In New York Times v. United States, the famous Pentagon Papers case, Justice Potter Stewart noted that “when everything is classified, then nothing is classified”. His point was important: the significance and credibility of classification is eroded by over-classification.
The same holds for accusations of war crimes. Observers from all over the world seem quick to condemn almost every military action taken by Israel as a war crime. Many accuse Israel of genocide. These accusations undermine the meaning of what they allege. It might be appealing to toss such accusations about but, as Justice Stewart warned, the significance of the concept of war crimes and credibility of the law is eroded by such overbroad and often invalid accusations.
One need only consider the genocide accusation. Palestinians make up 20 per cent of the Israeli population with the same civil rights and legal privileges as any other Israeli citizen. How this aligns with the accusation that Israel is engaged in a systemic effort to destroy this ethnic group is perplexing. Nor do casualties in Gaza support even suspicion of genocide.
Accepting the civilian casualty figures provided by Hamas, 11,000 deaths out of a population of nearly two million, that has actually increased over the past 20 years from 1.6million, does not come close to making the case. This is especially true considering Israeli military capabilities, which could easily inflict far more casualties if that was the intent.
The war crimes accusations are equally ovely broad. First, cutting off resources to Gaza is routinely and erroneously labelled a war crime of collective punishment (there is no such war crime within the jurisdiction of the International Criminal Court). Second, civilian casualties resulting from Israeli attacks is alleged to prove widespread murder of innocents. Combat operations in Gaza are producing widespread civilian suffering. But the leap from this to the war crimes condemnation is premature at best, and invalid at worst.
Cutting off resources to an enemy is not a war crime; doing so for the purpose of starving the civilian population is. Even overlooking that there is no evidence of civilian starvation, the accusations fail to account for the military necessity of depriving Hamas of resources. Furthermore, Israel has made efforts to facilitate the provision of humanitarian assistance to civilians. Ignoring these efforts, and the legally valid measures to ensure that the resources will not be diverted to use by Hamas, in order to advance a war crimes narrative, exposes the fallacy of the accusation.
More importantly, collective impact and collective punishment are not the same. All wars have a detrimental collective impact on civilians. However, it is the intentional infliction of harm on civilians, or the infliction of harm that, while not intentional, is excessive when compared to the anticipated military advantage, that the law condemns. When a detrimental impact is the result of measures justified by military necessity — such as to deprive enemy forces of important resources such as fuel — that intent is purely speculative.
Characterising all civilian harm from attacks against enemy military objectives as war crimes is not credible. The law of war does not prohibit such casualties, even when they are expected from an attack. What is prohibited is conducting an attack with the intent to kill or injure civilians, or attacking an enemy target after determining the anticipated collateral consequence to civilians and/or civilian property will be excessive compared to the anticipated military advantage.
It is almost always invalid to condemn an attack on an enemy target as a war crime based only on the attack effects. This is especially true where the enemy itself violates the law by using civilians to shield military personnel or assets and deliberately locates military assets in or near protected places such as hospitals, schools or refugee centres.
Ironically, in many cases it is this tactic that amounts to the war crime of human shielding. In such a context — which defines Hamas’s conduct in Gaza — a credible assessment of possible violation requires information related to the nature of the target, the military value of the target, the quality of the intelligence confirming the target, the implementation of civilian risk-mitigation precautions, and the anticipated harm to civilians when the attack decision was made. Hamas has provided undeniable evidence of war crimes committed by its own personnel. When there is reasonable basis to suspect misconduct, Israel is obligated to investigate and, where appropriate, prosecute those responsible. But when every measure to weaken Hamas is a war crime, when nothing Israel does is considered consistent with its rights and obligations under international law, the very notion of war crime loses meaning.
Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law, Houston