Bryan
------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------
Dear Bryan -
Your note (at http://mailman.lbo-talk.org/pipermail/lbo-talk/Week-of-Mon-20090907/012531.html ) about the B'Tselem report and my response to it came up on my automated Google search; you raised a question about my claims, and I feel your question - which may, of course, have been rhetorical - deserves a response.
You asked: "And am I wrong or is he saying that B'Tselem is mistaken because every military age Palestinian that pokes their head out or is in any sort of public place can be considered a legitimate and justified target? And therefore even if it can be determined that many of these men who were killed were not directly combatants, they still can not be considered illegitimate *[I think you meant "legitimate" here] *targets? So, B'Tselem, even if you are right you are wrong...?"
The answer is that not every military-age male Palestinian is a legitimate military target. Someone who is clearly not a danger to troops in the field cannot be legitimately targeted simply because of his age, gender, and ethnicity. However, there is a problem faced by Israeli forces in Gaza, as well as other conventional armed forces engaged in combat in similar environments against non-uniformed forces: the circumstances of engagement mean that it can be very, very difficult to differentiate between someone who is genuinely not a threat and someone who looks like a civilian, acts like a civilian, but is going to pull a weapon out the minute soldiers turn their backs. (U.S. forces faced a lot of this kind of problem as far back as Vietnam.) The word "clearly", then, is a real problem - in the heat of combat, things are very seldom as clear as one would like.
(Of course, as I pointed out in Part 2 of my response, a fair number of combat-age men would also be killed accidentally (e.g. by air strikes or shelling), along with women and children - and except for the odd coincidence, virtually all of these are noncombatants.)
Basically, the problem here is that the determination of whether a war crime has occurred depends largely on what was going on in the mind of whoever ordered an attack or pulled a trigger. "Wholesale" war crimes can be detected statistically, if decent casualty data is available (which it often isn't; the Israeli-Palestinian conflict is easier to analyze than most, since it is relatively small in scale and receives a tremendous amount of journalistic coverage); but "retail" war crimes are normally detectable only to the extent that evidence can be produced showing that a particular person attacked a particular civilian target either knowingly or negligently, or knowingly or negligently used inappropriately destructive weapons to attack a valid military target. The mere existence of civilian casualties does not imply that an attacking force has done anything improper: if the soldier or commander involved made a good-faith effort to use appropriate weapons to attack legitimate targets, s/he is innocent of war crimes even innocent civilians were killed.
While it would obviously be desirable to kill only genuine combatants, the fact is that in urban guerrilla combat (no matter whose army is involved) a large number of noncombatants are always killed - and these killings are not prosecuted as war crimes unless there is strong evidence of malfeasance in a particular case. There is no obligation under the laws of war to let a potential enemy fire the first shot; and once enemy combatants make a habit of disguising themselves as noncombatant civilians, soldiers are within their rights to alter their rules of engagement accordingly.
As such, I think B'Tselem, Human Rights Watch, and similar organizations are indeed wrong in how they interpret the fatality statistics of Operation Cast Lead; unless they can show (A) deliberate or negligent malfeasance on the part of the IDF or individual soldiers, or (B) a significantly worse combatant-to-noncombatant kill ratio for the IDF compared to other armies engaged in combat under comparable circumstances, all they have really proved is that modern warfare is a nasty business - but we knew that already.
Best regards,
-Don Radlauer ------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------
Hi Don,
Thanks for the answer. It wasn't completely rhetorical, I wanted to hear what others thought, but I am also happy that you answered.
Don Radlauer wrote:
> You asked: "And therefore even if it can be determined that many of
> these men who were killed were not directly combatants, they still can
> not be considered illegitimate *[I think you meant "legitimate" here]
> *targets? So, B'Tselem, even if you are right you are wrong...?"
No, I did mean illegitimate. I was asking if that is what YOU meant. So
to rephrase my badly worded double negative in the positive: "And
following from your logic, even if it can be determined that many of
these men who were killed were not directly combatants...they *still can
be considered legitimat*e targets?"
I think you would still answer this in the affirmative.
There seems to be two separate issues here: 1. How many civilians were killed? 2. Can this be deemed a war crime or is it justifiable in the specific theater of urban warfare with an irregular armed force.
I didn't really read your whole research on the subject (I will read your whole critique of the PCHR study), but just the short version and your reply from Ynet, but from what I gather, you were arguing both that not as many civilians were killed as PCHR (and B'Tselem) says (which is definitely Gerald Steinberg of NGO Watch take on this), AND that even those civilians who were killed can be considered legitimate targets due to the urban theater of warfare and the fact that the irregular armed forces Israel was fighting often dress in civilian clothing or as police, etc.
First, while I am no expert on international law, I don't think that indiscriminate means "random," but rather not discriminating sufficiently as to whether a target is combatant or non-combatant. So, obviously the skew would tend towards combat age men, regardless of whether it is due to indiscriminate or discriminating fire, because if you just target combat age men any time you see them without verifying sufficiently, the fire is indiscriminate EVEN if you specifically targeted the individual.
Isn't it true that in the conduct of military operations, parties to a conflict must take constant care to spare the civilian population and civilian objects from the effects of hostilities. So, aren't parties to a conflict therefore required to take precautionary measures to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.
These precautions include:
Doing "everything feasible to verify" that the objects to be attacked are military objectives and not civilians or civilian objects. If there are doubts about whether a potential target is of a civilian or military character, the assessment must be particularly scrupulous so as to dispel, to the maximum extent possible, any doubts about the civilian character of the person or object. The warring parties must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective. (ICRC, /Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949/ art. 57(2).
* Quoting directly from article 57:
Chapter IV. Precautionary measures
Art 57. Precautions in attack
1. In the conduct of military operations, constant care shall be
taken to spare the civilian population, civilians and civilian
objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be
attacked are neither civilians nor civilian objects and are not
subject to special protection but are military objectives within
the meaning of paragraph 2 of Article 52 and that it is not
prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and
methods of attack with a view to avoiding, and in any event to
minimizing, incidental loss or civilian life, injury to civilians
and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct
military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes
apparent that the objective is not a military one or is subject to
special protection or that the attack may be expected to cause
incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military
advantage anticipated;
(c) effective advance warning shall be given of attacks which may
affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives
for obtaining a similar military advantage, the objective to be
selected shall be that the attack on which may be expected to
cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air,
each Party to the conflict shall, in conformity with its rights
and duties under the rules of international law applicable in
armed conflict, take all reasonable precautions to avoid losses of
civilian lives and damage to civilian objects.
5. No provision of this article may be construed as authorizing
any attacks against the civilian population, civilians or civilian
objects.
I guess the issue at contention is what these "reasonable precautions" are. And I know that there is a disagreement in the field of international law as to how to define the limits of precautionary measures. Israel says "we dropped leaflets" so after that, it is an open fire zone?
Anyway, I am not any expert on International and Human rights law... I will send what you have written to my good friend who is a international and human rights lawyer working presently at the ICJ to hear what he has to say.
Second, in most situations under attack, women, children, and elderly are going to be kept as far from danger as possible, so those who will go out when needed will tend to be young men, so the "skewed" fatalities would seem reasonable, whether or not they are civilians or not. So this data should not be used to attempt to show that it wasn't indiscriminate or that they were likely combatants, because the data pool itself would skew towards this result, and may even suggest that the number of woman and child deaths even more significant.
Sincerely, thanks for the reply,
Bryan