Discrimination Proportionality and Pagers

Connor Hartigang, an O'Hare Fellow and former editorial intern at America Media, writing for America Magazine summarizes an interview with Maryann Cusimano Love, associate professor of International Relations at the Catholic University of America; and Richard A. Love, a professor in the College of Information and Cyberspace at National Defense University, about the ethics in the light of international law of the pager attack in Lebanon.

People gather as a man donates blood in Beirut Sept. 18, 2024, following pager detonations across Lebanon. The pagers exploded nearly simultaneously in Lebanon and Syria in an apparent Israeli operation targeting Hezbollah's communications network, killing at least 12 people and wounding nearly 3,000. (OSV News photo/Mohamed Azakir, Reuters)

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The apparent deployment of remotely detonated explosive devices in pagers and two-way radios used by Hezbollah members in Lebanon has raised concerns over the ethics and legality of the tactic, particularly given the civilian casualties among Lebanese resulting from these explosions. No party has claimed credit for the pager attack, but Hezbollah blames Israel, and U.S. officials on background have said that Israeli intelligence intercepted a shipment of pagers and inserted explosives into them.

Maryann Cusimano Love agrees that Israel has a right to self defense, and civilians have a right to protection. Israel’s self defense actions are limited by ethics and law. After suffering a horrific terrorist attack, there is pressure to “respond in kind.” Many argue that since terrorists fight dirty, the “gloves should come off” in response.

This approach is self-defeating. You can’t argue that terrorism is wrong, that killing civilians in terrorist attacks is immoral, illegal, and that the world should come together against terrorism, while engaging in attacks that kill civilians. (Hartigan, n.d.)

Richard Love notes that Hezbollah is a designated terrorist organization by the United States and many other states, but Israel and Lebanon are signatories to the 1983 Convention on Certain Conventional Weapons, which bans remotely delivered mines. Many academics include booby traps in this definition, which arguably makes Israel’s use of explosives in pagers and walkie-talkies illegal.

But perhaps the most concerning aspect of the attack was in how it was targeted, since non-combatants were certainly injured in great numbers and some noncombatants were killed. A fundamental tenet of humanitarian law rests on distinction, the requirement to distinguish combatants from non-combatants and not target non-combatants with military assets.

After the September 11 attacks, the United States faced similar questions in assessing how to respond. These are challenges governments face in conducting counterterrorism and counterinsurgency operations. (Hartigan, n.d.)

Maryann Cusimano Love comments that the U.S. general who was in charge of the war in Afghanistan, General David Petraeus, repeatedly noted that “every civilian death diminishes our cause,” and “you can’t kill your way out” of this conflict.

If the United States were engaged in a conflict with a state adversary, an attack like this would raise a lot of questions about whether this was a targeted assassination.

Richard Love comments that by policy, the United States prohibits the assassination of political leaders in a country with which we are not at war. Whether you assassinate a political leader in times of war is largely a matter of politics because once you do that, you open your side to reprisals. (Hartigan, n.d.)

Connor Hartigan asks how might the Catholic tradition of just war theory be applied to this case?

Maryann Cusimano Love allows that Just war tradition is necessary, but insufficient, in describing the ethical terrain.

Just war tradition is institutionalized in the Geneva Conventions, in international law of war and in domestic codes of military justice. The tradition requires the right intention of seeking a positive peace, rather than revenge, but it also requires positive actions to protect noncombatants, the criteria of discrimination and proportionality.

The Biden administration has spent a lot of time and energy trying to get the two parties to negotiate an end to this conflict, so when Israelis say, “escalate to de-escalate,” they’re signaling to the Biden administration that they’re trying to get to the table.

Richard Love comments “But I don’t see any evidence of that happening. All the evidence that I’ve laid out points to an escalation that’s not going to de-escalate. There is a real fear within Washington that this thing could get out of control.”

I suspect there’s a lot of pressure within Israel to use this dominance while they still have it. We’ve seen this play out in Gaza, where I don’t believe anyone believed that the I.DF. was going to bulldoze and blow up the entire Gaza Strip before they did it. Where we are now, as far as the humanitarian crisis and catastrophe Gaza has become is almost unbelievable. (Hartigan, n.d.)

The problem is confronting Hezbollah is a far more risky proposition. It is a far more savvy adversary; it’s funded and armed by Iran and Hezbollah will be a much more difficult target. You’re not just going into the Gaza Strip; this would require an invasion of Lebanon, and you can draw on the history of how that’s played out in the past. It’s been very risky, it’s been very bloody, and it’s always resulted in an indeterminate outcome.

