A few thoughts on a touchy subject
A number of people have asked me for my take on one aspect or another of what is happening in Israel and Palestine. (In 1948, the UN said they each were entitled their own state, so until that changes, I will refer to them as such.) One of the more common themes that has come up concerns the significant disparity in casualties between Israelis and Palestinians, the specter of war crimes, and the frequently heard argument that “Israel is just defending itself.” I’m not going to express an opinion as to whether I think war crimes have occurred or endorse any actions of either side, but rather offer a view from 30,000 feet, sans bombast:
International law defines a number of acts that constitute a war crime. Some of them are very black & white, such as extrajudicial execution of civilians. Others require not just an act, but also a particular state of mind for the crime to exist.
When any country is attacked, international law holds that it can retaliate and defend itself using force proportionate to the attack it suffered. The defending state does not need to stop retaliating when the attack is defeated, but is entitled to continue using force to prevent a similar offensive attack from imminently recurring. This means that the scope of lawful retaliation is limited. A cross-border incursion by a few dozen troops cannot justify a full-blown air war.
The law also recognizes that civilians will be casualties of war. Following World War II, the international community took significant action attempting to limit that prospect – and to spell out who might be to blame when civilians are injured or killed. Contrary to what is implied in nearly all news reports, it is not automatically a war crime when civilians are killed in a military conflict.
So when are civilian deaths a war crime? For the sake of brevity, I’ll limit the discussion to the most obvious issues we are seeing in Gaza today. The primary case in which civilian deaths constitute a war crime is when they are intentionally targeted. The intent to kill civilians is a mental state and it can therefore be very difficult to prove. Typically, such allegations are proven through very convincing circumstantial evidence, but as intelligence technologies improve, the ability to prove such a mental state through hard evidence such as documents or recorded conversations is becoming easier, since communications about plans for a massacre are more likely to be intercepted.
In Gaza, at this time, no one in the public sector has enough hard factual information to confirm whether or not the Israel Defense Forces (IDF) have intentionally targeted civilians. As far as we know, there are no soldiers’ Facebook or Twitter posts bragging about the murder of Palestinian children. There are no emails exposing such plans. If something like that has happened, it will probably come to light (even if not for several years), as revelations of soldiers’ misdeeds have in the past occurred in Israel, just as they have in the U.S. Given the collective temperature of Israeli society following the kidnapping and deaths of the three teenagers at the apparent hands of a Palestinian splinter group, it’s not unreasonable to speculate that soldiers may have intentionally targeted Palestinian civilians – but speculation is not evidence, and at RealGeopolitik, it is my goal to deal in facts as much as possible. Set this one aside and wait for the hard facts to come in and be verified before drawing any conclusions.
Notwithstanding the lack of known facts concerning potential or actual targeting of civilians by the IDF, there remains a significant argument that the widespread civilian casualties in Gaza are, simply due to their numbers, evidence that Israel has intentionally targeted civilians in violation of international law. The sheer number of civilian deaths, the rate at which they have occurred, and the locations where they have occurred form a viable argument that the IDF is not upholding its obligation to refrain from targeting civilians.
However, that is not the end of the story. International law prohibits combatant groups from sheltering among civilians. This means the when Hamas militants hide among the people of Gaza, they are committing a war crime – because they are endangering those civilians. It doesn’t seem to get any press, but international law holds that when an opposing force attacks guerrilla combatants sheltered among civilians, the guerrillas have committed a war crime – not the force attacking them. Thus, when Hamas uses a school for its operations and the IDF attacks the school, if children are killed, Hamas has committed a war crime, not the IDF. It is important to note here that while the law is clear on this point, there are of course moral arguments against such actions. Irrespective of that, however, the IDF is still bound by the rule that retaliatory attacks must be proportionate, and there is certainly a rational argument that it has violated that rule – with part of the evidence being the gross disparity of deaths between the two sides.
All this is to say that, when considering if “Israel is just defending itself,” there are many factors to consider – few of which are getting any discussion in the news. Just as people say Israel is only acting defensively, I’ve heard people argue that Hamas is simply defending the people of Gaza. Remember this: The same laws apply to Hamas as to the IDF. The analysis is the same, but with one notable difference – Hamas has and continues to directly target Israeli civilians as a matter of admitted policy. That makes the analysis of Hamas’ actions simpler because it is essentially on the record endorsing and boasting about its own war crimes. (If Hamas limited its military actions to attacks against the IDF, it would have a stronger position vis-à-vis international law – though it would not be off the hook for war crimes on that basis alone.) While many regard certain IDF actions as directly targeting civilians, the fact that Hamas makes no bones about its disregard for the laws of war simplifies the analysis no matter how you cut it.
Though pundits may sometimes infer otherwise, war crimes by one party cannot legally justify retaliatory war crimes by another. Israel has to justify its actions with something more than a “fighting terrorism” argument. Likewise, Hamas cannot justify its actions simply by pointing to the Israeli occupation of the West Bank and its crippling blockade of the Gaza Strip. Indeed, there are rational arguments that both sides of this conflict have engaged in military actions in violation of international law. So beware any pundit who slants cleanly towards one side or the other. It doesn’t mean they are wrong, but it almost certainly means they are not dealing in whole truths.
