Of all the English-language columnists in the Israeli press, there is only one who consistently writes stuff that I wish I’d written myself: Haaretz’s Bradley Burston. I don’t always fully agree with him – he’s generally a bit to my left politically – but he’s always thoughtful, and, unlike many Haaretz writers, he’s never so doctrinaire as to render himself irrelevant.
Of course, there’s no point in writing a blog post simply to tell the world (OK, a very very small portion of the world) that you agree with something; to blog is to quibble, after all. So my lead paragraph is there simply to soften you up for what follows: a detailed disagreement with Bradley Burston.
In his recent column “We can’t be war criminals, we’re Palestinian”, Burston quite correctly argues that Palestinian use of Kassam rockets against Israeli towns constitutes a war crime; and he brings in Human Rights Watch to back up his claim. So far, so good; but Burston also invokes HRW to support his contention that Israel committed a war crime in its shelling of Beit Hanoun, which resulted in the tragic killing of nineteen noncombatant Palestinian civilians. I believe that it is unfair to “convict” Israel of war crimes in this manner, despite the fact that I do not have a great deal of confidence in our military and political leaders’ wisdom or motives; and I wrote Bradley Burston to explain why (correspondence is reproduced with Mr. Burston’s permission):
Dear Mr. Burston:
As happens annoyingly often, you’ve written a column that I wish I’d written myself. Thanks for the good writing and the astute analysis.
I have one quibble with your argument regarding recent events in Beit Hanoun: You seem overly ready to convict the IDF of a war crime in the killing of 19 Palestinian noncombatants, considering that the law on the subject is highly ambiguous.
International law indeed requires that military attacks be directed only at military targets. Human Rights Watch contends that the standards used by the IDF in aiming and timing its artillery attacks are such as to constitute a war crime; but I don’t think they successfully make that case. The problem is that while international law does require certain intentions in targeting, the relevant treaties do not establish any particular standard for “quality control” in executing attacks; that is, there is no well-defined boundary between “legitimate” unintentional killing of civilians and illegitimate attacks carried out with reckless disregard for civilian deaths.
Lacking such a standard, there is no reliable way to judge the IDF’s shelling of Gaza on purely objective grounds.
According to HRW, “the IDF confirmed that it had fired 12 artillery shells at the site, having missed its intended target 500 meters away.” It would seem to me that if the shells that killed the Athamna family fell 500 meters from their designated target, the prima facie interpretation of the incident is that it was a tragic but non-criminal error. Since the legality of an attack is based on its intention (that is, its target) the attack does not become a war crime simply because of an error in aiming weapons – as long as a good-faith effort was made to procure accurate weapons and aim them properly.
HRW further claims that “the evidence suggests that Israel’s day-old information that homemade rockets had been launched from the area, with no specific information that rockets continued to be launched from the area, was an insufficient basis for considering the area attacked to be a legitimate military target.” This claim is problematic for two reasons: first, requiring “specific information” about Kassam firing in “real time” would make most forms of military interdiction of such firing virtually impossible, as Kassam crews arrive, set up their launcher, fire their rocket, and leave again within a very short span of time. The best that can possibly be done is to identify areas that are routinely used for firing Kassams and are not overly close to civilian dwellings or facilities, and then to try to time interdiction fire to achieve best results with minimum risk to the innocent. The second problem with HRW’s claim is that it is completely irrelevant: If the IDF artillery was off-target by 500 meters, the timing of the shelling was not the primary cause of the tragedy. Presumably, had the shells been aimed accurately, tragedy would have been averted even if nobody was firing Kassams from the target zone at the time.
Ultimately, the determination of whether the IDF shelling of Beit Hanoun constituted a war crime can be made only on somewhat subjective grounds:
- Did the IDF procure and use weapons that are normally considered accurate and reliable?
- Did the IDF select targets taking proper account of the accuracy and precision of its weapons?
- Did the IDF properly train its artillery crews to avoid targeting errors?
- Did the IDF select targets based upon the best intelligence that could practicably be obtained?
- Did the IDF select what it believed to be the best available tactics for combating Kassam fire while minimizing danger to innocent Palestinians?
And lastly – and perhaps most importantly:
- Did the IDF express and promote an attitude of proper care to avoid killing noncombatant civilians whenever possible?
(This last question is really the key: If the IDF acted with the proper attitude and intentions, it is innocent of war crimes even if some soldiers botched an operation or equipment malfunctioned; but if the IDF exhibited reckless disregard for the lives of innocent civilians – or, indeed, intended that innocent civilians be killed – then Beit Hanoun was a war crime.)
I cannot confidently assert that the IDF is entirely innocent regarding the Beit Hanoun tragedy; I simply do not know the answers to the questions I’ve asked above. (I’m fairly sure that the IDF’s artillery is normally accurate and reliable; but as I have yet to see an explanation of why the shells were fired inaccurately, I’ll assume that even this question remains open for now.) But until and unless answers to these questions do become available, it is unfair to “convict” the IDF of a war crime in Beit Hanoun. There is, I believe, a reasonably high probability that the shells were fired off-target due to legitimate (i.e. non-reckless) human error; and if this is the case, no war crime took place even given the sad results of the shelling.
Bradley Burston responded thus:
Thanks very much, Don, for your thoughtful letter. I believe that the crime here was not that of the gun crew, nor of the spotters, but of [Israeli Defense Minister Amir] Peretz and senior officers in the Southern Command and the General Staff, who lobbied for and gave the green light to artillery shelling even though more accurate means were available, and even though they had been warned – both by precedent in Gaza and Lebanon, and by predecessors in senior posts – that something very much like Beit Hanun was a very likely possibility.
