Vol. 4, No. 8 November 25, 2004
When the IDF updated its military doctrine in 2003, Prof. Asa Kasher, Professor of Professional Ethics at Tel Aviv University, joined me on an ethics committee to craft principles on how to make moral and ethical decisions in Israel’s operational campaign against terror.
As we sought to formulate how to fight terror, we understood that the main asymmetry is in the values of the two societies involved in the conflict – in the rules they obey. We are fighting with a people that have totally different values and rules of engagement.
How do we differentiate between terrorists and non-terrorists? Everyone who is directly involved in terror is a legitimate target. Those who are indirectly involved in terror are not a legitimate target.
Some asked if the collateral damage was producing future terrorists. We found that because of the level of incitement, the collateral damage only raised public support for terror from 95 to 96 percent.
In August 2002 we had all the leadership of Hamas in one room and we knew we needed a 2,000-pound bomb to eliminate all of them. Think about having Osama bin Laden and all the top leadership of al-Qaeda in one house. However, use of a 2,000-pound bomb was not approved – we used a much smaller bomb – and they all got up and ran away.
We should do the job at the checkpoints ethically, professionally, and as fast as we can because we have to care about the many times the ambulance is really carrying somebody who needs help.
The bottom line is that Israel has to fight terror because terror declared war on us. In the current war Israel has lost over 1,000 people – equivalent to the U.S. suffering 45,000 dead and 300,000 wounded. We can win, but we must do it ethically as the Jewish people, as a democratic state, and as IDF officers who respect our ethical profession.
Updating the Concept of War
The IDF found it necessary to update its military doctrine in 2003 in light of changing threats to Israel’s security. While we were prepared for traditional war, a war in which tanks fight tanks, planes fight planes, and infantry fight infantry, we needed to update our doctrine to include threats from ballistic missiles, weapons of mass destruction, and terror – in which the fighting has no clear front where armies meet.
As part of that updating, Prof. Asa Kasher, Professor of Professional Ethics at Tel Aviv University, joined me on an ethics committee – comprised of field commanders, brigade commanders, division commanders, philosophers, even a lawyer – to craft principles on how to make moral and ethical decisions in Israel’s operational campaign against terror.
As we sought to try and formulate how to fight terror, we understood that we were in a different kind of war, where the laws and ethics of conventional war did not apply. It involves not only the asymmetry of tanks hunting against guerilla fighters or airplanes chasing terrorists. The main asymmetry is in the values of the two societies involved in the conflict – in the rules they obey. This is not a war between the U.S. and Russia or Germany and France, where the international rule of law is accepted by both sides. In this case, we are fighting with a people that have totally different values and rules of engagement.
In postmodern warfare, every fundamental concept of war has changed. First, who is the enemy in this case? Normally, a state is the enemy, or a well-defined organization such as the PLO. In this war, no state or organization is accountable. Second, wars in the past happened at the front line. Suddenly there is no defined front, no defined border. The terrorists are all over. What kind of rules are we to take into consideration when we plan an operation when there is no border? Third, who are the combatants? Are they soldiers with uniforms? The basic law of a just war was based on the assumption that one has to differentiate between those who fight and those who are non-combatants. There are rules of engagement based on the idea that it is possible to differentiate between the two. In the case of terrorists, however, civilians are killing civilians.
The Definition of Victory
Finally, what does it mean to win such a war? Is it putting a flag on a hill? Is it conquering territory? Is it destroying the enemy’s divisions or airfields? To answer this question, it is necessary to understand the rationale of the other side.
In the current war Israel has lost over 1,000 people. This is equivalent to the U.S. suffering 45,000 dead and 300,000 wounded. This is more than Israel lost in the Six-Day War, a “real” war. At the start, all of Israel’s strategic criteria were declining: no economic growth, no newcomers, no tourists, no hope in the hearts of people, no light in their eyes. But today the economy is growing, we see tourists arriving again, we see that people are getting back to their normal lives. This is the meaning of victory, in this case.
New Ethical Rules for the Counter-Terrorism War
A new model of warfare – the counter-terrorism war – requires a new set of rules on how to fight it. The other side is fighting outside the rules and we have to create new ethical rules for the international law of armed conflict, in keeping with the traditional IDF concept of “the purity of arms.”
Terror is easier to fight in non-democratic states. King Hussein used a lot of force in 1970, with no supreme court, and without being exposed to the media, and terror stopped in Jordan. In 1982 in Hama, Syrian President Assad killed 30,000 people and he got rid of Islamic fundamentalist terror. Yet Israel cannot use these means; we have to do it in an ethical way.
Our job is preventing terror. Yet we face a tragic dilemma. Whatever we decide when fighting terror, some innocent people are going to get hurt. On the one hand, there are the Israeli citizens that the terrorists want to kill. On the other hand, the terrorists are hiding behind innocent civilians. It is very important when people’s lives are at stake that there is a moral understanding and precise rules for moral conduct.
