Notes in the Margins of the Testimony

Gershom Gorenberg

In the post below this one, you’ll find my American Prospect article on Breaking the Silence’s book of testimony from soldiers who fought in Gaza last winter. There’s much more I’d like to say, but here are just a few notes in the margins:

  • Reading the testimony, one can find some evidence for the argument that the difference between how one unit and other behaves in the field is largely a function of their immediate commanders on the company level. There’s the account (told by two witnesses) of the company commander who wouldn’t let his men fire warning shots to keep an old man from approaching their position at night. Unaware of the soldiers, the man kept walking – till he was so close that the soldiers shot to kill. On the other hand, there’s the deputy company commander who ordered his men not to sit on the couches in the Palestinian house they had taken over.

    But that’s only part of the story. The soldiers who gave testimony to Breaking the Silence repeat that the policy of “shoot first, ask no questions,” of disregarding risk to non-combatants, was set by battalion and brigade commanders. In their descriptions, that policy shaped policy on the ground. The lack of clear rules of engagement – orders on when it was permitted to open fire – stood out, and was different from what the soldiers had experienced before. Either a whole set of battalion and brigade commanders adopted the view that avoiding casualties justified any price to Gazan civilians, or that policy was set even higher up. To blame individual soldiers or lower-level commanders is to fall into tismonet hashin-gimel, the “sentry syndrome,” blaming a private to protect a general.

    In fact, there’s been an intense debate among those responsible for setting the IDF’s ethical standards on soldiers’ obligations to avoid harm to enemy civilians. In an article published in Yediot Aharonot in March, Military Intelligence chief Amos Yadlin and Tel Aviv University philosopher professor Assa Kasher argue that soldiers need endanger themselves only to protect the lives of citizens of their own country – meaning that they need take no risks to avoid harm to non-combatants on the other side. Yadlin and Kasher indicate that the army has adopted their position. In a response (unfortunately not on line), professors Moshe Halbertal and Avi Sagi reject that stance as contradicting the IDF’s 2001 code of Ethics, which Halbertal and Sagi helped write. They argue that the IDF’s own standards require soldiers to take “a certain risk” to minimize harm to civilians Halbertal and Sagi know what the ethics code says. From the testimony of soldiers, it appears that Kasher and Yadlin know what the army’s policy was in Gaza.

  • In classic discussions of war ethics, there are two separate questions: Whether the war itself is justified, and whether the means used to fight it are justified. The distinction is needed, lest people think that if they have a legitimate reason to go to war, they can use any means to fight it.

    Politically, though, the issues are intertwined in a curious way, at least in a democracy. The public is more willing to bear the death of its soldiers, terrible as that is, when the reason for fighting is clear and justified and the goals are achievable. When Israel went to war in Lebanon three years ago, the losses to our forces caused public fury. A quarter-articulated force behind the fury was that the Olmert government entered the war hastily, with aims that couldn’t be achieved by bombing and invading Lebanon. (See the conclusions of the Winograd Report on the war.) Our soldiers not only died, they seemed to die pointlessly.

    When the Olmert government chose to go to war in Gaza last winter, it left its goals vague. Was the aim to overthrow the Hamas government? To “restore deterrence,” a term left undefined? With goals unclear, the chance of success evaporates, and all losses are politically unacceptable. At some high level, it appears, the lesson learned from Lebanon was to avoid all losses to our side, even if it meant a much higher cost to those living in Gaza.

  • Responding to the Break the Silence report, the army spokesman said that because the testimony is anonymous, there’s no way to investigate the allegations raised. The subtext is that the army wants to investigate what individual soldiers did, not the policies. Again, the sentry syndrome.

    But even on the level of individual incidents, the spokesman’s response is deceptive. One allegation in the testimony is that Palestinian civilians were used as human shields.Yesterday, B’Tselem issued a press release stating that it had already provided the information that army legal authorities would need to investigate those allegations:

    In light of the Israeli military’s attack against the credibility of the soldiers’ testimonies issued by “Breaking the Silence”, B’Tselem has urgently sent the Minister of Defense copies of letters previously sent to the judge advocate general, in which the organization reported grave suspicions that soldiers had used Palestinian civilians as human shields during Operation Cast Lead. The letters were based on testimonies given to B’Tselem by Palestinian residents of the Gaza Strip and were sent two and three weeks ago.

