I found this entry by blogger Steve Sachs (via Oxblog), which addresses the underlying issue - that the Geneva Conventions have very little to say about persistent offenders:
"Where is the Outcry?" I recently received an email over a mailing list with a link to this BBC report, under the subject heading "Where is the Outcry?" The report described the destruction of houses in the town of Rafah, Gaza, by the Israeli military.
A few hours later, I made the following comments over the list, which I've decided to re-post:
If you want a cynical, non-justificatory answer, I'd say that most people react to stories like this by immediately filing them under the "More Violence in Middle East" category, and don't pay them any more attention. People tend to get desensitized to long-running violence, even if that's a horrible way to respond to suffering.
A somewhat more sophisticated answer would be that it's hard to know how to feel about a story like this without knowing all the facts. I think destroying houses is generally awful, mainly because I don't see how the destruction of the house per se can be of military necessity. To me, something like this smacks of collective punishment, intended to make others pay for the wrong actions of a few.
However, suppose for the moment that the Israeli army is right in claiming that the houses it destroyed had been used to hide illicit weapons tunnels--not an uncommon thing, unfortunately, on the Egyptian border--or as safe houses for gunmen. The case might then be different, and the army might have a legitimate reason to want to clear the area, either to prevent the tunnels' operation or to deny the militants shelter. Provisionally, the army would then have an obligation to give the civilian inhabitants somewhere else to live. However, if the tunnel or the gunmen had been operating with the inhabitants' knowledge and consent--how many of us would notice weapons being smuggled up from the basement?--this might complicate their status as non-combatants. (If I willingly quarter combatants in my house, can I claim non-combatant status when my house is fired upon?) The distinction is even further muddied by the fact that this is a conflict in which all the hallmarks of organized armies--clear military hierarchy, uniforms and insignia visible at a distance, carrying arms openly, conducting military operations in accordance with the laws and customs of war--are notably absent.
Now, I don't carry any water for the Israeli army, and I have no idea whether its factual claims are true. (The Israeli Supreme Court, in rejecting petitions on Sunday from residents of Block O of Rafah, had required that any destructions of homes take place only in the circumstances described above, but there's no easy way of knowing whether that decision was followed.) But I do think it's important to note that even in what could be seen as a clear-cut case of collective punishment, there can still be the possibility of legitimate motives for the military's actions. In a conflict where at least one party attempts to blend into the civilian population, civilians will be inevitably drawn in, either by simple error or by the explicit design of those who use them as human shields. In such a context, everything seems to depend on the exact fact pattern surrounding the house's destruction. (It's notable in this context that the BBC reporter didn't see the area firsthand--admittedly, due to Israeli restrictions--but rather spoke to Mrs. Abu Libdeh via cell phone.) I think it's perfectly possible for someone who shares your moral concern for the destruction of innocent people's houses to feel unready to join the outcry--to be inclined to reserve judgment, until they feel they have a better grasp of the facts.
(To me, these issues also point to a deep and pressing question in the ethics of conflict -- how may an organized military act when facing a party that does not respect the laws of war (especially the division between soldiers and non-combatants)? Can we develop a "non-ideal theory" of warfare? The laws of war, as they currently stand, seem unprepared for their own routine violation. The doctrines stick to the easy stuff, condemning both sides equally -- the party who hides arms in a place of worship, and the party who raids the place of worship in response; the party who takes cover among civilians, and the party who fires on the crowd. But although this all-around condemnation may be satisfying, and assure us of clean hands, it doesn't seem to give us any tools for describing how we should proceed, should we find ourselves in the middle of this conflict, and should surrender not be a moral option. Do we just accept Thomas Nagel's argument in "War and Massacre," that there are some situations in which both choices are morally prohibited? Or do we draw up new rules that distinguish between different kinds of civilians, and that take account of our opponents' responsibility for their own immoral actions?)
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