To which I responded:
Dear Bradley –
Thanks for your kind response.
Indeed, if Peretz and the relevant IDF commanders believed that more precise means were available to combat Kassam launches, the decision to use artillery was problematic – and perhaps even criminal. That leaves us with two key questions:
- What information did Peretz and the generals have regarding the likelihood of a Beit-Hanoun-style disaster based on extensive use of artillery, particularly in comparison to the risks involved in using alternative means? What information did they have regarding the effectiveness of the various means of attack, as well as the risk to our own forces (e.g. from in-person operations)? (It may also be relevant to consider that if the Beit Hanoun disaster occurred because of human error, other methods of attack might be equally prone to human error.)
- Assuming that the answer to (1) would lead a reasonable person (generally defined as someone closely resembling me) to choose something other than artillery, why did our military leaders choose artillery?
I’m not sure that there really are measures available to the IDF that would effectively combat Kassams without endangering Palestinian civilians – particularly given that (as I see it) a large part of the motivation behind the Kassams is to provoke Israeli responses that would lead, sooner or later, to a Beit-Hanoun-style “massacre”. What method do you think would be both effective and safe?
At the same time, I must admit that I don’t have a great deal of confidence in the decision-making abilities of our political or military leaders; too often they seem to be playing to the local audience (which, judged by Haaretz or JPost forum participants, is rather bloodthirsty) rather than understanding the implications of their decisions in a broader context. But lacking a detailed answer to the questions above, I’m still not convinced that Beit Hanoun was a war crime, as opposed to a sad and stupid – but non-criminal – fuck-up.
That is as far as our discussion progressed. I’ve done a little further research, just to clarify where the lines are drawn regarding what is a war crime and what is not. It seems that the subject is a rather complex one: the Hague and Geneva Conventions do not draw precise boundaries between legitimate warfare (which is never a clean business, rules or no) and war crime; and there is a substantial gulf between the strict interpretation of the various Conventions advocated by Human Rights Watch and other NGO’s active in the field, and the much looser interpretation reflected in the actual history of war-crime prosecutions.
As both Burston and I have pointed out, it’s quite common – and wrong – for parties perceived as the “underdog” to be given a pass regarding the rules of war. “Enlightened Public Opinion” is quick to condemn Western governments for any perceived violation of the rules (shooting at mosques, for example), but is strangely silent when Third World irregular forces commit flagrant violations of the same rules (like hiding combatants and arms in the aforementioned mosques, drawing Western forces’ fire). This inconsistency undermines the principles on which international law is based; if the rules of war are to have any meaning at all, they must apply to all combatants equally.
There is no real question, then, that Palestinian Kassam attacks and Hezbollah’s Katyushas fired at northern Israel are war crimes, regardless of the legitimacy of Israel’s military tactics. Weapons that cannot be aimed precisely enough to hit military targets are of use only to terrorize and kill civilians; and the use of such a weapon is thus a clear sign of the intent to attack civilian targets – precisely what the Conventions forbid.
But just as Israel’s military tactics, legitimate or not, do not justify our opponents’ violations of the rules of warfare, our opponents’ illegitimate tactics do not justify violations on our part.
If we are to use the strict “NGO interpretation” of the rules of war (which is the interpretation Bradley Burston and I were using in our exchange of letters), it’s possible that some Israeli actions against Palestinian or Lebanese targets might have been criminal; as mentioned above, it all hinges on what information and alternatives were available to commanders, and how they made the decisions they made. However, it is also important to note that in the real world, nobody has ever been prosecuted for war crimes based on this interpretation of the law. An extensive Wikipedia list of prominent prosecuted and un-prosecuted war crimes does not include a single case in which civilians were killed as a consequence of a botched – or even reckless – attack on a military target. Every one of the war crimes listed was a deliberate attack on civilians, with no military justification.
I try (albeit not hard enough) to be a person of principle, and I aspire to live in a nation governed by principle. I would be much happier with my government if I felt that its every decision took into account the rights of noncombatant civilians as well as Israel’s military and political needs – although I do feel that our record could be a lot worse than it is, considering the dangers we face. Like Bradley Burston, I feel very uncomfortable with incidents like the Beit Hanoun tragedy: even if the killing of innocent civilians was not intentional, it was predictable given the number of shells we were firing in close proximity to densely populated areas. But I still think Burston is wrong to classify Beit Hanoun as a war crime.
Words are powerful things. If Israel is accused of committing war crimes – by Israelis, no less! – we are being compared to the Nazis, Cambodia’s Pol Pot, and the rest of the monsters. To be classified as part of this group is to lose all legitimacy among right-thinking people worldwide; and Israel is desperately in need of all the legitimacy it can get. But while the Katyushas and Kassams fit comfortably into the list of acknowledged war crimes, Israel’s actions in Lebanon and Gaza do not.
The kind of even-handedness practiced by Human Rights Watch and Bradley Burston is certainly better than accusations made against Israel alone; but even this “fairness” seems terribly unfair considering that our adversaries have committed war crimes according to all legitimate definitions of the term, while Israel has committed war crimes – if at all – only according to an interpretation of the rules of war that exists only in the minds of human-rights NGO’s, and has never seen the inside of a court of law.
(This post can also be found at the Guns and Butter Blog.)