Generating predictable newspaper headlines around the world, Amnesty International has issued a report calling for an arms embargo on Israel and Hamas. Journalists dutifully reported that demand, as well as Israel’s criticism of Amnesty’s report. The impression created is of the usual factual dispute about claims of human rights violations.
It’s a pity that coverage of the report has been so shallow. In fact, the Amnesty report is based on a set of assumptions about international law that are shared by some international lawyers — especially those affiliated with self-styled “human rights” groups — but which are rejected by most militaries and are impossible to reconcile with the governing legal texts.
At the heart of this dispute is a fundamental disagreement about the purpose of the law of war: Is it to regulate war, while minimizing harm to civilians? Or is it to protect civilians above all other considerations?
The latter position, as one of its advocates, sociologist Martin Shaw, has acknowledged, results in “new kinds… of delegitimization of war.” Nations that called the law of war into being to regulate war would no doubt be surprised to learn that they had unwittingly agreed to outlaw it.
The recent Amnesty report illustrates the legal understandings used by those who would invoke the law of war to delegitimize it entirely. Under current law, killing civilians as a collateral consequence of an otherwise legitimate attack on a military target is illegal only if (to quote the Geneva Conventions) it is “excessive in relation to the concrete and direct military advantage anticipated.”
Although it frequently denounces Israel’s recent campaign in Gaza as a whole and labels specific incidents in which civilians were killed as disproportionate, Amnesty never once in its report gives any consideration whatsoever to any possible military justification for the challenged actions. Not once. It tries to avoid this problem by labeling Israeli attacks “indiscriminate” but offers no proof that Israel has engaged in such attacks other than the fact that civilians were killed.
Scholars and lawyers debate how one assesses military advantage, how one weighs it against harm to civilians, and whether one judges individual military actions standing alone or as a contribution to a larger effort, whether the relevant perspective on military advantage is that of the commander based on what he knows at the time of an attack or a retrospective look by a neutral third party.
Amnesty does not attempt any weighing of military advantage. It cites no evidence about its absence (or its insignificance) in relation to particular attacks or to the entire assault on Hamas. It does not engage in any weighing of the value of achieving a military aim against the foreseeable harm to civilians. For Amnesty, the fact of civilian casualties establishes a war crime.
In a related vein, Amnesty’s report nowhere notes the fact that Hamas often places its military resources in and among civilians. This is quite odd, because the foundational principle of “distinction” in international law both requires that military resources not be placed among civilians and holds that placing such resources among civilians does not immunize otherwise legitimate targets from attack.
Hamas’s use of the tactic is itself a war crime, which Amnesty strangely passes over in silence. Use of the practice is not in doubt, having been confirmed by reporters, Human Rights Watch and other international observers, including the under-secretary-general of the United Nations, as well as substantial photographic evidence supplied by Israel.
The key point is that in failing to account for this practice, and its impact on an attacker’s military options, Amnesty again removes any consideration of military necessity as a justification for harm to civilians.
It would be unrealistic to expect that in any large-scale military action, all soldiers will act in keeping with the law of war. It is likewise inevitable that in the confusion and panic of battle, actions will be taken that in retrospect were mistaken, unnecessary or could have been foregone without any major harm to military effectiveness, although these categories of action are generally not war crimes.
What undergirds Amnesty’s call for an arms embargo, however, is a unilateral revision of the law of war to eliminate consideration of military effectiveness, in favor of the protection of civilians. It would be wonderful if war could be waged that way, but of course it can’t. Today’s target is Israel, but the bloodless war Amnesty would require — on penalty of a war crimes prosecution — would, as a practical matter, outlaw all military action against irregular forces, according groups like the Taliban, Hamas, Hezbollah and Al Qaeda de facto immunity from military action.
Amnesty may in good faith believe that its view is the way forward. But the texts of the law of war, agreed to by the nations of the world faced with real threats to their security, lend no support to Amnesty’s dewy-eyed view.
Marc Stern is acting co-executive director of the American Jewish Congress.
