April 29, 2010

Quote of the Day

Israel’s second war, the Sinai Campaign, began on October 29, 1956. On the first afternoon, fearing that the war might spill over to the Jordanian front, an order was given to harshly enforce a curfew in the Israeli-Arab towns along the Jordanian border. The commander of one of the units of the Border Police, stationed at the town of Kfar Kassem, interpreted this in an extreme manner, and his troops shot 47 villagers in cold blood -- workers returning from work without having heard about the curfew. It was a cold-blooded murder of innocent villagers, with no alleviating circumstances.

This time the killers were put on trial; two of the commanding officers were sentenced to many years prison, although they were later pardoned, and this pardon was a blot on Israel’s record. The long-term significance of the case, however, was in its legal and educational import. Henceforth Israeli soldiers were told that it was their legally binding duty to disobey what were called “categorically illegal orders.”

Categorically illegal orders are a modern version of the sixth commandment, “Thou shalt not murder.” Soldiers are expressly forbidden to murder, even if ordered to do so on the field of battle; if they do, they will be court-martialled. The order they were given will not be relevant to their defense, since their moral duty as human beings supercedes their duty as soldiers. Such a ruling can be applied only rarely: a merely “illegal order” must be obeyed; the “categorically illegal orders” must be disobeyed. The definition given by the court was hardly helpful, unless you came from a tradition that had been using the distinction between killing and murder for three thousand years: a categorically illegal act is one above which a black flag flutters.

With such a literary metaphor, 18 and 20-year-old youths are armed and sent to battle. They must obey the orders of their commanders, under threat of court-martial, because otherwise an army cannot function; but they must not obey when they see the black flag, under threat of court-martial, because otherwise the society they defend with their lives may not be worthy of the sacrifice. This is the Israeli definition of Jus in Bello. It is not a philosophical construct for academic seminars but a component of training for battle. Israel’s record prior to the murders at Kfar Kassem hadn’t been bad; it was generally to improve from here on. The cold-blooded lining up of civilians to be shot has never repeated itself.

From Right to Exist: A Moral Defense of Israel's Wars by Yaacov Lozowick.

Posted by Michael J. Totten at April 29, 2010 11:48 AM
Comments
Seems a worthwhile read Micheal. Danger room has brought up the possible criminal liability of using drones while Armchairgeneralist has a op ed on global strike where they question whether new conventional weapons should be labeled WMD, given their destructive power. It is important that we put our strategies including global strike in the context of survival or prevention of domestic stability. We haven't made very passionate defenses of the very wars we are fighting. As I said before, I would arrest Ahmadinejad: http://ncr-iran.org/content/view/8091/1/

I have empathy for all those fighting on the ground and see how hard it is to be objective in the thick of the fight, but those calling the shots need to make their case clear. The planners and strategists employing men and machine have a moral line to walk too. Cold-blooded murder of civilians is an immoral act, but the devastation wrought by new weapons and targeted strikes by drones causes collateral damage. Civilians die and many are up-rooted. If we don't make the justification of our application of force clear, we feed the narrative that for us, and the Israelis, civilian death is unimportant rather than the sad but unavoidable consequence of defending ourselves. In Israel's case, their right to exist.

I do think the world doesn't understand what living under the threat of missiles and suicide bombers does to a people. Not too many Americans feel their right to exist is threatened. As of today, Hizb'Allah, Hamas, Farc, Quds and others haven't aimed missiles at us from the unpoliced regions of Mexico.....
Posted by: Maxtrue at April 29, 2010 12:25 pm
Such a ruling can be applied only rarely: a merely “illegal order” must be obeyed; the “categorically illegal orders” must be disobeyed.

Very different than the US military. In the US military only lawful orders must be obeyed. And as I recall my training, issuing an unlawful order is in itself a crime. That's the entire basis for rendering the "I was only following orders" defense invalid. It sounds as if that IS a valid defense in Israel.

