Firepower and the Rules of War

As I commented in my last post, every time Israel (or, for that matter, the United States) causes serious collateral damage with its firepower, the defense is always the same. It is the other side's fault for hiding among civilians, which is a war crime.

George Bush's arguments about unlawful combatants are different, but related. He argues that our adversaries in Afghanistan and Iraq are "unlawful combatants" and therefore not entitled to any of the protections under the laws of war. He even identified the Taliban as unlawful when we first invaded Afghanistan, even though they were, for all intents and purposes, the Afghan national army. The reason: they weren't wearing uniforms.

Both arguments do rely on the accepted rules of war. Those rules call for a sharp distinction between military and civilian to limit the scope of fighting to armies and protect civilians. For instance, soldiers are required to wear uniforms so that their adversaries will know who is and is not legitimate to kill. Military installations must be kept apart from civilian areas and clearly marked as such. And, of course, a wide range of protections are in force for non-combatants.

These rules, when followed, do limit the scope and brutality of war. But they contain an unstated but loaded assumption -- that war is and should be a duel of firepower. The unstated but implied preference for this type of war can be found everywhere. Some collateral damage as a result of firepower is tolerated. Requirements that military installations be kept away from inhabited areas are attempts to limit such damage, but it is assumed to be inevitable. Soldiers are encouraged to fight out in the open, away from civilians. Heavy artillery, tanks, trenches and the like are considered legitimate forms of warfare. And so forth.

The effect of these rules is to limit collateral damage, but also to privilege armies with high firepower over ones without. Consider how they look to a party with low firepower. These rules require a low firepower combatant to put on uniforms and march openly against an army with firepower enough to cut them to shreds. They require a group like Hezbollah or Hamas to mark its military installations as easy targets despite not having an airforce or anti-aircraft guns to protect them. Quite simply, they make taking on an enemy of vastly superior firepower suicidal. Or, alternately, they brand such an attempt as illegitimate. It is pointless to be shocked or morally offended when a weaker power refuses to accept the options of submission or suicide.

The response of a weaker power to a stronger one is old and long-established -- guerrilla warfare. Guerrilla warfare rejects the clear military-civilian dichotomy and instead does its best to blur the distinction. Guerrillas do not wear uniforms. They intermingle with civilians, attacking by surprise and ambush. They hide their weapons and outposts in the civilian population. They involve the entire population in the war. And when regular armies dismiss all this as a war crime and respond with firepower, the result is extremely brutal.

My own belief is that it is both pointless and immoral to simply dismiss such behavior as a war crime and insist that weaker adversaries make the choice between suicide and submission. It is better, instead, to recognize their tactical logic and try to reason from there to a moral logic. Guerrilla warfare operates by rejecting the military-civilian dichotomy. The best measure, therefore, of a guerrilla army's moral legitimacy is the lack of such a dichotomy. Or, as the best-known guerrilla theorist put it, "The people are like water and the army is like fish." A guerrilla army's moral legitimacy can but judged on how friendly the "water" is to the "fish."

For instance, an organization like the Fedayeen Saddam, that had no basis in the population but merely hid among them and intimidated them, do not have such legitimacy. They followed neither the conventional rules of separating from civilians to protect them from conflict nor the informal guerrilla "rules" of blending seamlessly into the population and relying on their support. The Fedayeen Saddam's quasi-guerrilla tactics may fairly be called a war crime. Many Iraqi insurgents were something different altogether. Indeed, in the early phases of the insurgency it was almost a cliche that a US patrol knew they were about the be ambushed because the streets would suddenly be empty. This meant that the insurgents had tipped off the locals and warned them to stay inside. That is the mark of a guerrilla force with a strong basis in the population, doing its best (in its own way) to minimize civilian casualties. Hamas and Hezbollah have both proven their legitimate base in the population by winning elections. They, too, have fish-in-water sort of legitimacy.

None of this is to deny that "legitimate" guerrilla forces can commit war crimes. Of course they can. The Mahdi Army, for instance, certainly had the support of the Shiite population in the areas where it was based, but it committed frightful atrocities against neighboring Sunnis. Mass murder, intentional killing of civilians, torture and the like are war crimes regardless of who commits them. Guerrilla armies are notorious for their cruelty and brutality toward people who oppose them. And nearly all guerrillas fighting civil wars (as opposed to resisting foreign invaders) commit serious war crimes. My point is not to glorify irregular forces but argue that guerrilla tactics should not in and of themselves be regarded as war crimes.

So, I have made the argument when "unlawful combatants" should be considered lawful. The next question is how to deal with them. That is a thorny matter, and one I do not pretent any competence to address. It is, however, the subject of all counterinsurgency doctrine.