This is a lawyer's argument. It goes on forever, and it misses the point.
Amnesty International was founded in 1961 by Peter Benenson, a Jewish lawyer.
The extermination of the European Jews during World War II was in everyone's mind, and people said, "How could the world remain silent about such horror?" Amnesty International was formed by people who didn't want to remain silent.
Amnesty International didn't just talk, they've been effective. They've defended Jews in the Soviet Union, gotten them out of prison, and gotten them to emigrate.
They believe that Jews will never be safe unless everyone is safe.
Amnesty International has advocated the rule of law, and its application to every party. They have even-handedly condemned the Palestinians and the Israelis. This has bothered the uncritical advocates of Israel -- it's bothered the people who are wrong. But the only way to protect Jews, and everyone else, is to apply the law fairly to everyone. We can't give a free pass on human rights to the Israelis (or anyone else, including the Americans).
I can cut through all your arguments with one sentence: That which is hateful to you, do not do unto others.
When the Cossacks, and the Nazis, and the other anti-Semites of history killed our children, it was hateful to us.
So is it hateful to the Palestinians when we kill their children, as we killed the three daughters of Dr. Ezzeldeen Abu al-Aish, a truly saintly man who put himself in danger to work for peace and whose response was to wish that no more Palestinian or Jewish children would be killed. http://www.youtube.com/watch?v=NrNnK3XviRk
When I hear Dr. al-Aish's anguish, I'm in no mood to hear your rationalizations. Israel must stop the killing now.
P.S. Here's a current link to the al-Aish broadcast.
http://www.youtube.com/watch?v=8UxJWdCwOpc
Norman makes a number of incorrect or illogical assertions: AI has certainly not been even-handed; to judge AI's words and deeds requires that we scrutinize them, not the ancestry of AI's founder; to disagree with a particular argument it is necessary to take issue with it, not to perform the lazy alchemy which sweeps away all criticism as "uncritical advocacy". Ultimately, though, it his belittling of a legal argument with the statement that, well, this is a legal argument, that is silliest. If he disagrees with the points made, then by all means, say why. His invitation to readers to simply dismiss that which he is uninterested in reading, on the other hand, is the most arrogant invitation of all.
OK, go ahead and scrutinize Amnesty International's words to see if they're even-handed.
http://www.amnesty.org/en/library/info/MDE02/005/2002
Marc Stern doesn't cite the Amnesty International report that he's referring to, so I can't read it critically and decide whether it's accurate on the merits, even if I wanted to. If somebody writes sloppy, unverifiable essays, I don't feel obligated to try to figure them out.
But you can see the Amnesty International reports on Israel and Palestine http://www.amnesty.org/en/region/israel-and-occupied-territories
and see how they regularly condemn both Israel and Hamas, eg, "Both Israel and Hamas used weapons supplied from abroad to carry out attacks on civilians..."
So I repeat: Amnesty International has even-handedly condemned the Palestinians and the Israelis. This upsets people who want to defend the Israeli government, even when they commit the most horrible crimes, like killing children.
The rest of us Jews (and others) are upset that Israel is violating Hillel's teaching: that which is hateful to you, do not do unto others. Israel must stop killing Palestinians.
Norman's moral compass is as skewed as his logic. To equate the murdering of Jews by Cossacks and Nazis, who killed my great-grandparents simply because they were Jews, with the killing of GazaN civilians in the collateral damage of war (or perhaps Norman does not think this is a war?) is to commit the most egregious outrage he can perpetrate as a human being, let alone a Jew, in this situation: to accuse the victim of being The aggressor and concomitantly, to assert that the aggressor has been victimized. I daresay that no parent in the world, even one with no compassion, could help but feel at least an iota of the pain felt by Dr. al-Aish as a result of what is truly a tragedy. But Dr. al-Aish's loss is not the whole story.
