Unfortunately, we frequently hear Israel accused of war crimes. On the news, in op-eds, and for that matter in discussions at the gym or supermarket. And there’s certainly no denying the death and destruction that the Israeli military has inflicted on Gaza. When people accuse Israel of war crimes, how can we respond?
For example, let’s take a look at one of the Israeli strikes that has gotten the most attention, the destruction of the Gaza City building housing the offices of the Associated Press on May 15th. In order to discuss whether this might be a war crime, let’s first remember what war crimes are.
The key principle is that the Geneva Conventions have made it a crime to target civilians in war. A related rule is proportionality. This recognizes that civilians and the military may be in proximity. If striking a legitimate military target causes civilian harm, the harm to civilians must be proportionate to the value of the military strike.
Were Civilians the Target?
If the building Israel bombed on May 15th in fact housed only various media outlets and civilian apartments, and knowing that Israel still targeted it deliberately, that would be targeting civilians and in fact be a war crime. But Israel says Hamas was in the building, using it as a base to plot its attacks.
That’s certainly plausible. It’s well documented how Hamas intimidates journalists, and likely if Hamas was in the building the AP would never report it.
Of course, it’s also possible the Israeli government is lying. Maybe fed up with what they perceived as the negative, anti-Israel reporting of the AP and Al-Jazeera Israel’s military wanted to shut them up or get revenge. Realize, though, that this is a serious allegation that shouldn’t be made without proof.
There very well may be (and in fact should be) an investigation, and if it is determined that Israel deliberately targeted news organizations and their story about Hamas in the building was lies those responsible should be held to account. But that will have to be based on evidence. Testimony by whistle blowing Israeli officials, for example. Or maps and documents used by Israeli commanders that clearly show where they believed Hamas to be and not to be, with that building clearly labelled press or civilian.
There’s no way for someone sitting at home watching the news to know the truth. For that matter, the activists and experts being interviewed on television can’t possibly have all the facts yet either. So all we’re left with is unsubstantiated accusations. The only responsible thing to say right now is that we have to wait and hope that a future inquiry will make clear exactly what the Israeli military intended.
Was it proportionate?
The second issue is proportionality. Even if the building was used by Hamas, as Israel claims, everyone agrees there were media offices and apartments as well. Israel says that since Hamas is attacking offices and apartments in Israel with its missiles, destroying a building with civilian offices and apartments in order to strike at Hamas is proportionate and therefore a legal use of force under the Geneva Conventions.
Proportionality is inherently subjective. There is no agreed upon yardstick for what is proportionate to what, and inevitably this will look different to people with different outlooks and perspectives. What may seem disproportionate and horrendous to someone watching the news in a safe, secure office building in New York may seem like hardly enough force to someone trapped in a bomb shelter in Sderot. A family fleeing through the streets of Gaza will likely have a wholly different perspective altogether.
We should recognize that it’s certainly possible to argue that the attack on this building was disproportionate. The building was in a residential area, so its destruction posed a huge danger to civilians nearby. Even people who weren’t killed or injured would be traumatized by watching a piece of their neighborhood be destroyed. Many families lost all their possessions and their homes.
On the other hand, Israel points out that it warned all of the building occupants before the attack to prevent a loss of life. The building’s owner was even on the phone with an Israeli intelligence officer before the attack, asking for more time. It seems like miraculously, due to these warnings, no one was killed. And of course it’s impossible to make an informed evaluation of proportionality without knowing the nature of the military target, which is still in dispute.
We shouldn’t claim it’s unreasonable or outrageous for someone to take the view that this attack may have been a disproportionate use of force. People are entitled to their opinions. But it’s just that- an opinion. There’s a huge chasm between having that opinion and declaring that this bombing was in fact a war crime. For someone to conclude that the bombing was a war crime requires the chutzpah to insist that their view of what’s proportionate is right and that other perspectives, including the Israeli one, are somehow less legitimate or wrong.
In practice, it’s hard to imagine a judicial body such as the International Criminal Court finding this to be a war crime based on the principle of proportionality. Since proportionality is so subjective, only flagrantly obvious cases, such as bombing an entire city to hit one military target concealed within it, would seem eligible for prosecution.
Each Hamas missile attack is a war crime
A final thing to bear in mind concerning war crimes in the current conflict: Israel’s conduct can certainly be questioned, but doing so involves a painstaking investigation of facts in each instance. Where was Hamas launching rockets? Where was Hamas storing its supplies, manufacturing its weapons, and planning its attacks? What did Israel know? What were Israel’s intentions in each attack? What warning was given?
With regard to Hamas, however, the case is open and shut. Each of its rockets is aimed at Israel’s civilians, in direct contradiction to the rules of war. No investigation in needed- each Hamas rocket launch is a war crime, plain and simple. This ought to be the starting point for any war crimes prosecutions stemming from the current conflict.