  • A postscript: In March, when much briefer testimony emerged about the Gaza fighting, both Haim and I posted about it here.
  • 19 thoughts on “Notes in the Margins of the Testimony

    1. I’d just like to offer the following comments and underlines on Gershom’s timely posts:

      1. As Gershom notes, this new testimony confirms two points that I’ve made again and again, here and elsewhere:

      a) the culpability of individual soldiers is severely limited in battle situations because they generally lack the information to make informed judgments about the military necessity of a specific bullet or grenade or mortar charge. Individual soldiers cannot and should not be accused of violations or war crimes unless they have specific and near-certain knowledge that the firing order they have received is aimed at innocent civilians and is in not related to the protection of themselves and their comrades. All too often the lowest ranks take the rap when they had no ability to exercise moral choice. (A soldier who shoots or bombs or beats civilians *at his own initiative and in violation of his orders* is of course culpable.)
      2) Field commanders–in particular platoon and company commanders, who directly lead the troops–are the most important agents for instilling and enforcing military ethics. The personal example they set is as important, usually more important, than specific orders. An army that seeks to fight effectively and ethically must thus ensure that these ranks are filled by officers who, in addition to being tough, determined, and combat-trained, are also personally responsible and also educated in the ethics of the battlefield.
      3) Ultimately, the highest ranks set the ground rules and the tone. What I find most disturbing about this latest set of testimonies is not the individual actions of the soldiers but the testimony that the highest ranks effectively abandoned the moral field and gave no clear instructions and rules of engagement to the men and the officers in the field.

    2. Re this statement:

      The public is more willing to bear the death of its soldiers, terrible as that is, when the reason for fighting is clear and justified and the goals are achievable.

      I think the word “justified” shifted meaning here from its use in your preceding paragraph. There it seemed to mean jus ad bellum in the classic juridical, moral, or theological sense. Here it seems to mean something very different: “justified” by public opinion in the state that’s waging a war, where public opinion will obviously be self-serving.

      As you say, jus ad bellum and jus in bello are tightly related, but traditionally the implication is for casualties on the other side, not one’s own. In traditional just war theory, jus ad bellum might not justify all means of fighting, but tradtionally it did justify some means that would otherwise be forbidden.
      Armies waging a just war might for instance be permitted to use more destructive weapons, e.g. crossbows, which are banned in non-just wars.

      I think this might carry over to your democratic version of “just” war. To the extent that the public convinces itself that some war is “justified,” maybe that public would tend to “justify” worse treatment of enemy combatants and noncombatants. Deciding that your war is just may be bad news for soldiers and civilians on the other side.

    3. I am horrified by the Breaking Wind account from Gaza. Compared with the murder of Naava and Dr David Appelbaum in South Jerusalem by Hamas based freedom fighters, breaking holes in walls and leaving the toilet seats up are true atrocities

    4. I think the aims of the two conflicts you mention were pretty clear. They were punitive orgies of destruction aimed at killing as many opponents as possible and demolishing the infrastructure in Gaza and southern Lebanon. I suspect this was done in the context of a planned attack on Iran, reducing the capacity of Hamas and Hezbollah to retaliate. Obviously that’s not an objective you can make public so they were happy to take the hit of a public opinion backlash. After all, if you can bomb the U.N. without consequence what’s to worry about? It was another blow to the peace process to allow settlement expansion. Am I wrong? That’s what it looked like to me.

    5. Ploni:

      Armies waging a just war might for instance be permitted to use more destructive weapons, e.g. crossbows, which are banned in non-just wars.

      Does this distinction make sense at all in practice? Who goes to war, claiming it’s a unjust one? Nobody will ever say, we can’t use this or that weapon because our war is not just. At all times, every party has declared their cause to be just and the enemy’s unjust. Of course, that doesn’t make it so, but the first arbiter of which means to use is always the user itself – backlash from outside, over the use of WMDs, e.g., can only come after the fact.