Richard Love asks: “But is the Israeli strategic objective here to make Hezbollah incapable of delivering their missile strikes?” Part of that would be to look at what they’ve done: on Sept. 17, they went after pagers; on Sept. 18, walkie-talkies; on Sept. 20, you have airstrikes. Are they preparing the battlespace for an invasion? Is their strategic goal to go in and conduct operations similar to what they’re doing in Gaza? Because I’m here to tell you: that is very risky. Every time the I.D.F. has tried a ground invasion in Lebanon, they’ve gotten mired down and were not able to achieve their strategic objectives. (Hartigan, n.d.)

A final observation is an invasion would be catastrophic both for the people of Lebanon, for the people of Israel who are fighting a hidden organization which has vastly greater capabilities than Hamas. So don’t fall under the illusion that the next step for Israel is just to replicate what they did in the Gaza Strip. It will be a far greater, bloodier and riskier campaign.

Who’s standing behind Hezbollah? Iran.

And who’s standing behind Iran? Russia.

References

Hartigan, C. (n.d.). Did Israel’s pager attack break international law? America Magazine | The Jesuit Review of Faith & Culture. Retrieved September 27, 2024, from https://www.americamagazine.org/politics-society/2024/09/26/maryann-cusimano-love-richard-love-israel-lebanon-pager-explosions 

Tactics and Terrorism

The tactics authorized by Prime Minister Benjamin Netanyahu to "do what is necessary" to protect its north may be closer to terrorism than military action that respects International Humanitarian Law.

Exploding Pagers https://www.cbc.ca/player/play/video/9.6515789

Saša Petricic reporting for CBC News asks “By bruising and humiliating Hezbollah, is Israel playing 'Middle East roulette?'”

In recent days, Israel has made subduing Hezbollah an official war goal — right alongside winning the conflict with Hamas in Gaza — with Prime Minister Benjamin Netanyahu saying Israel would "do what is necessary" to protect its north. Defence Minister Yoav Gallant told U.S. officials this week that means "military action." 

In the hours after the pager attacks, Israel moved its large 98th Division from fighting in Gaza to the northern border. The military vows to return more than 60,000 Israelis to their homes in border communities after a safety evacuation that has lasted since fighting began after Oct. 7.

But many others worry it brings little relief, just more danger from all sides.

"At a time when Netanyahu was promising the Israeli public until not very long ago that we are just a small step from total victory over Hamas, now it seems we are closer than ever to a large-scale war with Hezbollah, too," wrote Haaretz columnist Amos Harel on Wednesday.

U.S. Secretary of State Antony Blinken is working to avoid that, leading a so-far unsuccessful diplomatic push for a ceasefire in Gaza and de-escalation in the north.

"It's imperative that everyone avoid taking steps that could further escalate or spread the conflict," he warned in a Cairo news conference when asked about the pager attack, stressing that Washington was not consulted or told about it in advance.

"It's fairly obvious that Israel did this," Ben Rhodes, a former national security adviser to former president Barack Obama, told the BBC. "This is not what the U.S. wanted."

As a result, Israel may be playing "Middle East roulette," Beirut journalist and author Kim Ghattas said in a BBC interview. "You keep pushing further and further until you actually do ignite a regional war."

Israel's president Isaac Herzog spoke to Sky News this morning, where he rejected Israel had "any connection" to this week's exploding pager attack in Lebanon. He also spoke of Israel's "disappointment" with the British government over its decision to suspend arms export licences. (Petricic, n.d.)

Alistair Bunkall, Middle East correspondent for Sky News reports that  President Herzog's outright denial that Israel was behind the attacks on Hezbollah pagers and walkie-talkies goes further than the official Israel government response which, so far, has been to say nothing at all.

It's not unusual for Israel to remain silent after major attacks on its enemies, and guilt is generally assumed by the absence of comment, but Herzog was definitive, saying he "rejects out of hand any connection to this or that source of operation".

That doesn't square with background conversations I've had with political and security officials here in recent days.

Admittedly no-one has confessed outright, however discussion of the attacks and the potential consequences, are generally framed by a metaphorical nod and wink, and conversations had proceeded along the lines of 'we all know what happened, even if we’re going to dance around it'.

Herzog might be right to suggest Hezbollah has other enemies, but aside from the US, which has repeatedly denied even knowing about the attacks ahead of time, I can not think of another state that would have the capability, will and purpose to carry out those attacks.

As one serving western intelligence official remarked to me a few days ago, "none of us would dare do it because of the collateral damage". 

No one, not even Israel, has come up with an alternative culprit.

The timing of the attacks, were it not Israel, are too coincidental.

'Disappointment' in Israel over UK

Mr Herzog was asked if he is disappointed in the way that the British government has acted in the last few weeks towards Israel.

The UK has suspended arms export licences to the country for use in military operations in Gaza, following a review of Israel's compliance with international humanitarian law. (Wyatt, 2024)

Madeleine Hall writing in Jacobin comments that the rigging of pagers and other electronics that has wounded over 3,000 people in Lebanon is neither “precise” nor “sophisticated.” It is barbaric and it is terrorism.

