...Kasher and Yadlin are simply assuming that the war against the enemy is a just war. Their claim, crudely put, is that in such a war the safety of "our" soldiers takes precedence over the safety of "their" civilians. Our main contention is that this claim is wrong and dangerous. It erodes the distinction between combatants and noncombatants, which is critical to the theory of justice in war (jus in bello). No good reasons are given for the erosion.
... The war cannot be a war of extermination or ethnic cleansing. And what is true
for states is also true for state-like political bodies such as Hamas and Hezbollah, whether they practice terrorism or not. The people they represent or claim to represent are a people like any other.
The main attribute of a state is its monopoly on the legitimate use of violence. Fighting against a state is fighting against the human instruments of that monopoly — and not against anyone else. It might be a morally nicer world if states would agree to limit their wars even more and to be represented by champions like David and Goliath....The crucial means for limiting the scope of warfare is to draw a sharp line between combatants and noncombatants. This is the only morally relevant distinction that all those involved in a war can agree on. We should think of terrorism as a concerted effort to blur this distinction so as to turn civilians into legitimate targets. When fighting against terrorism, we should not imitate it.
...The two senses of just war, jus ad bellum, the justice of the decision to go to war, and jus in bello, the justice of the conduct of war, have to be kept separate. Heads of states should be mainly accountable for the first, soldiers and their officers for the second. Blurring this line of separation undermines the categorical distinction between combatants and noncombatants, and it puts noncombatants (on whichever is taken to be the wrong side) at risk in new and dangerous ways.
The presumption of subjective justification applies to the combatants of Hamas and Hezbollah. They should, of course, be accountable for their conduct in war, especially when they make civilians the primary targets of their attack—and also when they deliberately use civilians as human shields. But neither of these crimes allows their enemies to give up their own obligation to avoid or minimize civilian
injuries and deaths.
...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...How do Kasher and Yadlin blur the distinction between combatants and noncombatants? By enabling "our" combatants to jump the queue for their own safety—so that their safety comes before the safety of civilians (whoever they are). For Kasher and Yadlin, there no longer is a categorical distinction between combatants and noncombatants. But the distinction should be categorical, since its whole point is to limit wars to those—only those—who have the capacity to injure (or who provide the means to injure).
...What degree of risk should Israeli soldiers assume [in a first scenario]? 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 of Manara 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...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...
More of the same.
(Kippah TipL MD)