      A commenter on Jerry Haber’s blog made a good point: because the (any) military is institutionally incapable of putting ethics over military needs it will use each and any means at its disposal, and to keep it in check, enforcing an ethics code is the responsibility of the civilian leadership, and in a democracy, especially with a non-volunteer, conscript military, society itself. That’s not to say that the top military echelons are free of responsibility, but the buck certainly doesn’t stop there.

    6. The obvious aspect of the gaza invasion that neither Gershom nor Haim deal with is that THIS WAS NOT A WAR against any present and real danger to the state. It was a Punitive Action against a captive population, under the pretext that Hamas was an irritant that failed to abide by the rules set by Israel. Throughout history, occupation regimes mounted from time to time punitive missions the goal of which is to teach the subjugated population a lesson. Be they the Spaniards in South america, babilonians in Israel, Romans in judea or britain, russians in chechnia and mongols in eastern europe.

      While the actions by the Israeli soldiers did not quite rise to the level shown by these charming historical occupiers of record, what they did do is well in line with the same kind of purpose: To Punish both population and leaders. The rest is just cover up of age old historical pattern with justifications that try and make it somehow more pallatable for modern tastes..

      The hand wringing we see from people who are “appalled” by individual soldiers behavior or by the lack of a “clear goal setting” for the mission is not surprising. After all, the alternative – which is to admit that the “mission” in Gaza did have a clear purpose which the commanders and soldiers executed as best they could – is much less appealing. At least in the harsh light of civilized sensibilities.

      For many in Israel, it’s easier to admit “operational failure” or “lack of clarity” than to accept that what happened in Gaza – just like what happened in Lebanon – was what was supposed to happen. Gazans were punished – as brutally as the command and policy makers felt they could get away with. If they had felt they could inflict even worse punishment and the outcry would have been “tolerable” they would have.

      Looked at it this way, it’s all quite easy to understand. The rest is just ad-hoc excuse making. Which can stray into the pathetic were it not so genuinely sad. Like all excuses – after-the-fact “fact finding” missions are notable more for their omissions. The legalistic/moralistic trappings may be new, but the play book is as old as civilization itself. Bad people rejoice in the sight of collective punishment administered as many in israel have (and yes, these can only be called bad people). Good people wring their hands as they lumber to try and get a recalcitrant truth to meet them half way.

      And the rest of us (physically outside the conflict zone)? we can only do our Greek tragedy choir thing. Which is what I am doing now.

      Because a tragedy it is.

    7. Dana- yes it is a Greek tragedy: seeking to avoid the end feared most, one arrives right there.

    8. fiddler, the justice of a given war was very important in practice back when there was a coherent international order, which does not exist today. In the Middle Ages (respublica Christiana) the Pope had real authority in Christendom. The Church had authority to rule on the justice of wars. For instance, a crusade ordered by the Pope was eo ipso just.

      In the modern period, just war had become formal, analogous to dueling between sovereigns, and while there was no international authority like the Church, all continental European states basically accepted the rules. In that setting, a rebellion by an occupied population would not be a just war (in fact not a war at all), so the occupier could legally use methods that would have been illegal if used against another sovereign state. Again, this was a distinction of practical importance.

      Now that the modern period has ended and there’s no real international order (the UN notwithstanding), all that’s left is the degree to which international law has been internalized by political actors, e.g. Israel and Hamas. Some wars are considered less “just(ified)” than others by the public, for instance the Vietnam War by the Americans. It’s possible that in those cases the public might be a little stricter in the amount of tonnage it accepts in the bombs dropped on the enemy. I’m talking of course about a Western (including Israeli) public only. I think one of the big mistakes of South Jerusalem and of Michael Walzer et al. is to try to universalize norms which are not universal.