"What is hateful unto you, do not do unto your fellow man" does not trump "When your enemy comes to murder you, rise up before he does and kill him first (in other words,beat him to the punch)." The fact is that not even THAT is what has been happening in Gaza, as the Israeli public has not been under any delusions since the Gaza "evacuation" and its response by the Arabs in Gaza, what their true intentions have always been.And still, for 3 long years they put up with nearly daily attacks on their own children and families. Every long-suffering Israeli, and any American Joe Lunchbucket, understands two basic facts of life: 1) when your family (civilians, remember?), home and country are being subjected to real, present and constant danger to life and limb, some kind of protective (and probably also preventative) action is called for; and 2) that you don't bring a knife to a gunfight.
In another place and time Norman and his ilke-minded keepers of our collective social conscience would have been trying to convince my parents that "we really ARE all going to take showers" as they were led to the "delousing" chambers.
I am saddened by the injuries and deaths sustained by the Gazans during ‘Cast Lead’ – those of the civilians and those of the Hamas militants. However, these are the costs of war, and there is a war in progress, a war that Hamas insists on continuing.
I am proud that consistent with defending its citizens, Israel, for the most part, did its best to avoid harming civilians. The stories to the contrary, which were spread by irresponsible U.N. personnel, were false and have been retracted.
The Cossacks killed my mother's relatives too.
it may not be much of help to israel that most ash'c voelken are of khazaro-slavic descent. and most of them, have chosen to remain in their ancestral lands or have migrated to US, canada, australia, s.america.
it makes more sense to look at israel as minor actor/factor in the ME. even if expanded to include ?all or parts of jordan/leb'n/syria/iraq, it wld still remain a near-total dependency on the US/NATO lands.
the region has oil and not much else; israel, as extant now, being wretchedly impoverished; i.e., no rivers, lakes, minerals, etc. it is the US-Europe-Israel that controls the ME; presently, Israel as a component of the triad is used mostly for barking up the wrong tree.
i am sure that at least judaists or adherents of a cult/shamanism wld like to see an israel as an interdependency and not a total dependency that it is now.
it is a mystery why judeo-christian bloc ever needed israel; it cld have done all that it had done thus far w.o. israel; including shopping for and buying arab and pal'n leaders.
it may be that, at least in US, domestics had to be deluded into believing that, what was done against pal'ns, was because israel had been in danger and, of course, pal'ns being terrorists; thus it was from the start [?1920] a war against terror.
and racism/demonization still a strong weapon in judeo-christian hands. more cld be said. tx
i speak as a strong socialist long, long ago our army ceased to be our army. thereafter, we lost our lands and had to till other people's fields.
in US, our CIA, FBI, police was never ours; it always had been theirs. same for constitution, army, jurisprudence, 'democracy' thus i wondered how far behind wld be ICC,Amnesty, Red Cross, Human Rights before being swallowed up.
of course, we've never had a democracy anywhere; the basic structure of governance has not changed since at latest with the rise of sumer city states. more cld be said. tnx
I have read in one Jewish publication that the photograph of a father holding his son after he was shot by Israel fire is now believed to have been staged by a french photographer & the palestinians....also I heard Jimmy Carter refer to his belief that Israel targeted a U.N. school for children. When questioned by Larry King he stated that it is true because the U.N. said it is true. Recently I read again in one Jewish publication that the U.N. recanted this story. Does anybody Know the true or at least the latest "truth".
Since when the the "Jewish Golden Rule" prohibit self-defense? Israel has not target Arab civilians. It is Hamas that uses their own civilians as cover for their fighters precisely in order to raise a hue and cry when those civilians are killed. Hamas is the one violating the Geneva Convention by doing this. Unfortunately, Amnesty International and other anti-Israel folks fall for this Arab propaganda ploy. Hamas has declared eternal, genocidal war against Israel and the Jews. Just look at the Hamas Charter which says this:
"Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it" (The Martyr, Imam Hassan al-Banna, of blessed memory).
"Our struggle against the Jews is very great and very serious."
