CNN op-ed: Israel is adhering to the laws of war

November 15, 2023 • 12:30 pm

Talk about a hot potato!  The current “progressive” view is that Israel, in its pursuit of Hamas in Gaza, has committed multiple war crimes. These involve killing a “disproportional” amount of civilians (now about 11,000, but those may include members of Hamas) compared to Israelis killed by Hamas (about 1210 counting about 10 IDF soldiers).  Further, Israel’s attacks have, it’s said, created a “humanitarian crisis”, depriving civilians of food, water, and fuel, and severely impeding the operation of hospitals.

Of course every rational person admits that Hamas has committed multiple war crimes by any criterion, including the butchering of civilians via direct attacks, the targeting of Israeli civilians by rocket attacks, the kidnapping of Israeli and non-Israeli citizens, the rape of women captives, and, above all, the use of human shields. The latter involve building Hamas installations inside and below hospitals, firing rockets willy-nilly at non-military targets.  But Hamas’s continuing war crimes tend to be overlooked, or even excused, in light of Israel’s relentless pursuit of Hamas, and despite the fact, that John Spencer shows below, Israel is going to tremendous lengths to minimize the deaths of civilians given that its goal is to extirpate Hamas.

CNN gives an editor’s note emphasizing that yes, the author has the cred to give this opinion, but also emphasizing that the opinion is his own, not CNN’s. That’s fine, as they do it with all their op-eds  Mostly I’m heartened to see an expert render such an opinion, one that many of us, including Sam Harris and me, share. But it’s not a popular opinion!

The author:

Editor’s Note: John Spencer is chair of urban warfare studies at the Modern War Institute (MWI) at West Point, codirector of MWI’s Urban Warfare Project and host of the “Urban Warfare Project Podcast.” He served for 25 years as an infantry soldier, which included two combat tours in Iraq. He is the author of the book “Connected Soldiers: Life, Leadership, and Social Connection in Modern War” and co-author of “Understanding Urban Warfare.” The views expressed in this commentary are his own. View more opinion on CNN.

Click to read:

Now many of us, if we know the laws of war, could probably guess the content of this piece, but it’s good to see it laid out by an expert.  I’ll quote Sam Harris before I quote Spencer:

If you are recognizing the humanity of actual barbarians, while demonizing the people who actually worry about war crimes and who drop leaflets and call cell phones for days, in an effort to get noncombatants to leave specific buildings before they are bombed, because those buildings sit on top of tunnels filled with genocidal lunatics—who again, have just sedulously tortured and murdered families as though it were a religious sacrament, because for them it is a religious sacrament. If you have landed, proudly and sanctimoniously, on the wrong side of this asymmetry—this vast gulf between savagery and civilization—while marching through the quad of an Ivy League institution wearing yoga pants, I’m not sure it matters that your moral confusion is due to the fact that you just happen to hate Jews. Whether you’re an anti-Semite or just an apologist for atrocity is probably immaterial. The crucial point is that you are dangerously confused about the moral norms and political sympathies that make life in this world worth living.

The difference is summed up in this cartoon, which is not supposed to be funny but is pretty much true:

One of the issues is that we simply don’t realize how high the ratio of deaths of noncombatants to combatants is in warfare, and that this ratio is even higher in urban warfare in densely populated areas.  The death toll of civilians has, in recent years, been inordinately high, but Spencer insists, rightly, that Israel must do everything it can to minimize the harm to civilians. Except for the brief “siege,” which I thought was wrong, it pretty much has. The IDF strikes me as conducting the most moral warfare I’ve seen in modern times.

On to Spencer (I’ve left in his links as they’re educational and useful):

All war is hell. All war is killing and destruction, and historically civilians are inordinately the innocent victims of wars. Urban warfare is a unique type of hell not just for soldiers, who face assaults from a million windows or deep tunnels below them, but especially for civilians. Noncombatants have accounted for 90% of casualties per international humanitarian experts in the modern wars that have occurred in populated urban areas such as Iraq’s Mosul and Syria’s Raqqa, even when a Western power like the United States is leading or supporting the campaign.