    9. I think Dana is basically right. Concentrating on Breaking the Silence is analogous to concentrating on illegal settlement outposts while ignoring the settlement project as a whole. While Israel does generally try to avoid killing noncombatants, the effectiveness of the reprisals in Gaza (2008) and Lebanon (2006) depends on the fact that there will be unintended but inevitable civilian suffering. Israel tries to avoid harming noncombatants, but depends on the fact that it cannot be avoided.

    10. Naw, thousands of missile, mortar and rocket launches were just figments of our imagination rather than any real danger to the state (which is the people, not the government). Try to peddle that point of view in Sderot.

      In the meantime, while you are chorusing your Greek chorus, what, if anything, are you doing to protest Gazan attacks ( which still continue albeit in greatly reduced numbers) on civilian towns in Israel? My bet is you’re doing nothing.

    11. Some wars are considered less “just(ified)” than others by the public, for instance the Vietnam War by the Americans. It’s possible that in those cases the public might be a little stricter in the amount of tonnage it accepts in the bombs dropped on the enemy.

      Unfortunate example, isn’t it? The bomb tonnage dropped on Vietnam was about five times the amount dropped by Anglo-American forces during World War II.

      Is there any actual evidence that countries were willing to countenance harsher tactics in wars they considered just? Were countries in the modern period really so unanimous in their assessments of whether particular wars were just? (For instance, did both sides agree about the Great French War?) Inquiring minds want to know.

    12. It is hard not to admire the ingenuity, integrity and resiliance of the Hamas freedom fighters using inferior weapons to reclaim their land, while the Goliath like IOF is unable to stope them. Now, the IOF soldiers are demonstrating graphically how they got whupped by the righteous freedom fighters. If you dont want to be shelled in Sderot, give it back to its rightful owners, and stop whining about Gilad Shalit

    13. The charges made by people in Gaza can not be investigated. Hamas is in charge over there and the IDF can’t talk to them.

      B’Tselem is being disingenuous here. The stories about human shields are totally under Hamas administration.

      In war, soldiers have to “Shoot first” or die. I have to ask, though, whether the IDF in Gaza was acting as if it were facing Hezbollah, which fought differently.

      Over the course of Cast Lead, about 2 or 3 people an hour died. This is hardly the picture of an army gone mad. One man with a rifle can kill that many people.

    14. Raghav, the Vietnam War was considered just(ified) until towards the end. The question is whether public opinion turned against the methods by which the war was fought (e.g., napalm) at the same time it turned against the war itself. I don’t know the answer to that question.

      I wasn’t making an empirical claim here, only suggesting an intuitively plausible hypothesis. I don’t know if there’s any evidence for it.

    15. “If you dont want to be shelled in Sderot, give it back to its rightful owners, and stop whining about Gilad Shalit.”

      What an amazing revelation. Here’s a comment from someone who thinks trying to recover a son of ours who was the victim of a HAMAS invasion and attack is “whining.” It is certainly one of the most sociopathic comments to appear here.

      The other amazing thing is the writer’s total ignorance: Sderot is not part of Gaza. Even Mohammed Dahlan and the PA agreed that Sderot is part of Israel proper…..so there is nothing to “give back” because it’s not theirs. Hamas is shelling Israeli towns because Hamas’ is engaged in an Islamic crusade to create a Caliphate on the ruins of Israel.

    16. the Vietnam War was considered just(ified) until towards the end.

      I don’t think this is right. According to Gallup, the view that sending troops to Vietnam was a mistake commanded a majority of Americans starting in Aug.-Sept. 1968, a bit more than two and a half years after large-scale military involvement. And from 1966 forward more Americans disapproved of Johnson’s handling of the war than approved.

      a majority of Americans that sending troops to Vietnam was a mistake

    17. the Vietnam War was considered just(ified) until towards the end.

      I don’t think this is right. According to Gallup, the view that sending troops to Vietnam was a mistake commanded a majority of Americans starting in Aug.-Sept. 1968, a bit more than two and a half years after large-scale military involvement. And from 1966 forward there were more Americans who disapproved of Johnson’s handling of the war than those who approved.

    18. aliyah06, you should know that Phillips Brooks doesn’t think Israel even has a right to land within the 1949 borders. He also has some frankly disgusting views about Jews.

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