Evil Intention versus Firepower, Redux

The sense of deja vu is incredible. In this war, as in the last, Israel is pounding its neighbor to smithereens while a hidden antagonist fires aimless rockets to terrorize Israelis. But even more similar are arguments in defense of Israel, which sound so similar then and now that one could simply replace Hezbollah with Hamas and Lebanon with Gaza and reprint the arguments without further change.

There is no moral equivalence between Israel and its adversary, goes the argument then and now. Israel's adversary is deliberately firing rockets with the intent to kill and terrorize innocent civilians. (The fact that those rockets are of such poor quality as to cause minimal damage goes unmentioned). Israel is retaliating against solely military targets. The fact that its far heavier fire power is causing collateral damage is the fault of its adversary for hiding its military infastructure among civilians.* The intent to kill civilians is what really matters. The fact that Israel has, in fact, killed a great many more civilians than its adversary is a trivial detail.

Well, I am no philosopher or theologian, but it is my understanding that this set of priorities is contrary to traditional Jewish ethics. In traditional Jewish ethics (as I understand it), when there is a discrepancy between an actor's subjective motives and the actual objective results of that actor's actions (meaning the immediate, highly predictable result and not some remote and highly contingent result happening in the distant future), the actual objective results are the more important. Hence, as I understand Jewish ethics, if an enemy intends you mortal harm but lacks the means to act on that intent, you have to take that lack of means into account. And if you are retaliating with heavy firepower, not intending to kill any civilians, but using your firepower in a way certain to do just that, you get less credit for not wanting to kill civilians than blame for the civilians that you actually (and most predicably) do kill.

And even if I am mistaken about the traditional rules of Jewish ethics, these seem like pretty good rules for public policy.

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*More on that in my next post.

Hamas: Hezbollah Redux?

So, now that Israel has begun a ground offensive into the Gaza in response to Hamas rockets fired at Israel, the obvious question is whether this will this be a repeat of the 2006 war against Hezbollah. I believe the overall war will be similar but, unlike the 2006, there is not a stable and basically acceptable status quo ante to return to. This may make for some variation.

So far the script has been remarkably familiar. Hamas/Hezbollah fires rockets at Israel that are alarming but do limited damage. Israel responds with a much heavier bombardment of Lebanon/Gaza, but fails to stop the rockets. Israel invades and meets with resistance. In both cases, Israel is trying to militarily root out an organization so deeply intertwined with the local population that can be removed only by all-out ethnic cleansing. In both cases, both Israel and its supporters appear to be willfully blind to this uncomfortable reality.

The difference is in military capacity. Although Hamas has presumably had time to build up its forces while it power, it is still not as formidable a fighting force as Hezbollah. Although all paramilitaries in the Middle East now aspire to be Hezbollah, it takes a lot of time, practice and training to build a force of that caliber. Hezbollah is a highly disciplined, secretive force with quality arms, an eleborate physical infrastructure of underground bunkers and communications networks, and a command structure as tight and centralized as a conventional army. Hamas is a shoddy, amateurish organization by comparison.

This is bad news -- for Hamas and for Israel (to say nothing of the long-suffering people of the Gaza). It is bad for Hamas and the people of the Gaza because it means that they cannot offer sufficient resistance to deter any future Israeli attacks. It is also bad for Israel because it means that they do not have a strong enough authority to make a deal with.

And, although hawkish types may not like to admit it, Israel can and has made successful deals with Hezbollah. During the prolonged guerilla warfare while Israel occupied southern Lebanon, the sides had a tacit agreement. Hezbollah would limit its fighting to north of the border and not fire any rockets into Israel, and Israel would not bring the full force of its firepower to bear on Lebanon. From Israel's withdrawal in 2000 until the 2006 war, both sides maintained a quiet truce. During the 2006 war, when a 48 hour aerial cease-fire was ordered, it was mutually observed. And since the end of the war, the two sides have kept their peace. And, significantly, during the current war on the Gaza, Hezbollah had staged rallies and made threatening noises, but it has not fired any actual rockets into Israel, no doubt because it learned the hard way the sort of retaliation Israel is capable of. These silent deals have held despite Hezbollah's stated dedication to the destruction of Israel because Hezbollah understands what its fate will be if it actually tries to destroy Israel and has a strong enough central command to ensure that there are no rogue elements who do not understand.

I believe Hamas, which now holds the responsibilities of government of Gaza, is generally rational enough to prefer foregoing its stated commitment to the destruction of Israel over facing the sort of destruction Israel is capable of unleashing. But it is by no means clear that Hamas has that type of control and can reign in its rogue elements. Thus the sort of modus vivendi Hezbollah has reached with Israel does not appear possible. Depending on how far Israel is willing to go, this leaves four options.

