Amnesty’s War on the Law of War

Opinion

By Marc Stern

Published March 04, 2009, issue of March 13, 2009.

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.



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