Intent For A Nation: What is Canada For. Michael Byers

and the country was on high alert. The Israeli Defence Forces (IDF) had recently assassinated two Hamas leaders, Sheik Ahmed Ismail Yassin and Abdel Aziz al-Rantissi, and everyone was waiting for the retaliatory suicide attacks. Armed security guards searched everyone entering hotels, shops, restaurants, even the university campus. And it was not only Israelis whose lives were being disrupted: every evening, helicopter gunships thundered down the Mediterranean coast towards Gaza, returning early the following morning.

      My Israeli students were among the best I have taught. It helped that the subject matter of the course—the laws of war—was of direct relevance to them. It helped too that they had all served in the military, since Israel has a universal draft. Several were still serving, as the IDF had sent a few of their young lawyers to take my course. Not surprisingly, the students and I disagreed on a number of points, though always in a friendly and respectful manner. One of the most attractive things about Israel is the open and spirited nature of its public debates, even on matters of national security.

      The ability to disagree without being disagreeable showed itself again when, on my last full day in Israel, one of the students took me to lunch with his commanding officer, the senior lawyer advising the IDF. A colonel with a Harvard doctorate, she was not one for small talk. After just a few minutes, she cut to the chase:

      “There have been a number of missile attacks along our northern border. We’re going to respond with air strikes against some Hezbollah installations in southern Lebanon next week. What do you think?”

      I was taken aback. Governments do not usually consult foreign academics about their military plans. But I knew that my host was well aware that two bodies of law were in play: the first of them governs the recourse to military force; the second, known as international humanitarian law, limits the way soldiers may behave once a conflict has begun. I began with the former.

      “For starters,” I said, “any act of self-defence has to be necessary and proportionate. So, in order to stay within international law, you should target only those Hezbollah installations that have been used in the missile attacks.”

      My host shook her head: “That won’t prevent future attacks. We’re also acting pre-emptively.”

      “Well, in that case you’re still subject to the criteria from the Caroline case,” I replied, referring to an incident involving the destruction, by British and Canadian forces, of an American steamboat on the Niagara River in 1837. “The necessity of self-defence must be, quote, ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation.’ And I’m not sure that your air strikes fit these criteria, since you’re not planning on launching them until next week. Where’s the imminent threat?”

      “It’s an ongoing threat,” the Israeli lawyer explained. “We have to ensure that Hezbollah’s capabilities remain at a manageable level.”

      “Isn’t that the job of the Lebanese government?” I queried. “What you’re proposing is, after all, an armed intervention within the territory of a sovereign nation-state.”

      “The Lebanese government can’t control Hezbollah,” she scoffed. “If it could, we wouldn’t be having this conversation.”

      Although the law of self-defence sometimes permits military action against state sponsors of terrorism, this was a different argument. “You seem to be suggesting that Lebanon, within its southern territories, amounts to a failed state,” I said.

      “Precisely,” the colonel smiled. “We’re not violating international law by targeting Hezbollah installations in southern Lebanon because the writ of the Lebanese government doesn’t run that far.”

      The argument was familiar. During my years of teaching in the United States, students had sometimes argued that the UN Charter’s prohibition on the use of force against a country’s “territorial integrity or political independence” should not extend to countries—such as Somalia—without effective governments. Instead of contesting the point, I pursued its logical conclusion: “If that’s the case, you really must limit your strikes to those Hezbollah targets.”

      The Israeli officer arched an eyebrow: “Why?”

      “If you strike other targets, such as roads or airports, you’ll make it more difficult for the Lebanese government to do its job. At which point, your argument will become self-fulfilling since you’ll be helping to create a failed state.”

      A nod, followed by an assurance: “You’re right. Don’t worry. We’re focussed on Hezbollah.”

      At this point I pressed forward, changing the focus to international humanitarian law: “Also, you must never target civilians, or facilities such as water filtration or electrical plants relied upon by civilians.”

      “Ah, here we disagree!” the colonel exclaimed. “Collateral damage is allowed in situations of military necessity. And dual-use facilities are legitimate targets.”

      “What constitutes military necessity depends on the relative capabilities of the opposing forces,” I countered. “And the dual-use argument is a slippery slope.”

      The Israeli smiled again: “Perhaps.”

      “There’s a second reason you should do everything possible to protect civilians,” I continued. “Israel has to work particularly hard to maintain the moral high ground. Your reputation has suffered because of your treatment of the Palestinians.”

      “We’re completely justified in our treatment of the Palestinians,” the IDF lawyer shot back.

      I shrugged: “We can disagree on that, for today. But do me a favour, as someone who wants to sympathize with Israel. If you do launch air strikes, please limit yourself to Hezbollah facilities. Leave civilians—and the Lebanese government—alone.”

      AS IT HAPPENS, the IDF did in fact bomb southern Lebanon the following week, and they restricted themselves to Hezbollah positions. If only they had shown similar restraint two years later when, in July 2006, they responded to the capture of two of their soldiers by Hezbollah militants with a much more extensive bombing campaign. The IDF bombed Beirut’s international airport, striking at the heart of Lebanon’s tourism-based economy. They bombed arterial roads, bridges, power and gasoline stations and imposed an air and sea blockade. They promised, in the words of their chief of staff, t0 “turn back the clock in Lebanon by 20 years.”

      Although Hezbollah does pose a serious threat to Israel, as demonstrated by its ability to reach the Israeli communities of Haifa and Tiberias with missiles, the targeting of non-Hezbollah targets was both unnecessary and disproportionate. It also violated a central principle of international humanitarian law: that individual targets may only be selected if the direct military advantage anticipated from the strike exceeds the expected harm to civilians or civilian objects. Hezbollah’s rocket attacks, aimed at the general vicinity of Israeli cities and towns rather than specific military targets, were clearly illegal, but so, too, were some of Israel’s attacks.

      Of the more than one thousand Lebanese civilians killed, some were struck by Israeli missiles as they followed Israeli instructions to leave their homes and villages. Others were hit because blasted roads, bridges and gasoline stations had made it impossible for them to flee. More civilians died when bombs were dropped in densely populated neighbourhoods where the military advantage could virtually never justify the civilian harm. Others died later as hospitals, water filtration plants and sewage treatment facilities struggled with power shortages.

      Attacks on civilians or civilian infrastructure may never be justified by similar violations on the other side. Horrors such as that of the village of Qana, where more than two dozen Lebanese civilians died in a single precision air strike, cannot be balanced by lost Israeli lives.

      For all these reasons, I was staggered when Stephen Harper declared that “Israel’s response under the circumstances has been measured.” The prime minister’s position demonstrated an ignorance of international law and a lack of common sense. Even more staggering was Harper’s refusal to moderate his stance after eight innocent Canadians, all members of a single family from