Israeli officials, facing criticism over the high civilian death toll in their military campaign against Hamas in Gaza, have invoked historical precedents to justify their actions. They have referenced past Western military actions in urban areas, ranging from World War II to the post-9/11 wars against terrorism. Israeli officials argue that it is impossible to defeat Hamas without causing harm to innocent people, and they believe Americans and their allies should understand this reality [Source: The New York Times]. We strongly differ.
Q: Balancing military advantage against injury to noncombatants. in warfare
A: In warfare, the principles of distinction and proportionality play a significant role in balancing military advantage against injury to noncombatants.
- Distinction: This principle requires parties in an armed conflict to differentiate between combatants and noncombatants. It is unlawful to target noncombatants, which includes civilians, wounded soldiers, and prisoners of war.
- Proportionality: This principle forbids attacks that may cause incidental loss of civilian life or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated.
However, these principles often come into conflict during warfare. For instance, a high-value target may be located in a densely populated area. Striking such a target might bring significant military advantage but at the cost of civilian casualties.
Assessing military advantage involves considering the value of the target, its contribution to enemy capabilities, and its significance in the broader context of the war. At the same time, minimizing harm to noncombatants involves not only avoiding targeting them directly but also taking all feasible precautions to protect them from the effects of attacks on military targets.
This balance is difficult to maintain and can lead to controversial actions and decisions, especially when the value of the military target is high. It’s a complex issue with no easy answers and is often a subject of intense debate in the context of international humanitarian law.
Source: International Committee of the Red Cross
https://www.icrc.org/en/document/customary-ihl-database
In 2016, the department’s legal office circulated a memo that said U.S. officials could be found guilty of war crimes for selling bombs to Saudi Arabia that were being used in its war in Yemen, in which airstrikes by a Saudi-led coalition were resulting in mass civilian casualties.
“The Israeli strikes we’ve seen so far should be raising serious questions for people at the State Department about how U.S. weapons are being used,” said Brian Finucane, a recent State Department lawyer who is a senior adviser at the International Crisis Group.
The Israeli defense ministry said it had dropped at least 10,000 munitions as of Nov. 1, in three and a half weeks of war. By contrast, the U.S. military dropped about 2,000 to 3,000 munitions per month during the most intense combat operations against the Islamic State in Iraq and Syria from 2015 to 2017, according to a report by the RAND Corporation. Only in one month, in the battle for Raqqa in August 2017, did that number hit 5,000.
“The pace of bombing in Gaza is off the charts,” Mr. Finucane said. “The U.S. engaged in heavy bombing of Raqqa and Mosul. It was heavily regulated, but even then, there were lots of civilian casualties.”
https://www.nytimes.com/2023/11/07/us/politics/israel-gaza-war-death-toll-civilians.html
When it comes to the responsibility of nations selling weapons to another nation involved in war crimes that result in civilian casualties, it is a complex and debated topic. The extent of responsibility can vary depending on factors such as the knowledge of the buyer’s intentions, the existence of arms control agreements, and the geopolitical context.
Some key points to consider:
- Arms export regulations: Many countries have regulations in place governing the sale and transfer of weapons. These regulations often include provisions to ensure that weapons are not used to commit human rights abuses or war crimes. However, enforcement and adherence to these regulations can vary.
- Knowledge and intent: If a nation selling weapons has knowledge or strong indications that the buyer intends to use them to commit war crimes or harm civilians, they could be seen as complicit in those actions. In such cases, the responsibility of the seller may be called into question.
- Arms control agreements: International agreements, such as the Arms Trade Treaty, aim to regulate and control the global arms trade to prevent illicit transfers and reduce the risk of human rights abuses. However, not all countries are party to such agreements, and compliance can be inconsistent.
- Geopolitical considerations: The geopolitical dynamics and strategic interests of nations can influence their decisions regarding arms sales. Sometimes, political alliances or economic considerations may take precedence over concerns about potential misuse of the weapons sold.
Determining legal and moral responsibility can be challenging and requires careful examination of specific circumstances and international law.
