The New York Times reported Monday on a U.S. soldier charged with killing Afghan civilians for fun. Yet much of the report was devoted to explaining why civilian killings by soldiers usually don’t result in indictments — like a 2008 case in which Marines allegedly fired indiscriminately at an Afghan road, killing 19 people and wounding 50. The case was closed because “the shootings began after a suicide bomber attacked the unit’s convoy,” and “the Marines said they had taken hostile gunfire after the explosion and had fired to defend themselves from perceived threats.” The Times explained:
It can be difficult to win a conviction, specialists in military law said, when defendants can make a plausible claim that they believed, in the confusion of the “fog of war,” that their lives were in danger and they needed to defend themselves.
“You often see cases of kids who just make dumb decisions,” said Gary Solis, who teaches the laws of war at Georgetown University. “But killings in the heat of the moment, they don’t usually try those guys. The guys you try are the ones who have an opportunity to consider what they are doing.”
Eugene R. Fidell, who teaches military law at Yale, added that it’s often hard to gather evidence in conflict zones.
In many cases, he said, months have passed by the time an accusation surfaces, and so units have rotated back from the tour of duty, records are poor, and it is difficult to find witnesses.
Moreover, in the Muslim world investigators are deeply reluctant, for cultural reasons, to exhume bodies and perform autopsies.
Astoundingly, even the lone human-rights advocate quoted agreed. “The large majority of civilian harm in both Iraq and Afghanistan takes place during legitimate military operations,” said Sarah Holewinksi, executive director of the Campaign for Innocent Victims in Conflict.
Clearly, all the above considerations also apply to Israel’s military operations in Lebanon and Gaza. Civilian deaths occurred in the heat of combat, when soldiers could plausibly have thought themselves endangered. Few witnesses will talk to Israeli investigators, yet testimony given to nongovernmental organizations is problematic as courtroom evidence, because attorneys and judges cannot question the witnesses themselves or form an impression of their credibility. And most victims are Muslims, who have religious objections to autopsies.
Yet when it comes to Israel, these factors are somehow dismissed as unimportant. That same day, the Times reported on an Israeli court’s conviction of two soldiers for crimes committed during last year’s Gaza war. Altogether, it noted, 48 cases have been opened. A third are “still in progress,” a few produced convictions, and the rest were closed, for the reasons cited above.
“But human rights groups say that the military’s criminal proceedings are insufficient” and that Israeli troops committed “atrocities that require outside investigation.”
The principle that the law applies equally to all is a cornerstone of modern Western civilization. Yet too many Westerners seem to reserve the protections granted by the laws of war for their own soldiers while denying them to Israel.
By so doing, they don’t just undermine Israel. They undermine their own civilization.