This is quite a sketchy subject, though. For instance, an American GI who refuses an order based on it being unlawful better be damn sure that it really is unlawful and that he can prove it. Another problem is when subordinates receive two or more sets of conflicting orders. No matter what he/she does, they are violating a direct order while obeying another. Rule of thumb on that is "obey the last order, first" and let people further up the chain of command sort it out.
Posted by: Craig at April 29, 2010 1:40 pm
Actually, it seems you had it worse Craig. You had to always separate lawful from unlawful with that big burden of proof where as the Israelis have to determine only between unlawful and very unlawful.

http://mideast.foreignpolicy.com/posts/2010/04/28/is_the_israel_palestine_conflict_ripe_for_obama_s_intervention

"It is true that Palestinian leadership, as Haass states, remains weak and divided. But their weakness and division is the result of Israeli and American failure to reward their moderation. As far as Palestinians are concerned, aside from marginal improvements in the economy, for which the international donor community is largely responsible, it has produced only a hardening of Israeli positions on the core issues.

More to the point, the Palestinian divisions that Haass deplores were deliberately planned and fostered by Israel and the U.S. during the previous U.S. administration. There is something less than honorable in pointing to problems that our own misguided policies created as a reason the victims of our policies are undeserving of our support." FP

While it is true that these statements are mostly complete rubbish paraded as intelligent foreign policy analysis, it copies other media distorted analysis by ignoring the simple truth that the moral justification for much of Israel's behavior is based on their right to exist and the ignored reality on the part of the FP article that the divisions on the Palestinian side are over who is more extreme in their rejection of that right to exist. Did anyone at FP suggest to the writer that Palestinians no matter their situation are still the "aggressor"? Concessions by Israel? Israel handed back 100% of Gaza and the people there elected a terrorist organization (FP calls them moderates) who murdered Fatah and started a war with Israel by showering it with Iranian supplied missiles. Fatah on the other hand just recently had 30% or more of its military officers defect to Hizb'Allah. As long as we minimize this failure on the Palestinian side and even go as far as to blame Israel and the US for such rejectionism, many won't understand the dilemma of Israel's leadership and military. It is rooted in large part on the memory of the Holocaust and the existential threat of antisemitism, particularly the Jihadist brand mixed with Nazism.

One can understand the stark differences between US soldiers in Afghanistan (who presently are in more line of fire situations) and Israelis who when the fighting starts, are fighting for their existence against enemies whose charter still vows to destroy the Zionist nation. It makes for a fuzzy line between unlawful and very unlawful, but not so fuzzy, a reasonable person can't distinguish murder from justifiable "killing".
Posted by: Maxtrue at April 29, 2010 3:35 pm
Actually, it seems you had it worse Craig. You had to always separate lawful from unlawful with that big burden of proof where as the Israelis have to determine only between unlawful and very unlawful.

I don't agree, Max. The orders the Abu Ghraib perps carried out were unlawful. The proof of their illegality is in the text of the Geneva Conventions, which you would expect guards at prison which hosts enemy detainees to be very familiar with. They should not have carried out those orders. Their attempted defense that the blame should be placed on those further up the chain of command for issuing the orders is totally bogus.

According to this article MJT posted about, Israeli prison guards would be able to defend themselves successfully by claiming they were just following orders. I can't think of anyway to characterize that as a good thing.
Posted by: Craig at April 29, 2010 3:56 pm
Something more interesting:

http://news.bbc.co.uk/2/hi/entertainment/8651341.stm

The Power of Madonna, consisting of the pop star's hits performed by the cast, sold 98,000 copies in its first week of release, according to official figures.

Veteran rock act AC/DC were beaten into second spot with their latest album, Iron Man 2.


Madonna (cover) and AC/DC topping the US charts? What's the world coming to?

Nothing against AC/DC but I'm boycottong Iran Man 2 and every other Iran Man until they get Black Sabbath/Tony Iommi/Ozzie Osbourne to do it as it should be:

http://www.youtube.com/watch?v=LV8ntKE0G2w

http://www.youtube.com/watch?v=9LjbMVXj0F8

If we're all about the retro these days, we should at least get it right!
Posted by: Craig at April 29, 2010 4:49 pm
Craig, that is what I stated. YOU had it worse as you had to always question the legality of orders. The Israeli soldiers have only to determine unlawful from very unlawful. Israelis soldiers, had they been given the orders handed down at Abu Ghraib (and I think that perhaps some US interrogators went past their orders) would have likely obeyed the orders. They would have to stopped however when they thought their actions might "murder" an illegal combatant. (note the runor of torture at the present Abu Ghraib. In Iran, their clerics have approved sodomy as a lawful tool in breaking suspected criminals which include protesters, gays and select victims of non-muslin faith).