Note that the 90% figure comes from a United Nations site.

More:

The destruction and suffering, as awful as they are, don’t automatically constitute war crimes – otherwise, nearly any military action in a populated area would violate the laws of armed conflict, rules distilled from a complicated patchwork of international treaties, court rulings and historic conventions. Scenes of devastation, like Israel’s strikes on the Jabalya refugee camp in northern Gaza earlier this week, quickly spark accusations that Israel is engaging in war crimes, such as indiscriminately killing civilians and engaging in revenge attacks. But war crimes must be assessed on evidence and the standards of armed conflict, not a quick glimpse at the harrowing aftermath of an attack.

Hamas forces indisputably violated multiple laws of war on October 7 in taking Israelis hostage and raping, torturing and directly targeting civilians, as well continuing to attack Israeli population centers with rockets. Years of intelligence assessments and media reports have shown that Hamas also commits war crimes by using human shields for its weapons and command centers and by purposely putting military capabilities in protected sites like hospitals, mosques and schools.

On the other hand, nothing I have seen shows that the Israel Defense Forces are not following the laws of wars in Gaza, particularly when the charges that the IDF is committing war crimes so often come too quickly for there to have been an examination of the factors that determine whether an attack, and the resulting civilian casualties, are lawful. The factors that need to be assessed are the major dimensions of the most commonly agreed to international humanitarian law principles: military necessity, proportionality, distinction, humanity and honor.  

. . .Of the remaining principles of the law of war – distinction, humanity (which, as the International Committee of the Red Cross phrases it, “forbids the infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of a conflict”) and honor in conduct of waging war – the principle of distinction is the most complex. Distinction requires Israel to “distinguish between the civilian population and combatants” and between civilian  facilities and military targets, while taking all feasible precautions to avoid civilian casualties. So far I have seen the IDF implementing – and in some cases going beyond – many of the best practices developed to minimize the harm of civilians in similar large-scale urban battles.

These IDF practices include calling everyone in a building to alert them of a pending air strike and giving them time to evacuate – a tactic I’ve never seen elsewhere in my decades of experience, as it also notifies the enemy of the attack – and sometimes even dropping small munitions on top of a building to provide additional warning. They have been conducting multiple weeks of requests that civilians evacuate certain parts of Gaza using multi-media broadcaststexts and flyer drops. They’ve also provided routes that will not be targeted so that civilians have paths to non-combat areas, though there have been some tragic reports that Palestinians from northern Gaza who have relocated to the south were subsequently killed as the war rages throughout the strip.

When Hamas uses a hospital, school or mosque for military purpose, it can lose its protected status and become a legal military target. Israel must still make all feasible attempts to get as many civilians out of the site as possible, but the sites don’t need to be clear of civilians before being attacked.

Unfortunately, it’s essentially impossible to empty a city of all civilians before conducting an urban battle. Some people always stay, and it can be impossible for the elderly, infirm, hospitalized and similar to evacuate. In the densely populated Gaza Strip, where most Palestinians have nowhere to fully escape the dangers of the war, the proportion of those who remain is likely to be higher, as border crossings remain closed to nearly all Gazans, many Palestinians object to leaving and Hamas has warned others not to go.

Spencer again emphasizes that Israel has to take all possible precautions to minimize harm to civilians, and although Hamas doesn’t meet this requirement (it does the opposite), Israel “does and should”. But he urges Israel to continue to construct safe corridors for civilian evacuation, allow humanitarian supplies into Gaza, and not strike “near certain safe areas or gatherings of civilians.”

