Israel air strike 'hits charitable association for disabled' in Gaza

[The Magistrate]

96. 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.