I prefer the US rules, but perhaps fighting for their nations existence, they don't want soldiers objecting to unlawful orders not directly causing "murder".

http://afghanistan.blogs.cnn.com/2010/04/29/u-s-officials-multiple-insurgencies-overwhelming-pakistan/

I would love to hear some protest over the "extra-judicial" killings by Pakistani soldiers. Israelis call homes to warn them in many cases. They often use munitions designed to limit collateral damage, while today a riot broke out as a result of a French raid in Afghanistan. The North Korean just blew up a South Korean boat with more muted Press than Hamas claiming Egypt gassed their tunnels (a flame claim). Russian actions in Georgia?



I am often amazed the bad rap American and Israeli soldiers are given. The anger does deep with the Marines.....

http://www.blackfive.net/main/2010/04/nancy-pelosi-is-a-liar-murtha-should-not-have-a-ship-named-after-him.html
Posted by: Maxtrue at April 29, 2010 5:24 pm
They would have had to stop however....
Posted by: Maxtrue at April 29, 2010 5:26 pm
Or perhaps Israeli guards at an Abu-Ghraib like prison would have seen orders to abuse prisoners as possessing that "black flag of illegality" and would have refused to obey them. Israel has had its own issues with torture - some time ago, the Israeli supreme court permitted "moderate physical pressure" against prisoners during interrogation, but then rescinded it when they were clearly going too far.

Another famous Israeli case does have to do with killing already captured terrorists - the "Bus 300" case.
Posted by: Rebecca at April 29, 2010 7:05 pm
http://www.blackfive.net/main/2010/04/nancy-pelosi-is-a-liar-murtha-should-not-have-a-ship-named-after-him.html

If I am disgusted I cannot even imagine how disgusted military people must.

Pelosi's hate for military is unbelievable. Well, I just cannot believe she could possibly be so dumb.
Posted by: leo at April 29, 2010 8:51 pm
Or perhaps Israeli guards at an Abu-Ghraib like prison would have seen orders to abuse prisoners as possessing that "black flag of illegality" and would have refused to obey them.

Yes, it's possible that "merely illegal" and "categorically illegal" mentioned in MJT's post are the same as "possibly illegal" and "obviously illegal" which would be equivalent to how things are in the US military. I find the wording problematic though.

About Murtha... his involvement with Code Pink ALONE should disqualify him from having any warship that carries Marines named after him. Their conduct at the Berkeley USMC recruiting center was disgusting and illegal. It's going to be a slap in the face to every Marine who boards that vessel, and an embarrassment whenever they have to tell their friends and family what ship they are on. If the Navy really wants a ship named after Murtha maybe they can find something more appropriate like an obsolete fuel tanker.
Posted by: Craig at April 29, 2010 10:31 pm
By the way, can any Navy personnel past or present who might be on here explain what the hell is up with Secretary of the Navy Ray Mabus? Is he TRYING to insult the Marine Corps? Obama needs a new Secretary of the Navy.
Posted by: Craig at April 29, 2010 10:36 pm
"... what the hell is up with Secretary of the Navy Ray Mabus? Is he TRYING to insult the Marine Corps? Obama needs a new Secretary of the Navy."