The duty of the state is to defend its citizens. Any time a terrorist gets away because of concerns about collateral damage, we may be violating our main duty to protect our citizens. We look for alternatives so as not to cause collateral damage, or to cause the minimum amount of collateral damage, but the main obligation is to defend our citizens. We also have an obligation towards the citizens on the other side who are under our effective control. We have an obligation to hit the terrorists. And we have an obligation toward our soldiers, to protect their lives. Who should be our first priority?
We decided we have two separate obligations to the citizens on the other side. Those who are under our effective control are almost like our citizens. When we are in a position to arrest the terrorists, there is no need for a targeted interception. But in Gaza, which is controlled by the terrorists, many people will be killed on both sides when trying to arrest a terrorist. In such a situation, interception becomes much more efficient and a more ethical choice in this case.
Under the international law of war, military necessity justifies almost everything. Yet Israel has limited its right to invoke military necessity by requiring additional conditions, including: Purpose – that the action is really helping to defend our citizens; Intelligence and Proof – that what we are doing is really saving the lives of people in Israel; Effectiveness – that if there is going to be a lot of collateral damage we have to look for another alternative.
We did not tailor this ethical code just for the IDF in its war against Palestinian terrorists. We think this code is good for the Americans or for the Russians when they are fighting terrorists – it fits any kind of hypothetical counter-terrorist scenario.
Differentiating between Terrorists and Non-Terrorists
How do we differentiate between terrorists and non-terrorists? International law says one may target any soldier. Today, everyone in Israel will agree that one is allowed to kill someone carrying a ticking bomb. But where do we draw the line? We know that everyone on the other side who belongs to a certain mosque may support terror because in that mosque they are inciting to terror. Everyone on the other side who watches Palestinian TV may support terror because the entire Palestinian media is supporting terror. Is it legitimate to attack them? No.
We have to learn who belongs to the operational terror chain, which includes the suicide bomber, the one who produces the explosives, and the driver. Everyone who is directly involved in terror is a legitimate target in this war on terror. Those who are indirectly involved in terror are not a legitimate target. The one who brings in money to the Hamas charity in Nablus, who is indirectly involved in terror, will be arrested by the legal system and not targeted by a military action. The same holds for the preacher in the mosque who says that all Jews are pigs and monkeys.
The principle of liability also comes into consideration. How liable is it that someone who has committed ten suicide bomber deliveries will do the eleventh? Until he announces his retirement from the terror attack business, he is on the list based on liability. If he retires, the legal system will take care of him, not the military.
Deterrence is also a principle to be considered. If Israel is seen to be targeting every terrorist, this tells the terrorists that they have to worry about being terrorists.
In the case of preventive action based on liability or deterrence, since the prevention of imminent threat is not as clear, the bar of collateral damage is much higher. We are not allowed collateral damage when we are operating based on liability or deterrence.
The principle of proportionality in Israel’s actions is based on the amount of danger: How imminent? How great is the threat? Is it mega-terror? Is it a weapon of mass destruction? Is it chemical terror?
Some members of the committee asked if we weren’t creating wonderful rules of engagement for fighting terror, but that the collateral damage was producing future terrorists. We looked very seriously at this issue of the long-term consequences of operations against terror and found that because of the level of incitement, the collateral damage only raised public support for terror from 95 to 96 percent, and not from 30 to 90 percent.
Nevertheless, we decided that from an ethical point of view, whenever possible, we must give early warning to those who are living around terrorists. Sometimes from an operational point of view this will cancel the operation because the terrorist whose neighbor is being warned will disappear. This is balanced on a scale and, if the threat is not imminent, a decision is sometimes made to let the terrorist run away and look for an opportunity to target him in a place where there will be no collateral damage.
Targeting the Dolphinarium Bombing Planner
The case of Salah Shehada, the head of the military arm of Hamas, is a prime example of ethical concerns in decision-making. Shehada planned terror attacks in Israel, including the attack on the Dolphinarium discotheque where twenty-one teenagers were killed, and he was in the process of planning a “mega-attack.” We knew that if we hit him, the mega-terror process would stop because he was the mind behind it, the planner, the one who was really pushing the button. Shehada was always surrounded by innocent people until one night in July 2002 we found him almost alone, and we delivered a 2,000-pound bomb on his apartment and he was killed. Unfortunately, the intelligence about those in the surrounding buildings was wrong, and innocent people were killed. Yet when the decision was made, it was the right decision from an ethical point of view because the scale included a mega-attack threatening the lives of hundreds of Israelis, balanced against a terrorist with some collateral damage. But in this case the collateral damage was too high.
