January 22, 2019

Israel should probe accusations of war crimes

The recent charge by three human rights organizations that Israel committed war crimes in Lebanon seems at first like just another reflexive anti-Israel (or, at worst,
anti-Semitic) condemnation.
The truth, though, is more complex. Those who are making the accusations appear to be acting with good motives. The real problem is the inherently vague nature of the law under which they have made their accusations.

The accusations are serious: They claim that Israel’s soldiers committed acts that merit criminal prosecution and jail time. Louise Arbour, the U.N. high commissioner for human rights, stated that she believed that Israeli bombings that killed civilians constituted war crimes for which Israeli military personnel could be held individually, criminally liable. Human Rights Watch concluded that Israel’s “indiscriminate attacks against civilians” constitute war crimes. Most recently, an Amnesty International report opined that Israel committed war crimes such as “attacking civilian objects and carrying out indiscriminate or disproportionate attacks.”
There is no reason to think that these accusations are motivated by anti-Semitism. These human rights organizations are devoted to protecting the rights of civilians — a laudable goal — and can be expected aggressively to take the side of civilians in any military conflict, whether the conflict involves Israel or anyone else. Nor did the United Nations or Human Rights Watch refrain from criticizing Hezbollah in the most severe terms. In the words of Human Rights Watch, Hezbollah’s missile attacks intended to kill Israeli civilians are “without doubt a war crime.” (Amnesty International’s report criticizing Israel, by contrast, makes only the cryptic statement that Hezbollah’s actions are “being addressed elsewhere.”)

The basic problem with the charges, however, is the vague and subjective nature of the law that Israel stands accused of violating. Contrary to popular imagination, the term “war crime” covers not only atrocities like genocide and other clear-cut misdeeds. Instead, the term also applies to nuanced and highly debatable issues concerning whether a particular military campaign was properly conducted.
The accusations against Israel involve the more subjective provisions of international law relating to civilians in wartime. The 1949 provisions of the Geneva Convention require that armies “shall at all times distinguish between the civilian population and combatants and accordingly shall direct their operations only against military objectives.” Much more vaguely — and importantly for present purposes — the treaty also prohibits attacks against a military target “which may be expected to cause incidental loss of civilian life … which would be excessive in relation to the concrete and direct military advantage anticipated.”

This sliding-scale provision, forbidding not all civilian casualties but only excessive losses in light of the military objective, is at the heart of the current round of accusations. As Human Rights Watch senior emergencies researcher Peter N. Boukaert has explained, his organization’s charges “don’t accuse the Israeli army of deliberately trying to kill civilians.” Rather, they claim that Israel did not take enough care to distinguish between military and civilian targets, and that the damage Israel caused was excessive in connection with the military advantage it sought — standards that are far less easy to quantify. Under the same analysis, it is quite clear that the United States’ World War II firebombing of Dresden and dropping of atomic bombs on Japan would have qualified as war crimes, too.
So subjective is the relevant standard that a war crimes accusation is almost inevitable when an army fights a militia like Hezbollah, entrenched deep within the civilian population. Strikes against Hezbollah will tragically and inevitably lead to civilian deaths.

There will then be grounds for debating whether or not the civilian damage caused by any particular strike was “excessive” or specifically enough tied to a particular military objective. The laws in the Geneva Convention were designed with much clearer army-to-army conflicts in mind, not the case of a guerilla army operating and hiding among civilians.
Because of the issue’s inherent subjectivity, a critical question becomes: Who decides? The idea of letting the Zionism-is-racism gang at the United Nations adjudicate the propriety of Israel’s military operations would make anyone vaguely sympathetic to Israel shudder. The newly functioning International Criminal Court in The Hague, which both the United States and Israel find controversial, reflects the United Nations’ makeup; neither Israel nor Lebanon are members of the court, which therefore lacks jurisdiction. And humanitarian groups like Human Rights Watch are “biased” in the sense that their agenda is the broadest possible application of these legal rules.
As a practical matter, there is unlikely to be any real-world prosecution of anyone from Israel (or Hezbollah) arising out of the Lebanon War.
In truth, Israel itself should decide. It should analyze the facts to make sure that it is complying with the rules governing the protections of civilians.
Rather than dismiss these charges out of hand, Israel and those who care about it should look at them carefully for the sake of determining the right course of conduct in future battles. For example, Israel should make sure that the losses to Lebanese civilians were truly incidental to military objectives and as limited as possible, rather than (as Amnesty International claims) a means of punishing Lebanese civilians for supporting Hezbollah, conduct that would be unlawful.
The accusations are an occasion for careful self-reflection about how Israel can fight for its existence while minimizing civilian casualties as required by international law.

Joseph M. Lipner is a Los Angeles attorney.