Wow, who could have predicted that a BO appointee would have no clue about the US military?
Posted by: Gary Rosen at April 30, 2010 12:21 am
"Such a ruling can be applied only rarely:"

Not exactly. If you are ordered to drive a car and you do not have a driving licence you can disobey
using this rule,
Posted by: da at April 30, 2010 1:01 am
Lozowick's book is excellent, a must-read for anyone who wants to better understand the collapse of Left in Israel (it sometimes doesn't look that way, because Leftist protests continue, but whereas groups like Peace Now used to be able to muster tens of thousands for a demonstration, there's now really just a small - albeit very vocal and media-savvy - hardcore group remaining) For those who don't know, Lozowick, whose background as a former archivist at Yad Vashem, and former Peace Now member, has a blog of his own, which is well-worth following:

http://yaacovlozowick.blogspot.com/
Posted by: Morey Altman at April 30, 2010 1:12 am
Morey,

It's pretty obvious to me why the left in Israel has collapsed. Every time Israel ceded land to the PA, the result was terrorism and dead Israelis.
Posted by: semite5000 at April 30, 2010 5:11 am
http://www.ynetnews.com/articles/0,7340,L-3883003,00.html

well A-hole is at it again with his buddies in Syria.

But the following takes the cake. It is perhaps even worse than Murtha's name on a marine ship. Have you heard of anything more twisted?

http://www.foxnews.com/world/2010/04/29/elects-iran-commission-womens-rights/?test=latestnews

This should give one an idea about how completely screwed up the UN is. It is a farce. Let's put NK on the Human Rights committee. If every America woman doesn't see this sick joke as a sign of the times, what will wake them up? Think BO will have any words of protest? Rice shouting in anger? Democrats? No, they're busy watering down sanctions not to include penalties for China and Russia on orders from the WH. Am I awake, or am I just dreaming this?

Nope, Israelis are the world's most troubling problem......
Posted by: Maxtrue at April 30, 2010 7:57 am
Excuse me, the Congo where the systematic rape of woman have occurred repeatedly is almost as insulting to woman as Iran's seat on the woman's rights committee. Zimbabwe is also a joke.

I can't think of a better example of Orwellian logic than what is going on at the UN. Please someone get this blight out of NYC......Of course disarming Hizb'Allah really meant giving them cover to arm themselves. Declaring Iranian arms illegal, the UN refrained from any enforcement mechanism. Hey Rice, you're doing a heck of a job!

I see Spencer has missed this story, instead pointing out that Sweden is banning the Mohammad episodes from South Park.
Posted by: Maxtrue at April 30, 2010 8:06 am
And one more for the morning news.......Happy Birthday Saddam....only in Syria:

http://www.google.com/hostednews/ap/article/ALeqM5iWMpk87HkRt3oIUCEoZSQPTyrxYwD9FCSRVO0

I guess Ahmadinejad missed this party during his stay in Syria on the way to the US.

Where's a stinger when you need one?
Posted by: Maxtrue at April 30, 2010 8:10 am
a bit pissed off while writing: Woman should be women. Sorry for the typos.
Posted by: Maxtrue at April 30, 2010 8:13 am
http://articles.latimes.com/2010/apr/29/world
/la-fg-0429-us-afghan-20100429 Media on DOD report

http://ht.ly/1F4mg DOD report

confusing yes....later
Posted by: Maxtrue at April 30, 2010 8:29 am
"If every America woman doesn't see this sick joke as a sign of the times, what will wake them up?"


I'm more saddened and disgusted by how the UN slapped every freedom loving Iranian in the face, especially women, who have been on the front lines of the opposition to the Islamic Republic.
Posted by: C.H. at April 30, 2010 4:08 pm
Craig -

The wording is indeed problematic. In IDF, the difference is made between something that the legality of which can be disputed (called an "illegal order") and something that is definitely illegal (called an "obviously illegal order" and defined by the court of law as an order that [in transliteration] "stabs the eye and makes one's heart revolt").

Abu-Ghraib -like situation would be an obviously illegal order.
Posted by: Abu Sa'ar at April 30, 2010 7:06 pm
Abu Sa'ar - it's the same under U.S. military law, though not quite as poetically put. This is from the U.S. Court of Appeals for the Armed Forces:

"The duty to disobey an unlawful order applies only to a positive act that constitutes a crime that is so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness." United States v. Huet-Vaughn, 43 MJ 105, 114 (C.A.A.F. 1995)

(And of course, Abu Ghraib was that kind of situation, which is why even the lowest-ranking participants were convicted and punished.)
Posted by: Joseph W. at May 1, 2010 12:53 am
http://israelstreams.com/?israelinsider.html?http://israelinsider.com/Views1/5054.htm

Well, this rant above spouted during Sharon's tenure shows your definition (translation)is still confusing Abu as some you see make the claim it is IDF's "duty to disobey" what settlers think are very illegal orders". I would say cold-blooded murder or lethal negligence seem the rational dividing line as lesser lines are easily blurred.