Of course the vociferous pro-Palestinian “progressives” will argue that a disproportionality of deaths is what matters, but there’s also a disproportionality of intent.  Israel is interested in uprooting Hamas, not killing Gazan civilians (the IDF knows how damaging a high civilian death toll is to world opinion, which will affect the course of the war). In contrast Hamas is interested in killing Jews, civilians or not, and in fact prefers civilians, as they’re not armed. The disproportionality of deaths, concludes Spencer, is deeply saddening but unavoidable in a conflict like this:

There is no escaping that pursuing a terrorist organization touches off a nightmarish landscape of war. The visually repulsive imagery in Gaza essentially recreates the same scenes that unfolded under American and allied campaigns fighting Al Qaeda, ISIS and other terror groups, because that is what it looks like when you are forced to uproot a sadistic terror organization embedded in an urban area. Sadly, successful US-led or supported campaigns in places such as Mosul and Raqqa caused billions of dollars in damage and killed and displaced hundreds of thousands of civilians; that is the hellish reality of defeating terrorism.

Like all similar conflicts in modern times, a battle in Gaza will look like the entire city was purposely razed to the ground or indiscriminately carpet bombed – but it wasn’t. Israel possesses the military capacity to do so, and the fact that it doesn’t employ such means is further evidence that it is respecting the rules of war. It is also a sign that this is not revenge – a gross mischaracterization of Israeli aims – but instead a careful defensive campaign to ensure Israel’s survival.

h/t: Norm

18 thoughts on “CNN op-ed: Israel is adhering to the laws of war

  1. The figure of 11,000 dead in the first paragraph is presumably from Hamas. It seems a plausible number, but equally it could be very wrong.

  2. Jerry Coyne quotes Sam Harris thus: “I’m not sure it matters that your moral confusion is due to the fact that you just happen to hate Jews. Whether you’re an anti-Semite or just an apologist for atrocity is probably immaterial”. I have heard similar from Ben Shapiro. It’s a clear statement that there are only two sides in this struggle, and if you criticize the IDF in any way you must be a goddamn Hamas terrorist sympathizer. This is not true. It is possible to want Hamas to be completely demolished militarily but to think that the IDF has not done everything it could to to minimize civilian casualties. It spent the first few weeks of the Gaza operation, after cutting supplies of food, water, medicines and power, dropping 10,000 bombs on Gaza at huge civilian cost even before the military operation started. It required the population in the north to evacuate to the south, but continued bomb the south.

    The BBC recently ran an article which described how an Arab-speaking IDF member worked with a local North Gazan dentist to help him arrange the safe evacuation of firstly his apartment block and then 25 more so that they could be demolished. Very impressive, but I have to ask if there would have been so many civilian casualties if they had done this in the earlier stages of the bombardment. And was the wholesale demolition of apartment blocks necessary? What will be left in Gaza when this level of devastation is visited on the south? The Palestinians in Gaza, of course, do not the option of leaving the war zone as most refugees attempt to do, because they are not able to leave Gaza.

    The 4th Geneva Convention (AP-1) prohibits attacks on civilians which would be excessive to the concrete and direct military benefit anticipated (Principle of Proportionality). It is hard to see that principle being observed in Gaza. And I should be able to say that without being condemned as a Hamas supporting anti-Semite.

    1. I’m presuming you are qualified, Brian, to draw up an alternative operational plan for the IDF that would have accomplished the military objectives (which you seem to agree with) but with fewer civilian casualties. Israel also has to think of its military casualties in deciding whether and how to conduct an air offensive before committing ground troops. Armies have to accept that they will be expected to take some additional casualties in behaviour that reasonably spares civilians but the ratio is not infinite. Israel can, also reasonably, value its soldiers more than it values civilians who aid the fighters of the other side. All countries fighting an existential war must do this. We wouldn’t have bombed Germany’s cities at night for three long years during the Second World War if we had valued German civilians infinitely more than our own airmen and soldiers.* The direct military benefit was keeping the USSR in the war, being (at the time) the one army doing the heavy lifting against the Wehrmacht. Was that sufficient?

      What if the plan being executed really is the best the IDF can do, having considered all the factors you seem to think they didn’t? Is is still wrong to try to win? Or do you have to throw in the towel and concede defeat by human shields?

      The principle of proportionality is an aspirational question that is almost never formally adjudicated at the national policy level. You can have your own opinion about whether Israel should have conducted a less effective operation that cost them higher casualties. The opinion that counts, I suppose, is the coterie of U.S. Administration officials who have to decide, with President Biden, if they can continue to support Israel’s war aims as the rest of the world turns against it.
      —————–
      * That campaign aroused disquiet even during the war and was controversial all during the postwar life of the Bomber Command veterans.