Sources:
- The New York Times: Hamas Hostages Under Scrutiny Over Gaza, Israel Points to Civilian Toll of U.S. Wars
- Arms Trade Treaty
Mr. Paul, the former State Department official, was a longtime employee in the agency’s political-military bureau, which handles weapons sales, until last month, when he resigned because of what he said was immoral U.S. support and lethal aid for Israel’s bombings in Gaza. Mr. Paul said there has been no real discussion within the administration about the use of American weapons in the strikes killing civilians and no way to influence policy on that from the inside.
He added that “in practice and in legal interpretation, there has not been a legal standard established for what constitutes misuse of U.S. weapons.”
While Mr. Blinken has said Israel should do all it can to minimize civilian casualties, the department has so far refrained from looking into any possible war crimes by Israel.
On Oct. 20, Mr. Blinken said “there will be plenty of time to make assessments about how these operations were conducted.” Last Wednesday, after the mass deaths in Jabaliya, Matthew Miller, the department spokesman, avoided answering questions on whether a process was underway, saying only, “It is not an assessment that we are making now.”
The State Department declined requests for an interview on this subject.
https://www.nytimes.com/2023/11/07/us/politics/israel-gaza-war-death-toll-civilians.html
Brief Contrast of the Palestinian and the Ukrainian Situations
The Iron Dome system provided to Israel is a defensive mechanism designed to intercept incoming rocket attacks. It’s justifiably meant to protect Israeli civilians from rocket fire, primarily from Gaza. However, offensive weapons provided to Israel have been used in operations against Hamas, which have resulted in excessive Palestinian civilian casualties, mostly women and children. The high civilian death toll in Gaza is unacceptable and disproportionate to the military advantage gained in such operations.
Both Ukraine and Palestine face military actions from more powerful neighbors—Russia and Israel, respectively. In Ukraine, the conflict with Russia has also resulted in numerous civilian casualties, mostly Ukrainians, but the nature of the conflict—conventional warfare between two state armies—differs from the asymmetric warfare in Gaza.
The threats faced by Ukraine and Palestine are both severe but differ in nature. Ukraine faces the threat of losing its sovereignty due to Russian aggression. In contrast, the Palestinian situation is characterized as facing threats related to their displacement and its right of self-determination, which would amount to a form of ethnic cleansing.
Putting aside the disputed occupation of Palestine by Israel, the selling of weapons for self-defense to Israel would be morally justified. However, selling arms to Israel for ethnic cleansing purposes — the implicit purpose of Netanyahu in Gaza — would amount to being complicit to war crimes.
- Self-Defense: The right to self-defense is recognized under international law, including Article 51 of the United Nations Charter. Providing weapons to Israel or Ukraine for their self-defense against armed attacks aligns with this principle.
- Occupation: The situations in Ukraine and Palestine are both characterized by occupation, but they are quite different in nature. Russia’s annexation of Crimea from Ukraine has been widely condemned as a violation of international law. The Israeli-Palestinian conflict, meanwhile, involves disputed territories and issues of statehood that have persisted for decades.
- Ethnic Cleansing: Accusations of ethnic cleansing, such as those leveled against the policies of Israeli Prime Minister Netanyahu in Gaza, are extremely serious. Ethnic cleansing is recognized as a crime against humanity under international law. If a state knowingly provides weapons used for such purposes, it could potentially be seen as complicit in those crimes.
- Complicity in War Crimes: Under international law, particularly the Arms Trade Treaty, states are obliged not to transfer arms where there is a clear risk those arms might be used to commit serious violations of international humanitarian law. If weapons sold to any country are used to commit war crimes, the selling country could face accusations of complicity.
A more stringent control over weapon sales to Israel and greater emphasis on diplomatic solutions to the conflict is warranted. An active role by the international community, including the United Nations, the European Union, and influential nations, can help facilitate dialogue and negotiations, apply pressure where necessary, and provide support for peace-building initiatives. A focus on human rights is crucial. Any approach should prioritize the protection of civilians, the right to self-determination, and other fundamental human rights as outlined in international law.
Sources:
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