Don't the settlers think they're being stabbed in the eye and revolted in their hearts? In fact, such a yardstick by Palestinians is used to justify terrorism.
Posted by: Maxtrue at May 1, 2010 10:20 am
http://www.analyst-network.com/article.php?art_id=3447

Defining the legality of pre-emption. I thought we had done that before.......

Or is this now the Obama Doctrine being formulated?
Posted by: Maxtrue at May 1, 2010 10:39 am
I meant this from the report above: "In the same context the report quoted Dr. Chuck Freilich, a Senior Fellow at the Belfer Centre’s International Security Program and Israel’s former Deputy National Security Adviser for Foreign Affairs, as saying "In case Israel is actually sure and definite that any of its enemies is in possession of weapons that is capable of causing destruction to the Jewish State, it will pre-emptively destroy these weapons using all means including weapons of mass destruction pursuant to the principle: "Shoot first and then ask.” This undoubtedly involves the nature of legal orders.
Posted by: Maxtrue at May 1, 2010 10:45 am
Maxtrue -

Funny how this is so difficult to get across. It's obvious what an obviously illegal order is, at least to Israelis. It's a social convention, defined at the bottom line as whatever the judge will say it is in a given case.

It's like Stewart's famous definition of hardcore pornography - "I know it when I see it".
Posted by: Abu Sa'ar at May 1, 2010 5:37 pm
I disagree with both Maxtrue and Abu Sa'ar!

Maxtrue,

In case Israel is actually sure and definite that any of its enemies is in possession of weapons that is capable of causing destruction to the Jewish State, it will pre-emptively destroy these weapons using all means including weapons of mass destruction pursuant to the principle: "Shoot first and then ask.” This undoubtedly involves the nature of legal orders.

No, I don't think so. That's a decision politicians make. The decision to go to war or not go to war is not something people in the military have any control over, nor are they called upon to make pass judgment on the legality of a war.

Abu Sa'ar,

It's obvious what an obviously illegal order is, at least to Israelis. It's a social convention, defined at the bottom line as whatever the judge will say it is in a given case.

It's not reasonable to have such an expectation on soldiers to be able to successfully predict how a judge will interpret a law. In the US military it comes down to what's written in the Uniform Code of Military Justice and what's written in the relevant treaties that the US is signatory to, like the Geneva Conventions. If somebody refuses an order on the grounds it is unlawful they need to be able to point out the text of the law(s) being violated.

An example: When I was a student at Infantry Training School, I was on guard duty for a couple weeks there waiting to get picked up by a training platoon. One night, the feds dropped off a guy who had deserted during the Vietnam War, and had already been convicted of desertion 10 years earlier but had escaped after his court martial. They dumped him at ITS because it was closest to the Basilone Road Gate down at Camp Pendleton. And that was on a Friday night so we had him for the weekend, as we couldn't get anyone to come get him until Monday.

The next morning, the Guard Commander tasked me and another Marine with taking him to the chow hall. He gave us some orders in front of deserter dude, among which were "If he tries to run, break his knees".

Lawful or unlawful?

That was a lawful order, and I can explain exactly why. One of the authorizations for use of deadly force for Marines when they are under arms is: "To prevent the escape of a known felon". We would have been authorized to hit him in the head with our nightsticks, and not just in the knees. Our guard commander was ordering us to use a lesser degree of force than we probably would have otherwise.

