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The Magistrate

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Member since: 2001
Number of posts: 85,194

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You Are Quite Right, Sir, It Does Not

Israel may very well be committing breaches of the laws of war in Gaza now.

But there are a few things that need to be made clear in assessing that. There seems to be a widespread view that any risk, certainly any harm to non-combatants, is a violation of the laws of war. That is not true. When taking military action, a force must take reasonable precautions against harm to non-combatants. If a military action may put non-combatants at risk, the action is not a violation if the direct military benefit of neutralizing the target would be such that it could be reasonably seen as outweighing the risk to non-combatants. And, as observed before, if that risk to non-combatants flows from a decision by combatants to take up positions in which strikes against them would put non-combatants at risk, the responsibility for harm to non-combatants falls on the people who took up such a position, though it may be shared by the force which attacked them, if it did not in its actions meet the two criteria set out earlier. Still, it needs to be borne in mind that the fact that non-combatants have been harmed does not establish that the party which harmed them violated the laws of war. Reasonable precautions is not a standard that can only be met by perfection; one may take reasonable precautions to avoid a thing, and it may still occur. It is quite possible for an act which does produce a very great direct military benefit to have also done a good deal of harm to non-combatants.

The Israeli practice of giving warnings of where it will strike is certainly designed to meet the standard of taking reasonable precautions against non-combatant casualties. It probably does establish that reasonable precautions against harm to non-combatants are being taken. But one could still make a decent argument that the munitions employed, in so densely inhabited a place, and where much construction is so flimsy, present an unreasonable risk of harm to non-combatants.

Where Israel is on much shakier ground is the 'direct military benefit' standard. If combatants of one side in a battle, say, position a machine-gun in the living room of an occupied home, and if neutralizing that position allows there opponents to advance to a position that cuts off a large body of troops from supply, the matter is pretty clear-cut; the direct military benefit of destroying that machine-gun post outweighs the harm done to the non-combatants inhabitants of the house, or even nearby houses. But matters in Gaza are nowhere near so cleanly defined.

If it is a case of munitions being stored in a house, or a house is being used as a firing point or a command post, a decent military benefit can be readily made. But in instances where the point of the strike is to kill some individual militant, or to ruin his home and possessions, trying to claim some direct military benefit is gained by the attack is far too much of a stretch, and harm done to non-combatants in such an attack cannot possibly be said to have been outweighed by the direct military benefit gained, let alone be reasonably said to have have been outweighed. A good portion of the Israeli strikes in Gaza seem to have been of this latter sort, and are certainly grave breaches of the laws of war.

What can be readily observed here is that partisans of one side or the other in this conflict routinely condemn the criminal behavior of the opposing side, while ignoring or justifying their own. Persons who range themselves with the cause of Arab Palestine will cry up Israeli crimes, but will treat crimes of Arab Palestinian militants as justified by the right to resist, or by the greater power of their enemy, or even as of no consequence set beside the bestial behavior of the side they oppose. Persons who range themselves with the cause of Israel will cry up Arab Palestinian crimes, but will treat crimes of Israel as unavoidable in exercise of the right of self-defense, or justified by the tactics of their enemy, or even as of no consequence set beside the bestial behavior of the side they oppose. Where these things can be observed in a partisan's comments, it is clear that in neither case is there any attachment to the principles of law appealed to, but rather that the appeal to law is simply one more weapon being taken up to cudgel the foe. It is rather as if, where two gangs are feuding in a city neighborhood, members of one try and lay information against the other with the police: they do so not out of desire to see the law abided by, but to try and get the police to assist them in gaining a clear field for their own law-breaking. It is part of the wrestling for a claim to the moral high ground, which is always a part of the political side of armed conflict, and nothing more.
Posted by The Magistrate | Sun Jul 13, 2014, 12:40 PM (0 replies)

I Appreciate Your Kind Words Very Much, My Friends

Thank you.

Here is a bit from Mr. H. H. Munro, an especial favorite of mine....


MARION EGGELBY sat talking to Clovis on the only subject that she ever willingly talked about – her offspring and their varied perfections and accomplishments. Clovis was not in what could be called a receptive mood; the younger generation of Eggelby, depicted in the glowing improbable colours of parent impressionism, aroused in him no enthusiasm. Mrs. Eggelby, on the other hand, was furnished with enthusiasm enough for two.

“You would like Eric,” she said, argumentatively rather than hopefully. Clovis had intimated very unmistakably that he was unlikely to care extravagantly for either Amy or Willie. “Yes, I feel sure you would like Eric. Every one takes to him at once. You know, he always reminds me of that famous picture of the youthful David – I forget who it’s by, but it’s very well known.”

“That would be sufficient to set me against him, if I saw much of him,” said Clovis. “Just imagine at auction bridge, for instance, when one was trying to concentrate one’s mind on what one’s partner’s original declaration had been, and to remember what suits one’s opponents had originally discarded, what it would be like to have some one persistently reminding one of a picture of the youthful David. It would be simply maddening. If Eric did that I should detest him.”

“Eric doesn’t play bridge,” said Mrs. Eggelby with dignity.

“Doesn’t he?” asked Clovis; “why not?”

“None of my children have been brought up to play card games,” said Mrs. Eggelby; “draughts and halma and those sorts of games I encourage. Eric is considered quite a wonderful draughts-player.”

“You are strewing dreadful risks in the path of your family,” said Clovis; “a friend of mine who is a prison chaplain told me that among the worst criminal cases that have come under his notice, men condemned to death or to long periods of penal servitude, there was not a single bridge-player. On the other hand, he knew at least two expert draughts-players among them.”

