INTO THE FRAY: Defending Israel—Civilian casualties and common sense

For your perusal, my latest INTO THE FRAY column:

Defending Israel—Civilian casualties and common sense

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Jewish victory over the adversarial Arab collective must be Israel’s overriding moral & operational concern. Facilitating its achievement should be the overriding challenge for Israel’s legal establishment

It appears this week on the following sites (in alphabetical order):


JERUSALEM HERALD: (To be posted)

Several short excerpts:

We impose countless restrictions on our soldiers—legal as well as mental. Our fighters are more afraid of the Military Advocate General than [Hamas leader] Yahya Sinwar. Instead of defeating the enemy, we are containing it…—Education Minister Naftali Bennett, Press Conference, Nov. 19, 2018—relating to wide spread dissatisfaction with inadequate IDF response to the months of Hamas-instigated violence.

There is always a cost to defeat an evil. It never comes free, unfortunately. But the cost of failure to defeat a great evil is far higher —then-NATO spokesman Jamie Shea, cited in “Civilian deaths ‘necessary price’” , BBC, May 31, 1999—in response to allegations of extensive civilian casualities as the result of NATO bombing in the 1998-9 Balkan War.

Naftali Bennett’s recriminations against what many in the Israeli public considered the IDF’s feeble response to Hamas’s terrorist aggression along, and across, the Gaza border, initiated fierce public debate—with virtually the entire Establishment, from the Prime Minister and the Chief of Staff downwards, severely condemning his remarks.

Is legality losing its legitimacy?

Jewish Home ministers Bennett & Shaked at press conference

However, in light of what appears to be a growing disconnect between the man-in-the-street and the country’s legal apparatus, Bennett’s words of reproach seem to be far more in touch with public sentiment than those of his detractors…These findings [of a poll by the Israel Democracy Institute]should give both the legal and the political Establishment cause for concern. For clearly, when codified legality begins to lose its substantive legitimacy, the respect for the law is eroded and the rule of law is imperiled.

Does Israel’s legal system reflect societal norms?

Israel’s Supreme Court, Jerusalem

Indeed, a number of studies have identified the diminishing credence the public has for Israel’s legal institutions and warned of the consequences thereof…In his book, Towards Juristocracy (Harvard University Press, 2004), Prof. Ran Hirschl noted: …“Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded… the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda…”

Civilian Casualties: Anomalous Israeli sensitivity?

The disparity between the prevailing public perceptions and those of the legal system are mirrored in the divergent sensitivities to enemy civilian casualties of the Israeli authorities and those of other Western democracies—even when dealing with threats far from the homeland and which do not directly—or at least, not drastically—imperil their domestic populations.

Thus for example, according to some estimates, there have been over 200,000 civilian deaths as a result of the US wars on terror in Iraq and Afghanistan—without precipitating any anguished soul-searching on a major nationwide scale.

Anomalous Israeli sensitivity (cont.)?

Civilian bus cut in two by NATO bombing attack

Likewise, in the 1998-9 Balkan War, hundreds of civilians were killed by a NATO air campaign, code named “Operation Allied Force” – which hit residential neighborhoods, old-aged sanatoriums, hospitals, open markets, columns of fleeing refugees, civilian buses and trains on bridges, and even a foreign embassy.

Back to Bennett: Enemy civilian casualties as an operational constraint?

Bennett has been excoriated for his remarks, with his critics pointing out that very few IDF soldiers have been convicted for operational misdeeds or mistakes, even if grave—unless guilty of gross violation of orders…Now, while much of this may be factually true, in many ways it misses the point.

For, it is not so much a problem of inhibition in carrying out the orders given, but of inhibition in the substance of the orders given.

Correctly conceptualizing the conflict

The unvarnished truth is that, correctly conceptualized, the conflict between the Jews and the Palestinian-Arabs over the control of the Holy Land is the archetypical zero-sum game. It is a clash between two rival collectives, with irreconcilable foundational narratives. It is a clash in which only one side can emerge victorious; the other, vanquished. There are no consolation prizes!

In conclusion

Accordingly, this is a clash in which the Jewish collective cannot imperil its collective rights for the individual right of those in the enemy collective. If it does so, it will lose both its collective rights and the individual rights of its constituent members.

Indeed, I would invite anyone prone to challenge this harsh assessment to consider the consequences of Jewish defeat and Arab victory. Surely, even a cursory survey of the gory regional realities should suffice to drive home the significance of what would accompany such an outcome.

Thus, only once a decisive Jewish collective victory has been achieved, can the issue of individual injustice and suffering in the Arab collective be addressed as a policy consideration.

Clearly then, Jewish victory over the adversarial Arab collective must be Israel’s overriding moral and operational concern. Facilitating its achievement should also be the overriding challenge for Israel’s legal establishment.

As usual your talkbacks/comments/critiques welcome,
Best wishes,

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