But what if he'd ordered us to break the guys knees as a preventative measure so that he wouldn't even have the option of trying to escape? Lawful or unlawful? It's obvious, is it not?
Posted by: Craig at May 1, 2010 10:43 pm
That's right Craig,
Even in civilian law, if someone is trying to stab you and you have a gun, you can shoot him to defend yourself.
But you can't shoot him in the back if he is running away, no matter how tempting.
That's pretty clear, but there are other areas where its grey and one needs to use judgement with the boundaries of the law.
Going after a terrorist holding hostages for example.
But in those cases there is usually time to formulate options.
Posted by: yesjb at May 2, 2010 10:06 am
Craig, I was talking about the legality of using WMD as a pre-emptive measure. By the statement the Senior Fellow was quoted to have said above, IF Israel determines Hizb'Allah has scuds, THEN Israel can nuke Southern Lebanon? Or are they talking about neutron bombs or something else?

The whole international slam of Israel in Gaza and Hizb'Allah (why they "lost") was "disproportionate force". To really wipe out Hamas and Hizb'Allah would have flatten Gaza and Southern Lebanon, something Israel was not prepared to do. In terms of "legality" on the international stage, "use of force" is certainly the new hammer. Even our Marines get saddle with restrictions on the use of force while the enemy is playing unrestricted warfare.

You are right however that politicians make the calls, but I think the use of force ties into the idea of illegality first mentioned involving the moral argument. I suspect this debate goes right through the IDF. Would it be a legal order to nuke a terror base in the Bekka Valley as a pre-emptive strike? The scenarios bandied about these last several weeks may involve tens of thousands of casualties. We then introduce WMDs (a topic I think I asked about a year ago). Perhaps some conflict between policy makers involves the idea of legality at the very moment, more and more fire power is delivered by automatons.....

Does this have much bearing on the soldier in the field? I don't know.

I suggest to Abu that torture, rape, terrorism, murder, genocide are the "acts" we abhor. I think we all have a reasonable idea of those things. Quite a few thing can fall in that pot.
Posted by: Maxtrue at May 2, 2010 10:36 am
Perhaps better shackles?

Preventative restraint is breaking ones knees? Then you have to provide medical attention. Seems pretty silly.

Probably a legal order but the commander seems a bit a dick. I rather doubt the individual could not have been restrained.

Again, I was talking more about the use of force in the field, not exacting some revenge on a deserter. What if he was a terrorist involved in IED deaths? Break his knees?
Posted by: Maxtrue at May 2, 2010 10:47 am
This is just too funny. http://www.wired.com/dangerroom/2010/04/video-militarys-robotic-pack-mule-battles-the-mud/

He isn't concerned about legal...lol.
Posted by: Maxtrue at May 2, 2010 12:10 pm
I'm sorry, I meant this video: http://www.youtube.com/watch?v=P0s7aRUIoTw&feature=channel

From boat to mountain top

This is amazing too: http://www.youtube.com/watch?v=Y2KkGFuRLew

http://demonstrations.wolfram.com/ATheoJansenWalkingLinkage/

http://www.youtube.com/watch?v=5OR8-775Rv4&feature=related
Posted by: Maxtrue at May 2, 2010 12:33 pm
yesjb,

That's pretty clear, but there are other areas where its grey and one needs to use judgement with the boundaries of the law.
Going after a terrorist holding hostages for example.


That's not a gray area.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=32:4.1.1.1.3&idno=32

(a) Deadly force is destructive physical force directed against a person or persons (e.g., firing a lethal weapon). Use it only in extreme need, when all lesser means have failed or cannot reasonably be used. Use deadly force for one or more of the following reasons only:

...

(4) To prevent serious offenses against a person or persons (e.g., armed robbery, rape, or violent destruction of property by arson, bombing).

(5) To apprehend a suspect believed to have committed any of the types of offenses named in paragraphs (a) (2), (3), and (4) of this section.

Both of those apply. A hostage taker is a dead man if engaging forces have a reasonably good chance of eliminating him without endangering the hostage(s).

This is the one I was referring to:

(6) To prevent the escape of a prisoner (when authorized by a commander or other competent authority and reasonably necessary).

I note that substantially looser than it was when I was in. It now applies to any prisoner, not just those who have been convicted of serious crimes.
Posted by: Craig at May 2, 2010 1:58 pm
Craig, I was talking about the legality of using WMD as a pre-emptive measure.

