Monday, May 3, 2010

McCrystal's Strategy of Jus in Bello

General Stanley McCrystal's strategy of avoiding collateral damage is commendable for its limitation on unnecessary killing. However, some now argue that its restraints on military operations, particularly airpower, has handcuffed the availability and means to respond. The conclusion is that the initiative now rests with the enemy.

War is war... people die in wars. What is the moral imperative in war? On December 11, 2005, the Israli Supreme Court issued its opinion on the case of The Public Committee against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel, The Prime Minister of Israel, The Minister of Defense, The Israel Defense Forces, The Chief of the General Staff of the Israel Defense Forces Shurat HaDin – Israel Law Center and 24 others, HCJ 769/02 (Israel 2005). In my opinion, this is the most complete and thoughtful discussion on the issue of jus in bello that I've ever read.

Whether you agree with the holding of the opinion or not, its complete analysis of the issue and the internal logic of the framework used is well worth reading.

In the underlying case the specific issue before the Israeli Supreme Court was the following:

"The Government of Israel employs a policy of preventative strikes which cause the death of terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan, launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians. Does the State thus act illegally? That is the question posed before us."

The Israeli Supreme Court answered the question in the following manner:


61. The State of Israel is fighting against severe terrorism, which plagues it from the area. The means at Israel's disposal are limited. The State determined that preventative strikes upon terrorists in the area which cause their deaths are a necessary means from the military standpoint. These strikes at times cause harm and even death to innocent civilians. These preventative strikes, with all the military importance they entail, must be made within the framework of the law. The saying "when the cannons roar, the muses are silent" is well known. A similar idea was expressed by Cicero, who said: "during war, the laws are silent" (silent enim legis inter arma). Those sayings are regrettable. They reflect neither the existing law nor the desirable law (see Re. Application Under s.83.28 of the Criminal Code [2004] 2 S.C.R. 248, 260). It is when the cannons roar that we especially need the laws (see HCJ 168/91 Murkus v. The Minister of Defense, 45(1) PD 467, 470, hereinafter Murkus). Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no "black holes" (see JOHAN STEYN, DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS 195 (2004)). In this case, the law was determined by customary international law regarding conflicts of an international character. Indeed, the State's struggle against terrorism is not conducted "outside" of the law. It is conducted "inside" the law, with tools that the law places at the disposal of democratic states.

62. The State's fight against terrorism is the fight of the state against its enemies. It is also law's fight against those who rise up against it (see Kawasme, at p. 132). In one of the cases in which we examined the laws of armed conflict, I stated:

"This fighting is not taking place in a normative void. It is being conducted according to the rules of international law, which determine principles and rules for combat activity. The saying, 'when the cannons roar, the muses are silent,' is incorrect. Cicero’s aphorism, that laws are silent during war, does not reflect modern reality. . . . The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law’s war against those who rise up against it. . . . Moreover, the State of Israel is a state whose values are Jewish and democratic. We established a law abiding state, which realizes its national objectives and the vision of generations, and does so while recognizing human rights in general, and human dignity specifically, and while upholding those rights. Between these — the realization of national objectives and the vision of generations, and human rights — there is harmony and fit, not contradiction and alienation" (Almandi, at p. 34; see also Murkus, at p. 470; HCJ 1730/96 Sabih v. The Commander of IDF Forces in the Judea and Samaria Area, 50(1) PD 353, 369).

Indeed, in the State's fight against international terrorism, it must act according to the rules of international law (see Michael Kirby, Australian Law – After 11 September 2001, 21 AUSTRALIAN BAR REVIEW 253 (2001)). These rules are based on balancing. They are not "all or nothing". I discussed that in Ajuri, stating:

"In this balancing, human rights cannot receive their full protection, as if there was no terrorism, and state security cannot receive its full protection, as if there were no human rights. A delicate and sensitive balancing is needed. That is the price of democracy. It is a dear price, which is worthwhile to pay. It maintains the strength of the state. It makes the State's struggle worthwhile (Ajuri, at p. 383).

Indeed, the struggle against terrorism has turned our democracy into a "defensive democracy" or a "militant democracy" (see ANDRAS SAJO, MILITANT DEMOCRACY (2004)). However, we cannot allow that struggle to deny our State its democratic character.

63. The question is not whether it is possible to defend ourselves against terrorism. Of course it is possible to do so, and at times it is even a duty to do so. The question is how we respond. On that issue, a balance is needed between security needs and individual rights. That balancing casts a heavy load upon those whose job is to provide security. Not every efficient means is also legal. The ends do not justify the means. The army must instruct itself according to the rules of the law. That balancing casts a heavy load upon the judges, who must determine – according to the existing law – what is permitted, and what forbidden. I discussed that in one case, stating:

"The role of decision has been placed at our door, and we must fulfill it. It is our duty to preserve the legality of government, even when the decisions are difficult. Even when the cannons roar and the muses are silent, the law exists, and acts, and determines what is permissible and what is forbidden; what is legal and what is illegal. As the law exists, so exists the Court, which determines what is permissible and what is forbidden, what is legal and what is illegal. Part of the public will be happy about our decision; the other part will oppose it. It may be that neither part will read our reasoning. But we will do our job" (HCJFH 2161/96 Sharif v. GOC Home Front Command, 50(4) PD 485, 491).

Indeed, decision of the petition before us is not easy;

"We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terrorism. We are aware of the killing and destruction wrought by the terrorism against the State and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against terrorism's severe blow. We are aware that in the short term, this judgment will not make the State’s struggle against those rising up against her easier. That knowledge is difficult for us. But we are judges. When we sit in trial, we stand trial. We act according to our best conscience and understanding. Regarding the State’s struggle against the terror that rises up against her, we are convinced that at the end of the day, a struggle according to law (and while complying with the law) strengthens her and her spirit. There is no security without law. Satisfying the provisions of the law is a component of national security" (Beit Sourik, at p. 861).

64. In one case we decided the question whether the State is permitted to order its interrogators to employ special methods of interrogation which involve the use of force against terrorists, in a "ticking bomb" situation. We answered that question in the negative. In my judgment, I described the difficult security situation in which Israel finds itself, and added:

"We are aware that this judgment of ours does not make confronting that reality any easier. That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by her enemies are open. At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome her difficulties (HCJ 5100/94 The Public Committee against Torture in Israel v. The State of Israel, 53(4) PD 817, 845).

Let it be so.

The full opinion is found in:

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