      1. Arguably RAF Bomber Command would not have achieved as much as it did without ACM Harris who turned it round from its initial poor results much caused by poor equipment, lack of equipment and inexperienced aircrew. The arrival of the Halifax and the Lancaster together with better training and equipment took the war to Germany and Germans personally. RAF Bomber Command never received the recognition it truly deserved particularly as the loss rate of crew members was over 50%. The Memorial in London did not arrive until the 21st Century, 2012. Canadian Bomber Command aircrew initially suffered disproportionate losses because of design errors in the Halifax tail and the fact that its altitude capability and bomb load did not match the Lancaster. I served in RAF Bomber Command 230 OCU at RAF Finningley with the AVRO Vulcan B2 during the cold war and morale was high and we were proud to serve in a Command with a glorious history and we recognised it even it others did not.
        I recognise the skill of the IDF Air crews in their accuracy and the risks they take every time they are airborne.

        1. A sceptic would say that Bomber Harris making the war crimes more effective is nothing to be proud of.

          Personally, I find it difficult to justify the area bombing campaign. The fact that Britain was fighting an existential war (as Israel is now) and the campaign did have some effect on Germany’s capability to fight the Russians (and the British and Americans when they landed) provides some mitigation, but I couldn’t say for sure that it is enough.

          1. ACM Harris was never formally accused of war crimes, he carried out Churchill and the British Government Cabinet instructions. The raid on Dresden which everyone talks about was carried out both by the RAF and the USAAF. No individual from the USAAF was accused of war crimes either for European operations or the firebombing of Japanese cities or Hiroshima or Nagasaki. The statue in honour of ACM Harris in London was financed by Bomber Command Veterans.
            Scepticism is a luxury not enjoyed in carrying out duty in the military. In RAF Bomber command (Strike Command) during the cold war we would have carried out our instructions to the letter if ordered to deploy nuclear weapons. We were all volunteers.
            The nuclear attack submarines of today are all crewed by volunteers.
            Israel should continue its bombing campaign in Gaza regardless until the enemy is destroyed.

    2. I don’t see how the bombing or deaths from bombing are excessive. Even with the Hamas (no doubt inflated) number of 11,000 casualties and your figure of 10,000 bombs used, that is barely over one death per bomb. The death rate so far is less than 1% of the population. That seems to me to be the opposite of excessive. And that is before we know how many Hamas members make up the death count.

    3. A family member is in the US Army and has done many deployments to the Middle East, including several during the wars in Iraq and Afghanistan. When someone would talk to him about reducing civilian casualties and damage, he would always have the same reply.

      “Next time I deploy, why don’t you come along. You can help us clear buildings of jihadist fighters. I would love to have you show us a better way to do it. You take point.”

      It’s easy to say it could be done better from the safety and comfort of your armchair.

    4. Have you experienced urban warfare? Reading you comment leads me to suspect that might not be the case.
      I understand the wish that Israel conduct warfare against a well entrenched enemy hiding amongst civilians without breaking anything or inconveniencing anyone. However, that is just not the nature of war.
      My experience with smaller-scale conflict there is that the Israelis always exercise remarkable restraint, as they know perfectly well that they will be held to a much higher standard and level of scrutiny than any other fighting force in the world.

      I am willing to concede that there are civilians in Gaza, but I think far fewer than anyone is willing to admit. New evidence and testimony is revealing that the perpetrators of the 10/7 massacre included not only Hamas terrorists in uniforms, but armed and unarmed men, women and even young children. Civilian in dress, but playing an active part of the atrocities.

      And this- “When Tamil looked back toward the festival grounds, several hundred feet away, he said he saw Hamas commandos holding a group of Israelis at gunpoint. Several children, ages about 6 to 10, then emerged from a pickup truck wearing Hamas outfits, he said.
      “You could see the people on their knees and like begging for their life,” Tamir said. “I heard the screaming.”
      According to Tamir, the commandos gave some of the children rifles and directed them to execute hostages, which they did. The terrorists shot more of the hostages and loaded the survivors into the truck, he said.”

