22 November 2007 - Israel/Palestine: Week 10

This week was basically a continuation of the last. We had intended to focus on the legality of Israeli responses to Palestinian terror. The professor had even tried to invite a couple of Israeli experts to speak about the issue, but none could make it. So discussion revolved, once again, around a series of hypothetical questions:

The first was: would it be justified for Palestinians to kill Israeli civilians in order to lure an Israeli military patrol to an area, where the soldiers could then be killed? I briefly considered refusing to answer the question. It seems we're on a desperate search to find a way to justify Palestinian terror against Israelis.

This hypothetical was joined to another: Would it be justified for Israel to attack a building in which there were known to be twenty Palestinian guerilla fighters, if there were also twenty civilians inside the building? In other words, was anyone willing to justify the killing of civilians in one circumstance and not the other?

This was clearly a trap, but a rather clumsy one, and I wasn't taking the bait. When the professor was asked to elaborate on his first hypothetical, he added the assumption that the Israeli patrol would kill 100 civilians in retaliation if they were not stopped. I interjected and asked the professor whether he could think of a single case in the Israeli-Palestinian conflict where this had actually happened. He could not, and said he had been thinking of U.S. soldiers in Vietnam, or Iraq.

I didn't bother to ask about the second situation, where the setup is realistic but the choice is not. Faced with the question of whether to kill large numbers of civilians in order to hit a terrorist target, Israel usually decides not to fire. I can think of a few exceptions, especially in the Second Lebanon War, but there are many known cases (and doubtless many unknown ones) where Israel has held back.

I took the view that in neither case is killing civilians justified. In the second situation, one might allow for the killing of civilians in the midst of a desperate war, but under most circumstances one would first need to know whether it would be possible to arrest the guerilla fighters, to surround the house, et cetera. The terrorists want Israel to kill Palestinian civilians almost as much as they themselves wish to kill Israelis, and Israel shouldn't oblige.

There are actually some interesting and nuanced attempts to deal with these issues in the case history of the High Court of Israel (subject of an interesting article by Isabel Kershner in today's New York Times), but we didn't bother with any of that. Nor did we address the High Court's decisions on the route of the security barrier, subject of another hypo.

Here, we were asked: is the "wall" permissible in order to protect the lives of Israeli settlers--never mind Israelis in pre-1967 Israel? The corect reponse is that it is, but the extent to which it is may depend on a proportionality test that weighs the lives saved against the cost to the Palestinians. That's partly why the barrier doesn't encircle every remote settlement.

This response, given by one of my fellow students, was mocked as an acceptance of the proportionality test that the same student had allegedly rejected when denying that Palestinians had the right to kill Israeli civilians. She started to defend herself but in the end seemed to decide it wasn't worth the trouble.

Later, a self-proclaimed pacifist who nevertheless was the only person in the entire class to justify outright the killing of Israeli civilians went on a tirade against the security barrier, claiming that international law recognized the Palestinian claim to East Jerusalem. By then I'd had enough and interjected that he was wrong. The professor gave me the last word in the discussion but at this point it had just become silly.

If I've let on a bit more than usual about the substance of our classroom discussions, that's because I think they've crossed the line. We're no longer discussing legal issues in the Israeli-Palestinian conflict--indeed, people who bring the law into the discussion are immediately put on the defensive.

Instead, we're asking, in effect: "Under what circumstances would it be OK for Palestinians to kill Israelis, and under what circumstances would it NOT be OK for Israelis to kill Palestinians?" Not only is this completely unproductive as far as the search for peace goes, but the morbid bias against Israel makes my stomach turn.