A month later, in August 2002, we had all the leadership of Hamas – Sheikh Yassin and all his military commanders, all his engineers, all the minds of terror – in one room in a three-story house and we knew we needed a 2,000-pound bomb to eliminate all of them – the whole leadership, 16 people, all the worst terrorists in the world. Think about having Osama bin Laden and all the top leadership of al-Qaeda in one house. However, due to the criticism in Israeli society and in the media, and due to the consequences of innocent Palestinians being killed, a 2,000-pound bomb was not approved and we hit the building with a much smaller bomb. There was a lot of dust, a lot of noise, but they all got up and ran away and we missed the opportunity. So the ethical dilemmas are always there.
The chief of staff is always asking, “Bring me an operational plan that will endanger fewer civilians around the terrorist.” This is an important principle: We never target civilians. They kill our civilians but we will not kill theirs as a punishment. We are always targeting terrorists on their way to do us imminent harm. The dilemma is that the terrorists are within these civilians.
Closing Weapons Tunnels in Rafiah
The IDF operation earlier this year in Rafiah in which the army had to eliminate Palestinian homes because of the weapons tunnels raised some very difficult ethical dilemmas, but there were good solutions for them. There was good intelligence about smuggling weapons with a new scale of capabilities that would change the whole situation in Gaza. We had a situation where the citizens of Israel in Sderot and even Ashkelon would be under the threat of katyusha rockets like the Hizballah has in southern Lebanon. On the other hand, there were houses in places where we knew the tunnels led to.
Let us remember that the entire Philadelphia corridor along the Egypt-Gaza border is Israeli territory in an area three hundred meters wide, according to an international agreement between Israel and Egypt. Israel never imposed its authority all the way to three hundred meters because there were Palestinians living there. As long as everything was under control, Israel agreed to PA authority in these areas within the corridor, which in practice narrowed to seventy meters in some places. But now there is war there. Terrorists are shooting from the houses of civilians at IDF forces and, according to the Geneva Convention, one is allowed to shoot at a house where gunfire originates, even if there are civilians inside. So what do you do?
On the one hand, we had to deal with the terrorists and look for the tunnels. On the other hand, we had to avoid collateral damage or hitting the civilians. So first of all we applied the principle of warning. We warned the civilians that they had to leave because the terrorists were there.
We had to make every attempt to move them before the fighting began. Two soldiers paid with their lives because they were trying to help a Palestinian old lady get some water and Palestinian snipers killed them. Think about the commander who has to go to the parents of the soldiers and tell them that because of ethical issues they helped this old lady but your son is dead because of it. It’s an awful dilemma.
Israel’s Security Fence
Everyone can see that where the anti-terror fence was built, the number of terror attacks in the area facing it dropped almost to zero. One of the reasons terror has declined is due to the fence which closes off the ease of getting into Israel’s cities. In addition, closing the border between the Palestinian area and the State of Israel freezes the situation and it becomes easier for intelligence to trace the movement of operational members of Hamas and Islamic Jihad.
Steps to Protect the Innocent
The ethical dilemma is easily solved when the intelligence is very clear about a suicide bomber coming. But how do we balance this at a checkpoint used by 1,000 people every day and there is only one terrorist every week?
The indignity, suffering, and waste of time for innocent Palestinians presents a moral dilemma. But even if the probability is low of a terrorist appearing, this is not negligible when human life in big numbers is at stake.
But we must behave ethically. We can check an ambulance in two minutes instead of two hours. But we have to check it because the Palestinians have taken advantage of this and in the past have hidden explosive belts and terrorists in ambulances. We should do the job at the checkpoints ethically, professionally, and as fast as we can because we have to care about the many times the ambulance is really carrying somebody who needs help.
The IDF is very sensitive to humanitarian issues. On the other hand, most of them can be corrected in the future. Even the refugee camp in Jenin is now rebuilt. But those young, sixteen-year-old girls that were killed in the discotheque, or the 1,000 people who were killed in Israel, will never be brought back to life. There are another 10,000 people who are now handicapped. Did we destroy too many houses in Rafiah to find the tunnels and stop the Palestinian terrorists who were shooting at us? We can rebuild them when peace will come. From an ethical point of view, I think we did the right thing.
The bottom line is that Israel has to fight terror because terror declared war on us. We can win, but we must do it ethically as the Jewish people, as a democratic state, and as IDF officers who respect our ethical profession.
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Maj. Gen. Amos Yadlin became Israel’s military attache in Washington on August 23, 2004. Formerly head of the IDF National Defense College and deputy commander of the Israel Air Force, he participated in the bombing of the Iraqi nuclear reactor. Gen. Yadlin headed the IDF team that outlined the principles of the war against terror. This Jerusalem Issue Brief is based upon his presentation at the Institute for Contemporary Affairs in Jerusalem on June 23, 2004.