      There used to be a joke about a bumper sticker that said “My kid is an honor student… In one of Bin Laden’s terrorist training camps”. In Gaza, it would not be a joke. According to The Meir Amit Intelligence and Terrorism Information Center, even in 2011, at least 10,000 Palestinian children per year attended terrorist training camps, which included training with live ammunition.

      I have been watching this whole situation as closely as I am able to, and have absolutely no criticism for the IDF, except perhaps that they take too many personal risks while trying to avoid civilian deaths.

  3. I can’t but agree with Spencer.
    Using civilians (Hospitals, Schools, etc) as human shields is a war crime.
    It is a well known tactic used by Islamic fundamentalists, we saw the same in Iran in 1979 or in Lebanon in 1982.
    I think in this case it was an intentional tactic to get international condemnation of Israel: attack Israel in an outrageously criminal and genocidal way, and hide behind civilians for the inevitable response.
    Hamas’ actions were genocidal, while the IDF goes out of its way to avoid civilian casualties. Note, I do not trust the numbers of civilian casualties (although I guess they are high) emanating from Hamas controlled Gaza.
    Unconscionable and murderous tactics of Hamas. I’m not sure how much of it was ‘prodded’ by Russia, wanting to take the West’s attention away from Ukraine.

    1. Above, you write: “I think in this case it was an intentional tactic to get international condemnation of Israel: attack Israel in an outrageously criminal and genocidal way, and hide behind civilians for the inevitable response.”

      I agree with that statement, which leads me to think that Hamas is committing even worse crimes than using civilians as human shields. (How can it be worse, you ask?) It seems to me that Hamas is using civilians as actual weapons of war, munitions in the field of battle that Israel has little choice but to destroy (despite all reasonable efforts not to do so). Hamas isn’t just hiding behind civilians as shields; it is positioning them forward on the field of battle.

  4. When assessing “proportionality,” we must disencumber ourselves from the unsettling causalities of the moment, and factor in the deaths, suffering, and economic damage that will be prevented in the future.

  5. Douglas Murray, on “proportionality”:
    “Proportionality in conflict rarely exists but if we should decide that we have this fetish about proportionality, then that would mean that in retaliation for what Hamas did in Israel, Israel should try to locate a music festival in Gaza, for instance, and rape precisely the number of women that Hamas terrorists raped, kill precisely the number of young people that Hamas killed. They should find a town of exactly the same size and make sure they go door to door and kill precisely the correct number of babies that Hamas killed and shoot in the head precisely the same number of old-age pensioners.”

      1. Horses + Stirrups alone allowed a handful of conquistadors to claim the Incan empire with its millions of inhabitants. If you have a technological advantage, USE IT! (Long bows!) Fair should not be a consideration in war. I’m inspired by Israel’s restraint. Fair does not exist in the tactics of HAMAS…they are of a total war mentality. Aka, the worst kind of enemy.

        1. Quite right, fairness is not a consideration in war, where the objective is to win. But the treatment of non-combatants is. Israel signed the Geneva Convention which requires that casualties inflicted on civilians should be proportionate to the value of the military value of the action taken. It’s hard to reconcile that with the industrial scale demolition of homes, 12,000 deaths to date, (but let’s assume 4,000 were Hamas, so 8,000 civilians), and the denial of water, food, medicine to 2.3M people who are not able to leave. And that’s before the ground invasion really gets started.

  6. Jerry, can you please comment on these current ‘protests’ that seem to be deliberately targeting potential incoming Jewish students interested in admission to University of Chicago–they are targeting the tours with the message that Jews will not be welcome at this University: https://chicagomaroon.com/40594/news/in-new-strategy-pro-palestine-demonstrators-protest-directly-to-admissions-tour-groups/?unapproved=360&moderation-hash=c20dab114cf83201aed88100095ad631#comment-360

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