“I really don’t see what my boys have got to do with the criminal classes,” said Mrs. Eggelby resentfully. “They have been most carefully brought up, I can assure you that.”

“That shows that you were nervous as to how they would turn out,” said Clovis. “Now, my mother never bothered about bringing me up. She just saw to it that I got whacked at decent intervals and was taught the difference between right and wrong; there is some difference, you know, but I’ve forgotten what it is.”

“Forgotten the difference between right and wrong!” exclaimed Mrs. Eggelby.

“Well, you see, I took up natural history and a whole lot of other subjects at the same time, and one can’t remember everything, can one? I used to know the difference between the Sardinian dormouse and the ordinary kind, and whether the wry-neck arrives at our shores earlier than the cuckoo, or the other way round, and how long the walrus takes in growing to maturity; I daresay you knew all those sorts of things once, but I bet you’ve forgotten them.”

“Those things are not important,” said Mrs. Eggelby, “but – ”

“The fact that we’ve both forgotten them proves that they are important,” said Clovis; “you must have noticed that it’s always the important things that one forgets, while the trivial, unnecessary facts of life stick in one’s memory. There’s my cousin, Editha Clubberley, for instance; I can never forget that her birthday is on the 12th of October. It’s a matter of utter indifference to me on what date her birthday falls, or whether she was born at all; either fact seems to me absolutely trivial, or unnecessary – I’ve heaps of other cousins to go on with. On the other hand, when I’m staying with Hildegarde Shrubley I can never remember the important circumstance whether her first husband got his unenviable reputation on the Turf or the Stock Exchange, and that uncertainty rules Sport and Finance out of the conversation at once. One can never mention travel, either, because her second husband had to live permanently abroad.”

“Mrs. Shrubley and I move in very different circles,” said Mrs. Eggelby stiffly.

“No one who knows Hildegarde could possibly accuse her of moving in a circle,” said Clovis; “her view of life seems to be a non-stop run with an inexhaustible supply of petrol. If she can get some one else to pay for the petrol so much the better. I don’t mind confessing to you that she has taught me more than any other woman I can think of.”

“What kind of knowledge?” demanded Mrs. Eggelby, with the air a jury might collectively wear when finding a verdict without leaving the box.

“Well, among other things, she’s introduced me to at least four different ways of cooking lobster,” said Clovis gratefully. “That, of course, wouldn’t appeal to you; people who abstain from the pleasures of the card- table never really appreciate the finer possibilities of the dining-table. I suppose their powers of enlightened enjoyment get atrophied from disuse.”

“An aunt of mine was very ill after eating a lobster,” said Mrs. Eggelby.

“I daresay, if we knew more of her history, we should find out that she’d often been ill before eating the lobster. Aren’t you concealing the fact that she’d had measles and influenza and nervous headache and hysteria, and other things that aunts do have, long before she ate the lobster? Aunts that have never known a day’s illness are very rare; in fact, I don’t personally know of any. Of course if she ate it as a child of two weeks old it might have been her first illness – and her last. But if that was the case I think you should have said so.”

“I must be going,” said Mrs. Eggelby, in a tone which had been thoroughly sterilised of even perfunctory regret.

Clovis rose with an air of graceful reluctance.

“I have so enjoyed our little talk about Eric,” he said; “I quite look forward to meeting him some day.”

“Good-bye,” said Mrs. Eggelby frostily; the supplementary remark which she made at the back of her throat was -

“I’ll take care that you never shall!”
Posted by The Magistrate | Thu Jul 10, 2014, 05:43 PM (0 replies)

Nothing Stops Hobby Lobby From Saying No Portion Of Salary Can Be used For Birth Control....

The employer no more provides the services insured than the employer provides anything an employee purchases with compensation received for working for the employer. The premium paid to the insurer is part of the employee's compensation; something the employee receives in exchange for labor. The matter is analogous to that of the 'employer's contribution' to Social Security: saying the payment under FICA is split between employee and employer is a mere cosmetic fiction, intended to disguise the full weight of the tax on the employee's salary --- the 'employer's contribution' is actually part of the wage paid, it simply is sent in payment of part of the tax on behalf of the employee by the employer. That the employer acts as the agent for the employees in purchasing health insurance for them does not alter this: the insurance is part of what the employee receives for labor, a portion of the compensation paid, and neither purchased by nor provided by the employer. One could, I suppose, have scruples about what one will do as the agent of another, and refuse to do something one is asked to do by another as her or his agent. But in a case where law directs a person acting as another's agent to do a thing, and one has scruples against it, the proper course is to decline the agency. Hobby Lobby, in short, would be free to not include health insurance as part of its compensation for employees, if doing so would require it to do something its owners had scruples over --- they would have to pay a fine, but what is a clear conscience without a price paid? What they do not have any right to do, cannot have any right to do, is require people to abide by their own religious beliefs as a condition of employment, which is what their exemption from a general requirement of law in structuring their compensation to employees amounts to. And if they can require employees to accept a compensation package that does not provide birth control as part of their health insurance, which is in fact stating that no portion of the compensation an employee receives as insurance can be spent on birth control, I fail to see any limiting principle in this decision which would prevent an employer from telling an employee no portion of the compensation you receive from me for your time and labor can be spent on something I personally find immoral. And you may be sure that sooner or later someone with sufficient gumption to try that will emerge, and the case be ram-rodded to the supreme Court....
Posted by The Magistrate | Wed Jul 2, 2014, 12:47 PM (30 replies)
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