Which is not a decision the military gets to make. At least, here in the US. The government as a whole makes such a decision, and military personnel would have to assume that if their Commander in Chief (President of the US) and the US congress authorized it, that it was legal.

The whole international slam of Israel in Gaza and Hizb'Allah (why they "lost") was "disproportionate force".

Which is a bogus claim. But I seem to recall an incident when an Israeli soldier was ordered to shoot a Palestinian protester (who was unarmed and on the ground) in the leg, and he did so. My recollection is that he wasn't charged with any crime. That's a problem, for me. Allowing people to use the "I was following orders" defense when they have personally broken the law, encourages people to follow illegal orders.

Preventative restraint is breaking ones knees? Then you have to provide medical attention. Seems pretty silly.

Marines are silly that way. What can I say?

Probably a legal order but the commander seems a bit a dick.

Definitely a legal order. See my previous comment. As for being "a bit of a dick", well... we're talking about Marine Corps grunts here, right?

I rather doubt the individual could not have been restrained.

You're right. He could have been left rotting in the D-cell and then tossed MREs and canteens twice a day. That's what I would have done.

Again, I was talking more about the use of force in the field...

I thought you were talking about preemptive nuclear strikes? I gave you a real world example instead, and you don't like it? Weren't you the one who was claiming these things were in actuality hard to understand? Now it seems you are trying to make a clear-cut contrast between a lawful order and an unlawful order into something of a quagmire, when it isn't. Trust me... anyone who has been an infantryman on active duty in the USMC for any length of time has similar stories to tell. It's not all fun and games like on the blogs where we get to debate the finer points of law and discuss our moral objections, or lack thereof.
Posted by: Craig at May 2, 2010 2:19 pm
CRAIG,
What I meant by "grey" was how to best disable the hostage-takers while maximizing the survival chances of the hostages, not whether there was any debate about the going after the terrorists.
Posted by: yesjb at May 2, 2010 2:24 pm
Maxtrue, in regards to your "better shackles" argument, I just saw this in that DoD federal law link:

(d) Entrapment, i.e. , inducing someone to commit an offense in order to prosecute that person, is not permitted in law enforcement or security duties.

That's new! It seems like it might need some fine-tuning though? What of the purpose for inducing somebody to commit an offense is so that you can break his knees, and not so that you can prosecute him? Well, in any case the federal gov't seems a lot more on the ball than they used to be, and that's a good thing.

What if he was a terrorist involved in IED deaths? Break his knees?

If he was trying to escape? I suspect he'd be shot dead. But I seriously doubt a terrorist detainee would ever be escorted to a military mess hall to have a decent meal sitting alongside US military personnel, whether in restraints or not.

yesjb,

What I meant by "grey" was how to best disable the hostage-takers while maximizing the survival chances of the hostages, not whether there was any debate about the going after the terrorists.

Ah, ok... that's outside the scope of this discussion though, isn't it?
Posted by: Craig at May 2, 2010 3:06 pm
Craig -

Reasonable of not, that is exactly what is expected of IDF soldiers - to correctly judge the situation as a judge would. As Lozowick said, it's probably a cultural thing. Basically, IDF soldiers are not expected to know the finer points of the law. If something seems obviously unlawful, you don't do it. If it doesn't, you do.

And if you've made the wrong choice it's up to the judge to decide whether you can be exonerated.
Posted by: Abu Sa'ar at May 2, 2010 6:18 pm
Basically, IDF soldiers are not expected to know the finer points of the law.

That seems odd, since US Marines are required to memorize them, and Marines are not exactly known as scholars.

If something seems obviously unlawful, you don't do it. If it doesn't, you do.

In other words, it's up to their own personal morality?

And if you've made the wrong choice it's up to the judge to decide whether you can be exonerated.

If you are never charged, then the judge never gets to make a decision on the matter. And not only that, what this post says about IDF being required to obey "merely illegal" orders lets them off the hook - legally - even when they do knowingly commit illegal acts. Presumably, whoever issued the illegal order is then held responsible but that's quite problematic since that individual didn't personally commit the acts. He/she can only be charged with a lesser crime of issuing unlawful orders.

