli communities, but instead limit itself to trying to eliminate Israeli military forces, including air forces, within Lebanon. It doesn't take much thought to see that neither of these options is very realistic, nor, arguably, very fair to Hezbollah. Though I think the pacifist

44 Recall that Israel flatly refused an attempt by the Lebanese Government to broker a ceasefire shortly after the war started: see footnote 23. Also consider the following assessment by Amnesty International itself, in its August report on Israeli attacks on Lebanon: "The widespread destruction of apartments, houses, electricity and water services, roads, bridges, factories and ports, in addition to several statements by Israeli officials, suggests a policy of punishing both the Lebanese government and the civilian population in an effort to get them to turn against Hizbullah. Israeli attacks did not diminish, nor did their pattern appear to change, even when it became clear that the victims of the bombardment were predominantly civilians, which was the case from the first days of the conflict". 45 One might also point out, in this connection, that Hezbollah leader Hassan Nasrallah publicly declared at the end of August that he would not have ordered the raid on Israeli soldiers had he known that Israel was going to escalate its response in the way that it did: "Hezbollah Leader Nasrallah Regrets War" (28 August 2006) (last accessed 24 August 2007).

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Human Rights Research option has much to be said for it from a moral standpoint, it goes without saying that most people would reject it out of hand. It is also worth recalling Article 51 of the UN charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security …

Thus, any attempt to require a state or non-state entity to adopt a pacifist approach in response to a much more powerful aggressive adversary would have to contend with the fact that it undermines this cornerstone of current international law. The second option – restricting Hezbollah to direct engagement with IDF fighter jets, bombers, and tanks within Lebanon – has perhaps even less to recommend it. Hezbollah is, of course, a guerrilla force. During the war it did not have an air force, nor did it possess anti-aircraft weapons in any appreciable number. It did possess anti-tank weapons, which were apparently responsible for the greatest number of IDF casualties. 46 However, the fact remains that it effectively had no way of countering Israel's chief military strength, namely, its air power. And requiring Hezbollah to defend itself in such a way that guarantees its destruction seems deeply unfair. Again, I think the implications of these moral considerations for international humanitarian law – understood as law specifically designed to protect civilians from the ravages of war – are far from clear. Certainly, one can understand the reasons for not making any exception to the prohibition against targeting civilians in war. Yet, the sorts of moral complexities just outlined cannot, in my view, simply be brushed aside. The law should have some way of taking them into account. The answer, I believe, is to place much greater emphasis on the legal implications of jus ad bellum to begin with. Unfortunately, this is not always easy to do. In particular, there is effectively no legal mechanism, in the real world, for calling to account any of the great powers – those with permanent seats and veto power at the UN Security Council – or their close allies. Needless to say, neither the United States nor Israel has ever been condemned by the UN Security Council for

46 Edward Cody and Molly Moore "The Best Guerrilla Force in the World" (14 August 2006) Washington Post Washington A01.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR committing the war crime of aggression. I am hardly the first to suggest that the structure of the Security Council is undemocratic and fundamentally unjust. In short, the best answer to the moral complexities I have pointed out is probably one that involves structural change to the UN Security Council. Summarising this section, it is clear that Hezbollah's rocket attacks on northern Israel count as serious violations of international laws of war. I do not wish to say that such attacks were justified, given their indiscriminate nature. However, other facts surrounding the case point up moral complexities that, in my view, are obscured by the simple judgment that Hezbollah's rocket attacks constitute war crimes – particularly when nothing else is said about the matter. As noted, I am not sure what implications these complexities have for international law specifically designed to protect civilians in war. However, I think they provide additional support to the already plausible idea that the UN Security Council should be made more democratic and accountable to all of its members. 2.6

Other aspects of the principle of discrimination

The scope of the principle of discrimination is wider than the concern for civilian casualties, and it must be emphasised that there was a vast disparity in damage done to civilian targets generally by the two sides in the war. Hezbollah's rockets, though they landed in most major cities and towns in northern Israel, did limited damage to civilian infrastructure. They also did not hit Tel Aviv, despite the fact that Hezbollah probably had the capacity to do so. Israel, on the other hand, did massive damage to civilian infrastructure throughout the whole of Lebanon. The United Nations Development Programme has estimated that some 35,000 Lebanese homes and businesses were destroyed by the Israeli military, as well as one quarter of the country's road bridges and overpasses. Total damage within the country exceeded US $15 billion. 47 As of 1 December 2006 there were still 200,000 internally displaced refugees within Lebanon. 48

47 "2006 Israel-Lebanon Conflict" in Wikipedia (last accessed 24 August 2007). 48 United States Agency for International Development "Humanitarian Assistance to Lebanon" (24 January 24 2007) (last accessed 24 August 2007).