“Israel has neither confirmed nor denied any role in the explosions,” the New York Times reported, “but 12 current and former defense and intelligence officials who were briefed on the attack say the Israelis were behind it, describing the operation as complex and long in the making.”

Cars and apartments were set alight and hospitals overwhelmed with thousands of casualties. Because the devices in question began beeping repeatedly before they exploded, many victims were holding them close to their faces when they detonated, causing horrifying injuries.

Much of the mainstream Western media has marveled at the so-called “precision” and “sophistication” of the attack, framing it as an operation intended only to target members of Hezbollah. This is patently false, as numerous civilians have been injured and killed.

Israel’s real aim was clear: to stoke fear and mass panic among an entire population. During the second attack on Wednesday, explosions could be heard during the funeral of four people killed the previous day. Unconfirmed reports indicated that solar panels and ATMs detonated during the attacks, too. People across Lebanon have said they are afraid to use any electronic devices.

There’s a word for this: terrorism. (Hall, n.d.)

The Unpacked for Educators website asks Should the IDF Be Held to a Higher Moral Standard? 

Today’s armies are subject to international humanitarian law, national pressure and public scrutiny. Yet they must also uphold themselves to their own specific ethical and moral codes.

For decades, Israel’s military, the Israel Defense Forces (IDF), has fought for the state’s very existence. Over time, many of Israel’s enemies have moved beyond the traditional battlefield and brokered for peace…or political warfare. 

Enemies like Hamas, Islamic Jihad and Hezbollah have tested the IDF’s morality by using unethical tactics beyond the accepted principles of warfare, putting innocent human lives at risk. Israel’s position is that until Israel’s enemies hold themselves to a higher moral code, the IDF will remain prepared and armed to defend Israel from constant threat while striving to maintain its own ethical code.

Big Ideas

Asymmetric warfare, particularly with terrorist groups, challenges the IDF's ability to maintain ethical codes and purity of arms.

The IDF often takes steps to limit civilian casualties, as opposed to Hamas and Hezbollah, who purposely place civilians in harm's way. (Should the IDF Be Held to a Higher Moral Standard?, n.d.)

Hussein Ibish, Arab Gulf States Institute, defines Hamas in this way:

A millenarian group, apocalyptic, believing a divine mandate with a religious imperative.(CBC the Current Oct16, 2023)

In the necessary effort to protect the people of Israel from attacks by Hamas, Islamic Jihad and Hezbollah, the IDF has the resources and expertise to achieve the goal of protection without lowering its ethical codes to that of the enemy and disrespecting the principles of International Humanitarian Law, particularly in the aspects of distinction and proportionality.

References

Hall, M. (n.d.). Israel’s Beeper Attacks Are Terrorism. Jacobin. Retrieved September 22, 2024, from https://jacobin.com/2024/09/lebanon-israel-beeper-attacks-terrorism 

Petricic, S. (n.d.). By bruising and humiliating Hezbollah, is Israel playing 'Middle East roulette? CBC News. Retrieved September 22, 2024, from https://www.cbc.ca/news/world/   

Should the IDF Be Held to a Higher Moral Standard? (n.d.). Unpacked for Educators • The Best of Jewish and Israel Education. Retrieved September 22, 2024, from https://unpacked.education/video/should-the-idf-be-held-to-a-higher-moral-standard/ 

Wyatt, M. (2024, September 22). Middle East latest: Hezbollah now in 'open-ended battle of reckoning' with Israel, deputy leader says. Sky News. Retrieved September 22, 2024, from https://news.sky.com/story/israel-lebanon-pager-walkie-talkie-explosions-middle-east-crisis-hezbollah-hamas-gaza-war-latest-sky-news-live-blog-12978800 

Lesser of two evils

The BBC has reported that Pope Francis has called both major US presidential candidates "against life" and advised Catholic voters to choose the "lesser evil" when casting their ballots in the November election. This news conference, as he wrapped up a 12-day tour through southeast Asia, has been covered by many world news outlets. Five themes have come to mind in reflection about the Pontiff's advice.

Views and the Vatican

1. Forgive them, they know not what they do.(Luke 23:34).

Christians are familiar with this admonition of Jesus from the cross that originally referred to the people responsible for His crucifixion. Many of the followers of the political scenarios identified by Francis would do well to understand the grief and suffering that has moved people to the paths “against life” that they polarize for political advantage. An extension of political rhetoric to include “walking in the shoes” of the people concerned about the consequences of political policy is required. 

2. Misinformation and disinformation disguises the full story.

The loss of truth that accompanies misinformation and disinformation about the actions and consequences of the alternate political policy is extremely dangerous to the operation of a democracy which can only operate at its best motivated by truth, goodness, and beauty as aspirations for all.

