Round two of the Walzer/Margalit vs. Kasher/Yadlin fight contained a surprise. It may be that the real target of Margalit and Walzer, whose latest criticism of Israel appeared today in the NYRB, was not the lightweight Asa Kasher, who, as the result of a family tragedy, sold his soul to the Israel Defense Forces years ago (By the way, dear rightwing readers, he was also cheerleading for the IDF when it did not respond to the Kassams. Kasher gives the IDF a hekhsher no matter what it does.) No, the real unmentioned target of their salvo appears to be Jeff McMahan, whose book, Killing in War, has been released in Europe but not yet in the US. McMahan's book strikes at the heart of the Just War theory distinction between jus ad bellam and jus in bello. It also strikes at the distinction between soldier and civilian that is so fundamental to Just War theory, and at the heart of Margalit and Walzer's criticism of Kasher and Yadlin.
McMahan's book, which I received yesterday from London, is considered the most powerful attack on Just War theory yet, and may, in some ways, sound the beginning of the end for Walzer's remarkably influential run as the Just War theorist par excellence.
McMahan, for example, argues that non-combatants may reasonably be considered culpable in certain circumstances, and should not automatically be considered immune. Of course, non-combatants have been subject to sanctions and have been forced to pay reparations after the war, and certainly they don't have the same responsibility as the leaders, nor can they be killed with imputiny. But McMahan is persuasive at attacking the distinction between combatant and non-combatant that is at the center of the Just War doctrine. He also argues that soldiers should not fight in an unjust war, that they, as soldiers, do not have some special status that allows them to kill others – albeit other soldiers – in war that non-combatants do not have. It is wrong for a soldier to participate in an unjust war, even if she wishes to be a good citizen. You cannot be a just participant in an unjust war. So much for jus in bello.
All this is denied by Walzer
Walzer and McMahan have been going at it for some time now. Is it a coincidence that a month before McMahan's book appears in the US, Walzer takes the opportunity to wage a preemptive strike? One need only compare the original Hebrew version of the Walzer and Margalit piece with the English, expanded, version, to see what I mean. This appears to be a proxy war.
In the meantime, Kasher and Yadlin have published a response to Walzer and Margalit which is full of contradictions, and for good reason: When it suits their purpose they follow McMahan; when it doesn't they follow Walzer. Thus, like McMahan, they blur the distinction between combatants and non-combatants. Israelis soldiers are our brothers, our sons, etc., and they should not stand in line behind the civilians of the other side. Their civilians, on the other hand, are culpable when they don't listen to the phonecalls and the leaflets that the IDF drops on their houses. They and Hamas are responsible for anything that happens to them.
Margalit and Walzer disagree:
"Each side in a war quite naturally views its soldiers not as helmeted warriors but as "our kids," young, pure, and innocent, who have been trained and issued uniforms by the state and who find themselves endangered by a cruel enemy. On many occasions, the public cares more for the life of its soldiers than for the life of its civilians. It is this understandable but morally misguided sentiment that creeps into the Kasher-Yadlin paper when they write: "A combatant is a citizen in uniform"—so as to convince us that we should not ask our soldiers to take risks to save the lives of noncombatants on the other side. This isn't the same as saying that a diplomat is a citizen in the uniform of a head waiter. A uniform in the case of combatants is not merely conventional; it is the crucial sign of the distinction between combatants and noncombatants—the distinction that guerrillas and terrorists try to obscure by not wearing uniforms"
In other words, when soldiers don their uniforms and fight against a foreign army, they are no longer our innocent sons and daughters – they are soldiers who stand in line behind the welfare of civilians, including enemy civilians. And they should take risks.
What degree of risk should Israeli soldiers assume [in case Hizbollah captures a kibbutz and surrounds it with Lebanese civilians[? We can't answer that question with any precision. They don't have to take suicidal risks, certainly; nor do they have to take risks that make the recapture…impossibly difficult. They are fighting against enemies who try to kill Israeli civilians and intentionally put civilians at risk by using them as cover. Israel condemns those practices; at the same time, however, it kills far more civilians than its enemies do, though without intending the deaths as a matter of policy. (Thirteen Israelis died in the Gaza fighting, some of them from friendly fire; between 1,200 and 1,400 Gazans were killed, half or more of them civilians.) But merely "not intending" the civilian deaths, while knowing that they will occur, is not a position that can be vindicated by Israel's condemnation of terrorism. So how can Israel prove its opposition to the practices of its enemies? Its soldiers must, by contrast with its enemies, intend not to kill civilians, and that active intention can be made manifest only through the risks the soldiers themselves accept in order to reduce the risks to civilians. [I.e., it is not sufficient for the IDF to say, "We intend not to kill civilians." – JH]
There is nothing unusual in this demand, and nothing unique to Israel. When soldiers in Afghanistan, or Sri Lanka, or Gaza take fire from the rooftop of a building, they should not pull back and call for artillery or air strikes that may destroy most or all of the people in or near the building; they should try to get close enough to the building to find out who is inside or to aim directly at the fighters on the roof. Without a willingness to fight in that way, Israel's condemnation of terrorism and of the use of human shields by its enemies rings hollow; no one will believe it….
If there is "no reason" for responsibility of this sort, if the lives of "our" soldiers really take priority over "their" civilians, then why couldn't the soldiers use those civilians as shields? Since they have not created the "mixed vicinity," why can't they in turn take advantage of it? We don't see how Kasher and Yadlin can avoid providing justification for a practice that Israel officially condemns and that we believe they believe is despicable: the use of noncombatants as human shields for combatants.
This assumes that Kasher and Yadlin have a consistent philosophical position. But as I recall, Kasher supported human shields when it was IDF policy and ceased to support it when it was no longer the policy (By the way, it is still often the practice, if not the stated policy.) Kasher and Yadlin argue now that our combatants should minimize their civilian casualties, and that this is what they did in the Gaza campaign. They believe that the IDF, with few exceptions, acted out of military necessity, and that they did take risks. The soldiers did not intend that civilians should die, and they adduce the dubious doctrine of "double effect " to support it.
In a nutshell, according to Kasher and Yadlin, Israel fought a just war with just means against terrorist, who fought an unjust war with unjust means, supported by an enemy population. We, all of us, are the good guys and they, all of them, are the bad guys.
This, of course, is puerile. What country doesn't say the same thing? And why, if IDF soldiers were not morally obligated to take risks, did they do so?
Oh, that's easy…the IDF is the most moral army in the world!
You see, we could have, justifiably, wiped out Gaza. But we took pity on some of the poor schmoes there. And you know why?
Because we're Jews. Morality flows in our veins.