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Human Rights Research Other criteria generally included within jus in bello tend to reinforce the importance of the principle of discrimination. In the present case, they also tend to reinforce the claim that Israel's conduct in the war was morally inferior to Hezbollah's when measured against this principle. Consider, for instance, the rule that certain weapons are prohibited because they are indiscriminate in their effects. I have already mentioned Hezbollah's use of ball bearings in its rockets, which are likely prohibited under this rule. Israel, however, made extensive use of at least two even more objectionable weapons that are also likely prohibited under this rule. One of these was white phosphorus munitions, which cause severe burns and are often classified as a chemical weapon. There is good evidence that Israel used these against Lebanese civilians, contravening international law. 49 More deadly yet was Israel's widespread use of cluster bombs, which are comparable to land mines in their propensity to kill innocent civilians. These were used throughout the conflict by Israel. In the last few days of the war before the ceasefire, Israel fired some 1800 cluster bombs, spraying millions of bomblets throughout southern Lebanon. These continue to kill Lebanese civilians, especially young children, to this day. 50 Finally, in addition to the extensive damage that Israel wreaked upon Lebanese infrastructure, it also was responsible for a major environmental catastrophe: its bombardment of Lebanese oil reserves caused an oil slick in the Mediterranean three times larger than that of the Exxon Valdez in 1989. 51 Summarising this second section, I have argued that although neither Hezbollah nor Israel conducted their war in a way that came close to meeting

49 Amnesty International "Israel/Lebanon: Israel and Hizbullah Must Spare Civilians: Obligations under International Humanitarian Law of the Parties to the Conflict in Israel and Lebanon" (26 July 2006) (last accessed 24 August 2007). 50 See Patrick Cockburn ''Deadly Harvest: the Lebanese Fields Sown with Cluster Bombs" (18 September 2006) Independent London (last accessed 24 August 2007). There is also evidence that Hezbollah used cluster munitions in a few of its rockets. 51 Nimrod Halpern "Lebanese Oil Slick Three Times Larger than Exxon Valdez" (15 October 2006) Haaretz (last accessed 24 August 2007).

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR the criteria of jus in bello, Israel's conduct in the war was morally more culpable in this regard. It killed a far higher number of civilians and a far higher ratio of civilians to soldiers. It caused widespread destruction to Lebanese infrastructure. And it was responsible for a major environmental catastrophe within Lebanon. Moreover, Israel's main defense against these claims – that the high Lebanese civilian casualty toll was the result of Hezbollah's use of 'civilian shields' – is unsupported by the evidence. Indeed, there is evidence that Israel's use of civilian shields was comparable to Hezbollah's. Taken together, and particularly considered in light of the fact that Israel was the aggressor in the war, these claims show that the mainstream moral account is mistaken on the question of jus in bello. 3

Intentions and proportionality, again

Doubtless some readers will think that I have yet to address perhaps the most important issue pertaining to the morality of the war, and I would like briefly to consider it before concluding. I refer to the alleged fact that Hezbollah, like other of Israel's enemies, ultimately intends its destruction. This is meant to contrast with Israel, which is supposedly committed to living alongside its neighbours in peace if only the latter would return the favour. Walzer gives voice to this concern: "Israel is now at war with an enemy whose hostility is explicit, extreme, unrestrained, and driven by an ideology of religious hatred". 52 Across the mainstream, it is virtually taken for granted that Hezbollah, like the Palestinian group Hamas and others, is committed to Israel's destruction and will stop at nothing to accomplish this goal. This alleged existential threat is also relevant to the issue of proportionality, particularly with respect to the question of jus ad bellum. Presumably, it is what Israeli foreign minister Tzipi Livni had in mind in responding to the criticism that Israel's military actions against Hezbollah were grossly disproportionate: "Proportionality is not compared to the event, but to the threat, and the threat is bigger and wider than the captured soldiers [that provided the immediate trigger for the war]". 53

52 Walzer, above n 3. 53 See T Nadelhoffer "Lack of Proportionality?" (last accessed 24 August 2007).

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Human Rights Research Addressing this claim about ultimate intentions is well beyond the scope of this paper. However, a few comments may be in order. First, Hezbollah is a reasonably large organisation with considerable popular support and representation in Lebanon's parliament. As noted above, it came into existence in the wake of Israel's 1982 invasion of Lebanon. It would be surprising indeed if many of Hezbollah's members did not see its primary military purpose as one of legitimate defense against Israeli aggression. If this is correct, then Walzer's claim that Hezbollah is "driven by an ideology of religious hatred" is, at best, a gross over-simplification. Second, even granting that Hezbollah harbours malign intentions toward Israel, it can be pointed out that a rather similar claim has been made about Israel itself. In particular, it is fairly common within academic scholarship – if not the mainstream media – to conceive of Zionism as a form of ethnic nationalism with an expansionist agenda. 54 The prime target of this presumed ideology has been the Palestinians, 750,000 of whom were driven from and/or fled their land in 1948, and – denied the right to return to their homeland for the past 60 years – millions of whom survive either in refugee camps or under Israeli occupation in the West Bank and Gaza. If correct, this suggestion about the ethnic-nationalist and expansionist ideology of Zionism is hardly irrelevant to the recent war. There is evidence, for instance, that Zionist and Israeli leaders have traditionally seen southern Lebanon as falling within the final borders of Israel. 55 And, given Israel's military actions toward Lebanon over the last few decades, one can hardly dismiss such ideology as mere talk. Nor can it be claimed that such hostile Israeli attitudes and intentions belong only to the remote past. The current Olmert government, for instance, has appointed the ultra-rightist Avigdor Lieberman, an avowed advocate of 'transferring' most of the Palestinian population – including Israeli Arabs who refuse to sign an oath of loyalty to

