Commentary Magazine


The War Crimes Canard

It is a testament to the screwiness of the “international community” and of international “human rights organizations” that we hear nothing about Hamas’s war crimes even though there is little doubt that Hamas is guilty of violating the most essential of all laws of war — the one that holds that there must be a clear distinction between combatants and civilians. No one denies that Hamas hides among civilians and tells its fighters to don civilian clothes. Yet instead of talk about war-crime trials for Hamas we hear instead that Amnesty International and its ilk are trying to put Israel on trial.

The odds of actual charges being filed in an actual court of law and leading to actual convictions are almost nonexistent. Israel is not even a signatory to the convention which created the International Criminal Court; therefore, the ICC has no jurisdiction over Israel. Various activists know this, so they are not even bothering to marshal real evidence. Instead they are convicting Israel in the court of international public opinion, with the news media credulously serving as judge and jury before a full accounting of the evidence has been heard.

What “war crimes” is Israel alleged to have committed? One that we hear a great deal about is the supposed lack of proportionality in its war-making. But there is no requirement in international law that one nation’s casualties be equivalent to those of its enemies. If there were, the U.S. would surely have been guilty of war crimes in World War II when its armed forces killed hundreds of thousands of Japanese following the Japanese raid on Pearl Harbor, which killed “only” 2,413 Americans.

There is a requirement in international law that a nation do everything possible to minimize civilian casualties and that the risks of collateral damage be weighed against the importance of hitting any particular target. If the military gains are far outweighed by the risks of civilian casualties then a law-abiding military is supposed to forgo hitting that particular target. Israel does as good a job as any armed force in the world of adhering to this standard. Most of its targeting decisions are reviewed by military lawyers, and its military has made heroic efforts to minimize damage by warning civilians in Gaza in advance of bombing raids.

Another bogus charge relates to Israel’s use of white phosphorus, an incendiary material that is used in small amounts in smoke shells designed to shield ground operations.  If you are a casual consumer of news articles like this one you would think that by deploying white phosphorous (Willy Pete in U.S. military slang), Israel has committed a war crime. Actually it is a perfectly legal weapon. Here is what, a nonpartisan website, has to say on the subject:

White phosphorus is not banned by any treaty to which the United States is a signatory. … The use of white phosphorus or fuel air explosives are not prohibited or restricted by Protocol III of the Certain Conventional Weapons Convention (CCWC), the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, which regulates the use of “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons . . .”

The only legal restriction on the use of white phosphorous comes from the 1980 Geneva Protocol III Prohibitions or Restrictions on the Use of Incendiary Weapons. Neither Israel nor the U.S. are parties to the convention, but their armed forces nevertheless observe its terms under what is known as “customary international law.”

As suggested above, Protocol III allows white phosphorous to be used to create smoke. It doesn’t allow it to be used directly against a civilian population. It goes on to say that: “It is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”

The Israeli government is now investigating whether any of its military units may have used white phosphorous too close to a “concentration of civilians.” That’s an amorphous, hard-to-define standard, and it’s possible that such a violation occurred because Hamas hides among civilians. But if such a violation did occur, it was clearly contrary to the guidance issued to Israeli troops and it will be dealt with, if necessary, by the Israeli military or its courts. I am still waiting for Hamas to prosecute its members who routinely violate international law not in violation of their instructions but in accord with them.

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