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!
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.
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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.
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 broadcasts, texts 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.