This system seems to me to have been deliberately designed to create a large gray area.
Posted by: Craig at May 2, 2010 8:15 pm
Craig, thanks for the view.....
Posted by: Maxtrue at May 3, 2010 3:07 pm
There was a big article in the newspaper not too long ago about the Kafr Kassem incident. It might interest people to know that these same repellant orders were given to the commanding officers of four districts, and three of them refused to carry them out. Only the officer in charge of the Kafr Kassem district complied. It's a shame that it wasn't four out of four, but still, if three out of four Nazi officers had refused to comply, the holocaust never would have happened.

Israelis in general are characterized by a high level of independance and the attitude that "I'm as good as you are, if not better." They don't have a problem saying no, even in the army. This leads to other problems, but Israelis are fairly immunized from any serious "heart of darkness" scenarios which are always characterized by the inability of people to refuse.
Posted by: MarkC at May 4, 2010 1:36 am
MarkC,

Israelis in general are characterized by a high level of independance and the attitude that "I'm as good as you are, if not better." They don't have a problem saying no, even in the army.

That may work for the Israelis or it may not(Shabra and Shatila massacres?)

I agree that the IDF has a much better track record than most. I've got a big problem with leaving such matters to the discretion of individual soldiers, though. What happens if the overall quality (in MORAL terms) of IDF soldiers should plummet? What's to prevent soldiers from knowingly issuing illegal orders, and prevent soldiers from knowingly carrying them out, just because they want to?

This leads to other problems, but Israelis are fairly immunized from any serious "heart of darkness" scenarios which are always characterized by the inability of people to refuse.

I disagree.

http://en.wikipedia.org/wiki/My_Lai_Massacre

Was that caused by an inability to refuse orders?

In a separate trial, Captain Medina denied giving the orders that led to the massacre, and was acquitted of all charges, effectively negating the prosecution's theory of "command responsibility", now referred to as the "Medina standard". Several months after his acquittal, however, Medina admitted that he had suppressed evidence and had lied to Colonel Henderson about the number of civilian deaths.[34]

Most of the enlisted men who were involved in the events at My Lai had already left military service, and were thus legally exempt from prosecution. In the end, of the 26 men initially charged, Calley's was the only conviction.

Some have argued that the outcome of the My Lai courts-martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals.[35] Secretary of the Army Howard Callaway was quoted in the New York Times as stating that Calley's sentence was reduced because Calley honestly believed that what he did was a part of his orders — a rationale that stands in direct contradiction of the standards set at Nuremberg and Tokyo, where German and Japanese soldiers were executed for similar acts.
Posted by: Craig at May 4, 2010 8:34 am
Craig -

Different cultures. We're not required to memorize the law, that's the duty of the commanding officer. Moreover, if a commander gives me an illegal order (not an obviously illegal one, mind you) and the court agrees that it's not an obviously illegal order, I won't be punished. But the officer will be punished for both giving the order and having it executed.

So IDF puts much more responsibility on the officers and less on the soldiers (compared to USA military). I would presume it has something to do with IDF being a conscript army. The officers volunteer to both become officers and serve much longer than the minimum.

Makes more sense?
Posted by: Abu Sa'ar at May 4, 2010 1:08 pm
I also think the cultural aspect should be better explained.

Israeli society is very informal. Even the military is very informal, especially compared to USA military. We're a tiny state with a tiny population, everybody knows everyone else. When you're giving an illegal order, you're not giving it to some guy who lives 3000 km away from you, you're giving it to your niece's boyfriend or somesuch.

We're also a very judgemental society. If you execute an illegal order, you'll have to contend with your family, your friends, your neighbours -and there's nowhere to run from them unless you're going abroad. And even then the Israeli diaspora will know, and you'll be alone.

We also don't have a constitution; judges have great freedom in interpreting the laws and precedents which serve in its stead. Far from an ideal state of affairs, but it works because of the culture.
Posted by: Abu Sa'ar at May 4, 2010 1:22 pm
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Winner, The 2008 Weblog Awards, Best Middle East or Africa Blog

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