The other day Kenneth Roth, the executive director of Human Rights Watch, appeared on the “Huckabee Show” on FOX News to make the case that Israel is committing war crimes in Gaza. Huckabee is a strong supporter of Israel, instinctively on the right side of the issue, but could do little but respond with exasperation to Roth’s technical sounding claims of Israeli law-breaking. While the pro-Huckabee studio audience didn’t buy it, Roth’s calm, prim, and professorial accusations against Israel might easily sway a neutral observer who didn’t actually know the law. His weak but carefully articulated claims help establish the pseudo-legal sounding framework which the left-wing media, most of Europe and the Obama administration use to pressure and condemn Israel. It works to encourage Hamas’ own continuing war crimes, rather than promote adherence to the law.
None of Roth’s accusations are based on a correct reading and interpretation of the laws of war, but his claims need to be debunked precisely, not just ignored or belittled because one supports Israel. Roth and his cohorts have very real influence that is based in part on an appeal to cool legal rationality. The problem is that this coolly rational legal framework, at least when it comes to Israel, is a chimera.
Roth’s brief against Israel (and by extension that of the Left in general – to include Obama) is that Israel’s actions in Gaza do not comply with the laws of war, to wit:
- Israel targets civilian structures
- Israel is strictly liable for civilian casualties
- Israel violates the general rule of proportional combat
- Israel disproportionately kills civilians
- Palestinian civilians who voluntarily put themselves in harm’s way are not “human shields”
- Precision military strikes are required when engaging any target in an urban area
- Israel does not prosecute soldiers for war crimes
None of these claims are either factually true or legally legitimate, but when presented calmly and academically, without direct rebuttal, are convincing for many people, and create fodder for op-ed writers and talking heads to muddy the waters or drum up anti-Israel sentiment. What is the actual case with regard to these claims?
Israel targets civilian structures: A civilian structure loses its protected status when it is used for military purposes. A home that serves as a Hamas command post or hides a tunnel entrance is by definition not a civilian structure any longer. Israel targets such buildings, but does not target structures that are not used for military purposes. A church or a mosque that houses a sniper loses its protected status under the laws of war.
Israel is strictly liable for civilian casualties: Strict liability is a very limited legal concept that has no little or no place in the laws of war.
Overwhelmingly in criminal jurisprudence, whether civil or military, the key question is intent. However, in limited situations, strict liability applies, e.g., injuring somebody while driving drunk being an example. It is a way to apply criminal liability to reckless but perhaps otherwise innocent conduct. Within the laws of …read more