Marc D. Stern [Acting Co-Executive Director/General Counsel, American Jewish Congress]: "Amnesty International reads the law of war as if it was a law banning war. In evaluating Amnesty's criticisms of Israel's actions in Gaza, one needs to take into account the manifold ways it distorts a body of law which actually permits, while regulating, war.
Amnesty perversely reads that body of law in ways that unduly handcuff nations with legitimate reasons for military action. Indeed, in a recent letter to Secretary of State Condoleezza Rice about the Gaza conflict, Amnesty imposes a new – and entirely unfounded – restriction on the use of military force: that it be "strictly necessary." Presumably Israel's assault on Gaza is not "strictly necessary." Israel could live with ongoing rocket attacks or simply accept whatever terms Hamas dictates as a condition for stopping its rocket fire. Fortunately for the rest of us, peace at any price or yielding to blackmail by rocket fire is not required by international law.
These distortions are plainly evident in a series of statements and letters Amnesty has written since Israel began its invasion of Gaza. Although these statements rely repeatedly on the principle of distinction – requiring combatants to do their best to distinguish between civilians and combatants – Amnesty manages to not once mention Hamas' plain duty under that principle to avoid placing its military assets (i.e., rockets and rocket launchers) amongst civilians in civilian neighborhoods. If one wants to protect civilians, that is the place to start.
There is no question that such a duty exists and that, as demonstrated by a report [PDF file] by Israel's Intelligence and Terrorism Information Center, Hamas pays it no mind. Amnesty necessarily also elides the point that Hamas' violation does not immunize dual use military sites from attacks which inevitably have collateral consequences of harm to civilians.
Amnesty's silence about that systematic violation of the law of war is made worse by the fact that Hamas' "fighters" often wear no uniform or identifying symbols as soldiers of national armies must do, so that it is far more difficult to distinguish them from civilians in the first place.
These human shield tactics, used as well by Hezbollah in Lebanon, and the Taliban in Afghanistan, are what put civilians in harm's way, not Israel's attacks. Pretending such a duty does not exist, but insisting that Israel may not attack such sites because they endanger civilians, is to confer on Hamas de facto immunity from military action except at the precise instant a rocket is being launched and then only if no civilians are in the vicinity, a circumstance that does not often exist in Gaza. It is certain that those nations which ratified the Geneva Conventions and the Additional Protocols did not intend for international law to be a terrorist's most impenetrable shield.
It is equally telling that while Amnesty repeatedly denounces Israel's attacks as "disproportionate," it never explains to what the attacks are disproportionate. Reading its materials, it appears to understand proportionality to mean "too many Palestinian casualties," an irrelevant figure in calculating proportionality. But even on this made-up test of proportionality, Israel's actions pass muster. By Amnesty's own figures, the overwhelming number of persons killed are not civilians, but Hamas personnel. Hamas has so admitted, boasting of its "martyrs." By Israeli figures, some three-quarters of the dead are not civilians.
More importantly, the actual texts of the Geneva Conventions use an entirely different proportionality calculus. The texts talk of civilian casualties disproportionate to the expected military advantage, not casualties disproportionately on one side or the other. Amnesty makes no effort whatsoever to make any military advantage calculus, evidently on the theory that it is legally irrelevant.
We know, too, from prior correspondence with Amnesty that whatever shrunken conception of military advantage it has is at odds with that of the sovereign nations that have ratified law of war treaties. Amnesty thinks every individual attack (bullet) must be analyzed. The history of the relevant treaties established that what is relevant is whether the individual attack makes a measurable contribution to the overall military objective. In Amnesty's view, destroying a small missile depot or a single rocket launcher, insufficient in itself to change the strategic or tactual balance, can never justify harm to civilians. The law however is otherwise, so long as the attack has more than a trivial effect on the overall war effort. Wars are typically won by cumulating small actions, not by a few decisive blows.
Finally, Amnesty perversely criticizes Israel for warning civilians that attacks are planned. If Israel does not warn civilians, its attacks are, for Amnesty, indiscriminate; if it warns civilians (thereby often alerting legitimate targets as well, so that they too can flee), it is guilty of fear-mongering. This makes sense only if one thinks international law gives an absolute immunity to civilians from the costs of war. It doesn't.
Civilian casualties as such are always truly unfortunate, and to be avoided if possible. They are not illegal on the law as it exists, nor should they be so long as war is legal. Amnesty – if its real game is not simply sympathy for Hamas – might like it to be otherwise. It is free to urge a change in the law of war; it is not free to impose such a change unilaterally by distortion."
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