HADITH Sahih Bukhari [4:52:176] Narrated 'Abdullah bin 'Umar: Allah's Apostle said, "You (i.e. Muslims) will fight with the Jews till some of them will hide behind stones. The stones will (betray them) saying, 'O 'Abdullah (i.e. slave of Allah)! There is a Jew hiding behind me; so kill him.' "
This last one is a statement by Muhammad and is accepted as authentic by all religious Moslems. What we are dealing with here is an Islamic war against the Jews. This is not a matter of redrawing lines on a map. This is not a territorial conflict; it is a religious one. Islam would continue its war against the Jews even if Israel did not exist. Just this week, an Egyptian cleric said so, and he quoted the Koran in numerous places in order to prove it. Broadcast on Egyptian TV to his fellow Moslems, he said: "Your belief regarding the Jews should be, first, that they are infidels, and second, that they are enemies. They are enemies not because they occupied Palestine. They would have been enemies even if they did not occupy a thing. Allah said: “You shall find the strongest men in enmity to the disbelievers [sic] to be the Jews and the polytheists.” Qur'an 5:82.
International humanitarian law was more or less drawn up by the European colonial states, so it should come as no surprise that they tend to promote colonialism, primarily by making illegal most of the tactics that are necessary for colonized people to liberate themselves, while leaving relative freedom for the colonizer to operate.
Nevertheless, Amnesty International has alleged, and its researchers have found, Israeli practices that clearly violate international law, regardless of whether the operation had military justification or whether Hamas used human shields.
For example, AI (and other investigating organizations) found that Israel used white phosphorus in civilian areas. Some types of weapons, white phosphorus included, may not be used where there are civilians because of the horrible pain and suffering they inflict. Israel's use of white phosphorus in civilian areas is a per se violation, not subject to the proportionality analysis.
For another, AI found that Israel in some cases targeted civilians and civilian structures, and in other cases used disproportionate or indiscriminate force.
If anything is a stretch, it's AI's condemnation of Hamas. It's acknowledged by all that Hamas's rockets are not accurate enough to allow for an inference of what is targeted.
As for the argument that Hamas purposely places military targets near civilian areas - I'm aware that it's constantly asserted, but has it ever been demonstrated? Maybe AI passed it over because it found no evidence?
In any case, the main crime here is not the violations of international humanitarian law, it's Israel's unlawful aggression. In other words, not the way in which Israel conducted itself during the war, but the fact that it started a war.
Uri, here is evidence of Hamas purposely using mosques and schools for cover and placing military camps in civilian areas:
http://idfspokesperson.com/2009/01/22/intellignece-maps-hamas-uses-mosques-and-schools-for-cover-22-jan-2009-1215-ist/
Here are two aerial photographs which illustrate how Hamas deploys rocket launchers within densely populated areas in the Gaza strip, next to schools, mosques and medical facilities. Residential buildings are used as arms depots and rigged with explosive charges, without any consideration given to potential civilian casualties:
http://idfspokesperson.files.wordpress.com/2009/01/intelmaps1.jpeg http://idfspokesperson.files.wordpress.com/2009/01/intelmaps2.jpeg
This map, confiscated Wednesday (Jan. 7) by IDF paratroopers operating in the north of Gaza, shows how Hamas uses an entire neighborhood, rigging it with explosive devices and putting the entire civilian population at great risk. The map shows the al-Tatraa neighborhood in Gaza City divided into three areas of operation (red, blue and green). The dots on the map indicate where Hamas operatives had planted a variety of IEDs (improvised explosive devices), with the colors indicating the type of IED. Additional marks show sniper positions next to mosques. Next to the entrance of the el-Tawid mosque near to Shauuda Plaza at the top left of the map there is a sniper posting with marking indicating the direction of fire marked on the map. At the bottom center of the map there is a gas station where Hamas planted an IED which, if activated, could cause a very large explosion throughout the neighborhood:
http://idfspokesperson.files.wordpress.com/2009/01/gazahamasmap.jpg?w=500&h=343
An overall study of the map demonstrates how Hamas deliberately uses civilians, using them as live targets and hiding behind them; they plant IEDs at the enterances of homes, they booby trap homes and they use places of worship, all with no regard to collateral damage or civilian lives.