Tikvah Fellow
Academic Year 2009-2010
Yishai Beer
Yishai Beer, 52, is a professor at the Hebrew University of Jerusalem Faculty of Law, specializing in taxation. He is also a Major General in the Israel Defense Force,(res.) and he served formerly as the President of the Israeli Military Court of Appeals. He is married to Hagit and they have six children.
Professor Beer's legal career began after he received a B.A. from the Hebrew University in Jerusalem and an M.A. from the London School of Economics. He earned his Ph.D. from the Hebrew University of Jerusalem and was admitted to the Israel Bar in 1985. He joined the law faculty at the Hebrew University in 1986. Since then, for more than twenty years, he has been teaching courses and seminars there in taxation and corporate law. In 1990-92, he was a Visiting Scholar at the Harvard Law School. His main field of interest is taxation of financial products and nonprofit organizations.
Research
Proportionality and Military Advantage Reexamined:
Just War Theory in a Changing Battlefield
The pattern of wars has been going through transformation. The traditional interstate, industrial war was among nations (and regular armies) aimed at the destruction of one's enemy (usually, in a bloody manner, consistent with the Clausewitz legacy) and the occupation of its land. Within the framework of the current reality, traditional types of wars are deferred, either in full or in part, by the prevailing new sort of limited war in which terrorists' activities and guerilla tactics are exercised against sovereign states. Adopting the international law to the new reality is not an easy task, nor is there consensus regarding the scope of the required measures. Israel’s struggle against “Hamas” and ”Hezbollah” faces this new reality. It brings about moral, legal and professional dilemmas. I would like to draw lessons from both my military and legal experience, to offer a new paradigm that might be also relevant to the Western world in combating terror.
The traditional "just war" doctrine sets out a range of criteria that ought to be fully satisfied if war is to be morally justified. These criteria are divided into two groups: the jus ad bellum ("the right to fight") and the jus in bello ("how to fight right"). The latter has two criteria that must be satisfied: Discrimination (between combatants and noncombatants) and Proportionality.
The Proportionality criteria means that it is not allowed to embark on a military action in which the harm done requires an unreasonable heavy price, mainly to innocent people, for the expected value of the military advantage. This comparison entails evaluating two aspects – military advantage vs. unreasonable damage to the innocent – neither of whose end result can be precisely predicted. Furthermore, the concept of "military advantage" is a dodging criterion even in the traditional unlimited, full scale, wars. Under the current reality - in the prevailing new type of limited war in which the long-term occupation of land has no relevance and the destruction of a "non-existent", usually, hidden among civilians "army" is not a realistic goal - both the classification and the quantification of the expected "military advantage" become much more difficult to evaluate.
My research intends then, to face this difficulty by combining new strategic thoughts with traditional legal and moral concepts.