Option 1: Israel can repeat its experience in Lebanon -- launch a punitive expedition and withdraw. As with Hezbollah, Hamas is too deeply entrenched to be rooted out by a punitive expedition. As with Hezbollah, this will mean a return to the status quo ante. The difference is that the situation in southern Lebanon was generally acceptable to both sides. Hezbollah was control of southern particular with no interference and therefore had reason to want to attack Israel, and northern Israel could function perfectly well next door to Hezbollah. On the other hand, the status quo ante in Gaza was utterly unaceptable to either side. Gaza was under blockade by Israel and Egypt with conditions gradually deteriorating. Hamas regularly fired rockets at southern Israel and made normal life there impossible. Thus a return to that situation will not be stable. Israel appears to hope that if it inflict enough pain and/or seizes enough weapons, it can deter further attacks, as it was able to do with Hezbollah. But Hamas will have a constant incentive to attack Israel so long as the blockade remains in place. Nor is it clear that Hamas is strong enough to prevent the rocket attacks (see above).

Option 2: Israel can go for regime change. It can remove Hamas from power and install a more compliant government. The Israelis have denied such an intent, presumably because they recognize it cannot be stable. Any government installed by Israel will be seen as collaborationist and have very little popular support. Hamas, in the mean time, had entrenched itself well and will certainly resist. Without Israeli troop to support their puppet, Hamas will simply take back power, and things will return to where they were before.

Option 3: Israel can re-occupy Gaza and place it under military occupation. The trouble is, of course, that Israel originally withdrew from Gaza because this was not working very well. Israel will reoccupy Gaza with comparative ease and then find itself facing escalating guerrilla resistance, just like the US in Iraq, Ethiopia in Somalia, Israel during its first invasion of Lebanon, etc, etc. All evidence is that the Israeli government understands this, because it has disclaimed any intent to reoccupy the Gaza.

Option 4: Israel can go for all-out ethnic cleansing. In 2006, Israel did sometimes appear to be seeking to drive the entire population from southern Lebanon. It dropped leaflets warning people to flee and then indiscriminately bombed. Ethnic cleansing failed in southern Lebanon because in order to keep the Shiites from simply moving back, someone else would have to move in. It would be pointless for Israelis to move in because Hezbollah would have continued to attack any such Israeli settlements and the quarrel would not be ended, but merely moved 30 miles north. And no one else was going to volunteer to be a buffer.

So far there is no evidence Israel is attemting anything so drastic in Gaza. It has shown greater restraint so far, presumably knowing there is nowhere for the residents to go. It is true that if Israel forced the residents of Gaza into Egypt, many Israelis would be happy to move into the Gaza strip, and the government of Egypt could reasonably be expected to be strong enough to keep Hamas from attacking Israel. But, of course, Egypt is hostile to Hamas and would therefore not be willing to accept displaced Gazans. That rules out ethnic cleansing. And even if Israel did undertake such a drastic action, it would somehow have to finish the job by January 20, when Barack Obama becomes President and (presumably) would not let it go that far.

In short, the current conflict resembles the 2006 war in that Israel is cannot succeed militarily except by extremely drastic measures that the international community will not allow. It differs in that there is no basically acceptable status quo ante to return to. Which leaves only one final, desparate measure. Diplomacy.

Further Reflection on Torture and "Public Necessity"

I should add a qualification to my post on torture and necessity. It overlooks a critical legal distinction. The affirmative defense of necessity generally applies in cases of "private" necessity. The lost hiker breaking into a cabin in a blizzard, the convict escaping a cell on fire, the Katrina looter and so forth are acting out of necessity for their own personal protection, or, at most, the protection of a few family members or friends. Public necessity is a different matter.

Public necessity is the act of someone, usually a government official, taking necessary action to protect the general public, such as a firefighter destroying a house to prevent the spread of a forest fire, police damaging a private house to capture a criminal holed up inside, or, for that matter, the Air Force if it had shot down United 93 to prevent it from hitting its target. Generally speaking, public necessity is not an affirmative defense, but a grant of immunity. In other words, the public officials undertaking these acts would escape prosecution altogether because they were acting in an official capacity. Clearly this is not what I am advocating in the case of torture.

However, this should not be an insurmountable obstacle. The privilege only extends so far. Police are, after all, sometimes prosecuted for shooting people, even in their official capacity. I would therefore propose an absolute ban on torture, with no immunity for public necessity, but with an affirmative defense of necessity in such cases.