3. Real needs for support and care are present in the cause.

The political effort to achieve policy objectives needs to recognize that people have real needs for support and care that may be denied or reduced by polarized persecution of groups with differing desires.

4. Demonizing others is a path to destruction. 

There seems to be more than enough evil done against groups that have been demonized in political rhetoric. Death and destruction have too often been the response advocated and actioned by misinformed zealots to the perception intentionally created that the opposition are demons.

5. Acting in conscience requires freedom to choose. 

Much political rhetoric lauds “freedom”. The conscientious choices that are required to be our best people and create our best society cannot be coerced. We move toward the justice we seek through our freedom to act according to our conscience.

There are tragic results when political polarization leans toward policy that casts the opposing side as “evil” and fails to address the suffering and pain that they may encounter as a consequence. 

Update on AI and IHL in Gaza

Liam Stack who spent many years as a Middle East correspondent based in Cairo reports from Tel Aviv for the New York Times that Israel Defends Strike on School Compound as Condemnation Mounts.

Distinction Proportionality Data

The article on AI Distinction Proportionality IHL in Gaza (https://tinyurl.com/ye27jwm8) was

posted Tue, May 28, 2024. It argued that the Military Forces of Israel have access to very sophisticated AI supported tools, similar to those of the United States, that not only permit, but require, the strictest application of International Humanitarian Law (IHL) in the areas of distinction and proportionality. Failure to do so exposes Israeli authorities to war crime accusations and further isolation from traditional allies in Western Democracies.

Simon Frankel Pratt, a lecturer in political science at the School of Social and Political Sciences, University of Melbourne, posted an argument to FP, Foreign Policy Magazine. His article is an expert's point of view on a current article entitled “When AI Decides Who Lives and Dies”. The Israeli military’s algorithmic targeting has created dangerous new precedents. Investigative journalism published in April by Israeli media outlet Local Call (and its English version, +972 Magazine) shows that the Israeli military has established a mass assassination program of unprecedented size, blending algorithmic targeting with a high tolerance for bystander deaths and injuries.

Local Call and +972 Magazine have shown that the IDF may be criminally negligent in its willingness to strike targets when the risk of bystanders dying is very high, but because the targets selected by Lavender are ostensibly combatants, the IDF’s airstrikes are not intended to exterminate a civilian population. They have followed the so-called operational logic of targeted killing even if their execution has resembled saturation bombing in its effects.

Although Israel often presents the IDF as being in exemplary conformance to liberal and Western norms, the way that the IDF has used AI in Gaza, according to the Local Call and +972, is in stark contrast to those same norms. In U.S. military doctrine, all strikes must strive to keep bystander deaths below the determined “non-combatant casualty cut-off value” (NCV).

NCVs for most U.S. operations have been very low, and historically, so have Israel’s—at least when it comes to targeted killing. For example, when Hamas commander Salah Shehadeh was killed along with 14 others in an Israeli airstrike in 2002, then-IDF Chief of Staff Moshe Yaalon said that he would not have allowed the operation to happen if he’d known it would kill that many others. In interviews over the years, other Israeli officials involved in the operation similarly stated that the high number of bystander deaths was a major error. (Stack, n.d.)

Local Call and +972 revealed that, by contrast, the assassination of Hamas battalion commander Wissam Farhat during the current Israel-Hamas war had an NCV of more than 100 people—and that the IDF anticipated that it would kill around that many.

An Israeli intelligence source interviewed by +972 Magazine claimed that time constraints made it impossible to “incriminate” every target, which raised the IDF’s tolerance for the margin of statistical error from using AI-powered target recommendation systems—as well as its tolerance for the associated “collateral damage.”

This matters to experts in international law and military ethics because of the doctrine of double effect, which permits foreseeable but unintended harms if the intended act does not depend on those harms occurring, such as in the case of an airstrike against a legitimate target that would happen whether or not there were bystanders. But in the case of the Israel-Hamas war, most lawyers and ethicists—and apparently some number of IDF officers—see these strikes as failing to meet any reasonable standard of proportionality while stretching the notion of discrimination beyond reasonable interpretations. In other words, they may still be war crimes. (Stack, n.d.)

The Military Forces of Israel have access to very sophisticated AI supported tools, similar to those of the United States, that not only permit, but require, the strictest application of International Humanitarian Law in the areas of distinction and proportionality. Failure to do so exposes Israeli authorities to war crime accusations and further isolation from traditional allies in Western Democracies.

References

Stack, L. (n.d.). Israel Defends Strike on School Compound as Condemnation Mounts. The New York Times - Breaking News, US News, World News and Videos. Retrieved September 12, 2024, from https://www.nytimes.com/live/2024/09/12/world/israel-hamas-gaza-war