Warnings and Threats: Israeli Pamphlet Policy

Karl Muth asks if there is ever a right way for those about to commit it to warn of violence?

I’ve been following with interest the international legal and philosophical debate over Israel’s pamphlet policies. It has been the policy of the Israeli Defence Force (IDF), and likely specifically the Northern Air Defence Regiment (which has played a role in counterintelligence, broadcast, and misinformation campaigns in recent memory), to bombard areas with text messages and pamphlets prior to strikes. The pamphlet policy has been particularly prevalent in the current Gaza campaign, beginning with text message warnings (presumably sent through a mixture of terrestrial cell towers and airborne broadcasts) beginning on the afternoon of July 14.

Certainly, warning civilians before killing them does not excuse later killing them. And the extent to which the Israeli Defence Force, the Israeli Air Force, and the Israeli Navy (which has been involved in shelling allegedly civilian targets) might be inconvenienced or challenged by the civilian population density in Gaza does not excuse the slaughtering of civilians.

But the line I’d like to examine in this blog is at best a dashed one and I might go a step further and call it a distinction without a difference. The Israeli military – and the Bibi regime – has drawn a distinction between military warnings and forcible displacement in terms of the effect on Palestinian civilians. There is no difference to be found, in my view, between the two.

To take the matter out of the military context and to put it into the familiar context, imagine yourself stopped at a traffic light in the city at night. Imagine a carjacker approaches the car with a pistol and tells you, “I’m warning you that if you do not get out of your car, you’ll be killed by what will happen in one minute.” Is it really so different from the same pistol-toting carjacker telling you, “If you don’t get out of the car, I’ll kill you,” in an overt threat?

The question of what constitutes a threat is well-trodden legal territory. It is also fully-explored in the realm of legal philosophy. Here, I’ll discuss both briefly. Under the legal framework, the Israeli pamphlets constitute a threat. Under the lexiphilosophical framework, the Israeli pamphlets represent the imposition of Israeli law in Gaza.

In Occidental law (and in many Oriental legal traditions, such as Japanese law), the understanding of threats is inexorably intertwined with the understanding of self-defence. The Western legal tradition traces, usually, the definition of a threat to the codex justinianus, roughly 20% of the corpus iuris civilis (a set of laws and treatises dating from the time of Cicero).

In the codex justinianus, one sees that imminent threats are treated harshly and that a person was allowed to punish the party who posed a threat to the equal of the magnitude of the threat posed, “Let [the threatener] suffer the death which he threatened and incur that which he intended [to do to another.]” (Codex Justinianus, Tome III, Section XXVII, Subsection I, based on an able translation by W. Tysse of Oxford). We further see that even an advancing soldier with threatening intent can be treated the same way, “[L]et no one shrink form facing a soldier, whom it is fitting to challenge with a weapon, just as it is fitting to challenge a thief.” (Id. at subsection subsequent, The Comments of the Legislator Orator).

In legal philosophy, utilitarian Occidental philosophy (such as that espoused by Austin, Nussbaum, Posner, and others) suggests that any command from a sovereign entity under threat of sanctions for those who disobey is a law. The same school of thought tends to recognise sovereign states as those who declare or recognise themselves as such – in other words, the consent of the governed is not required to be prerequisite, unanimous, or uniform. By these definitions, Israeli is a sovereign state (even if many do not recognise it as a lawful country) attempting to exert legal control upon – and impose legal restrictions upon – Palestinians.

Palestinian resistance – through violence when necessary – is not a new concept or based in some alien system of ethics or law. Rather, it is rooted in precisely the concepts from which Occidental legal traditions flourished, the same legal traditions that grew from Roman Britannia’s periphery statutes into the common law of England and, later, the laws of the modern England that created and endorsed the first of a series of regimes that a majority of nations recognise as the State of Israel. The Palestinian reply to threats cannot be examined in isolation; to do so is to vivisect the conflict in Gaza, observing the function of each organ independently without looking at the organism within which these organs reside.

As the Roman commentators put it, when the environment is one of weapons, vilia arma (everyday weapons), then threats become violence. When the means for violence is quick to hand, threats must be taken seriously. The so-called warnings of Israel should not be heralded or congratulated. These “warnings,” by embodying and foretelling the violence they predict, are themselves violent. The preparation for the event cannot be allowed to excuse the event itself. That the victim first is shown the tool used to impale him does not make the weapon’s entry into his body less painful, less harmful, or more acceptable.