54 See, for example, Benny Morris Righteous Victims: A History of the Zionist-Arab Conflict, 1881-2001 (Vintage Books, New York, 2001) 676 and following; Tom Segev One Palestine Complete: Jews and Arabs Under the British Mandate (Henry Holt and Co, New York, 2000) 104-09; Ilan Pappe A History of Modern Palestine (Cambridge University Press, Cambridge, UK, 2004) 72 and following. 55 This view dates back at least to 1919, the year in which the Zionist Organisation presented a map at the Versailles Peace Conference that envisioned the northern border of a prospective Jewish state at the Litani River: Morris, above n 54, 494.

MAKING MORAL SENSE OF THE ISRAEL-HEZBOLLAH WAR Zionism – into Jordan, as its Minister of Strategic Threats. 56 Israeli Miko Peled has put the fundamental point well: "[C]urrent Israeli policy towards the Palestinians is an extension of the ethnic cleansing policies of the early years of the conflict". 57 Arguably, much the same can be said about current and recent Israeli policy toward southern Lebanon. Thus, even on the assumption that Hezbollah harbors malignant intentions toward Israel, there is credible evidence to suggest that Israel harbours similar attitudes toward Hezbollah, amongst other Arab groups in the region. So the familiar refrain that Israel uniquely faces dangerous enemies does not hold water: groups such as Hezbollah can and do say exactly the same thing about Israel, not without reason. More to the point for present purposes, the refrain is a non-starter for justifying Israel's recent war against Hezbollah. The claim that Hezbollah intends Israel's destruction, considered on its own – that is, apart from whether it has acted on such an intention, whether Israel harbours similar intentions and has acted on them, etc – does not provide Israel with a just cause for going to war; nor can it justify Israel's conduct during that war. The main conclusions of this paper stand regardless of the truth of the contentious claim in question. 4

Conclusion

My focus in this paper has been on the moral issues surrounding the IsraelHezbollah war. I have adopted the framework of just war theory, which forms the moral basis of contemporary international law governing war, including the so-called Law of Armed Conflict. As noted at the outset, the plausibility of the mainstream moral account bears directly on the question whether central elements of international law have been violated, and, if so, by whom. In concluding, it may be worth re-emphasising these connections. First, I have argued that Israel counts as the aggressor in the war for the purposes of determining jus ad bellum, or the question of which side had just

56 Ben Lynfield "The Rise of Avigdor Lieberman" (14 December 2006) The Nation (last accessed 24 August 2007). 57 Miko Peled "The Answers have Changed" (10 January 2007) Znet http://www.zmag.org/content/showarticle.cfm?SectionID=107&ItemID=11822 (last accessed 24 August 2007).

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Human Rights Research cause in going to war. If I am correct, there is excellent reason to think that Israel violated the Charter of the United Nations, Article 2 (4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Second, I have argued that although both Israel and Hezbollah were guilty of war crimes with respect to the way they conducted themselves during the war, Israel's conduct was, morally, more culpable in this respect. In particular, I have argued that the great disparity in civilian casualties between the two sides is best explained by Israel's indiscriminate and disproportionate use of force in its aerial bombardment of Lebanon. Related, the reports of the major human rights groups do not support Israel's claim that the large Lebanese civilian casualty toll is explained by Hezbollah's use of 'civilian shields'. As I have argued, the international legal implications for the fact that Israel's conduct was morally more culpable than Hezbollah's are not clear with respect to international humanitarian law – that is, law designed specifically to protect civilians in war. Considered in isolation – that is, apart from the question of which side was the aggressor in the war – the best thing to say about these legal implications may be that Israel's crimes were more extensive than Hezbollah's: they differed in degree if not in kind. However, I have tried in this paper to take a wider view, one that emphasises the priority of questions of just cause over questions of just conduct. Given this wider perspective, I believe the proper focus in thinking about the morality of the war should be on Israel's act of initial aggression. Its more extensive violations of the laws of war should be viewed in the context of this centrally important fact. As suggested, the most important international legal implications of the present argument probably lie with the decision-making structure of the UN Security Council itself. 58

58 I would like to thank Josh Glasgow for very useful discussion on an earlier draft of this paper.