Based on the circumstances as reported here, the criticism of the IDF missile firing that killed ten people near a UN school is justified. Targeting three people on a motorcycle riding by a compound where civilians are lining up to buy food and other items amounts to an attack on civilians; the missile, according to the linked article, "hit the motorcycle" and then "crashed into the road," sending shrapnel flying "in every direction." The fact that the three people riding the motorcycle were the intended targets (and were apparently killed along with the others) does not matter, under standard notions of proportionality. So the UN Sec-Gen's statement ("a moral outrage and a criminal act") is justified.
(Note: Post edited slightly after initial posting.)
Update: Hank in comments has pointed out that the WaPo article, standing alone, does not provide enough info to determine whether this was a legal violation, because for that judgment one has to know what the personnel in the plane knew about the situation on the ground when they fired the missile. That point is right, although as I say in the comments it seems likely to me, as someone admittedly ignorant of jet-fighter technology, that the personnel in the plane either knew or could have informed themselves about what the situation on the ground was, i.e., that the motorcycle when they fired on it was passing a school with civilians standing outside.
Subscribe to:
Post Comments (Atom)
Posts
15 comments:
LFC
Granted the article does not provide enough details to support the accusation.
If the Motorcycle persons were clearly combatants the benefit of the doubt is that no war crime was committed. Proportionality is met if there was a target and there was no better way to engage it.
Why were combatants near one of their own civilian sites. If it was to provoke an attack killing civilians the the PLO committed a war crime.
That both sides committed a crime is not impossible.
But the article does not have enough information, and if you believe the press spokesman of either side there is bridge in Brooklyn I would like to sell you.
LFC
Granted the article does not provide enough details to support the accusation.
If the Motorcycle persons were clearly combatants the benefit of the doubt is that no war crime was committed. Proportionality is met if there was a target and there was no better way to engage it.
Why were combatants near one of their own civilian sites. If it was to provoke an attack killing civilians the the PLO committed a war crime.
That both sides committed a crime is not impossible.
But the article does not have enough information, and if you believe the press spokesman of either side there is bridge in Brooklyn I would like to sell you.
Opps!
Hank
You meant to write Hamas, not PLO.
One question/point I had was about jet-fighter technology (as I mentioned in a version of this post that I wrote as a comment at Cr.Timber). I.e. what cd/did the plane's crew know about the situation on the ground?
But basically it seems to me there is enough info in the article to conclude that this was very likely a violation of proportionality. The motorcycle was driving past the school. Why choose that moment to fire at it? That seems a clear violation, assuming it was possible for the IDF personnel in the jet to see or otherwise know what was going on on the ground. They may have been focused on the motorcycle to the exclusion of everything else, but that in itself seems a violation to me.
You write: "Proportionality is met if there was a target and there was no better way to engage it."
I thought proportionality meant, among other things, that the military value of the target has to be in some reasonable relationship to the likelihood of civilian casualties that an attack on the target will cause. So, for example, you can't drop a missile on one soldier if you can be
reasonably expected to know that that attack will kill 10 or 20 civilians. This incident seems to me a violation of proportionality in that sense.
Finally, the key statements in this article do not come from "press spokesmen" but from eyewitnesses talking to reporters.
"The harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective."
(from Wiki on proportionality)
This is contrary to your statement that proportionality is met whenever there is a legitimate target and "no better way to engage it." The proportionality principle means that sometimes you cannot attack a legitimate target in any way if the resulting civilian harm will be excessive in relation to the "concrete and direct military advantage" that a successful attack on the target will produce.
http://en.wikipedia.org/wiki/Proportionality_(law)#International_humanitarian_law
On a different incident involving shelling of a school, see
http://www.lawyersgunsmoneyblog.com/2014/08/minimizing-civilian-casualties
Walzer on proportionality and related issues as they apply here:
http://www.newrepublic.com/article/118908/2014-gaza-war-how-should-israel-fight-asymmetrical-war-hamas
LFC
One of the annoying things about this war is both sides and there supporters are making loud war crimes cliams with little substantive evidence. these are wfare" tactics not law. The strong emotions created by these tactics only decrease the possibility of an eventual peace.
Kenneth Anderson
Particularly as I scan the social media, the tendency to make judgments about the rights and wrongs of the current Israel-Hamas conflict on the basis of which side has had more civilians killed is hard to resist. There’s a lot of talk about “disproportionate” killing or attacks, and the underlying assumption is often that assessing proportionality in the law of armed conflict is essentially judged by looking at the effects afterwards and, in sum, asking if a lot more of one side’s civilians got killed than the other side’s.
It’s an easy assumption to make, but altogether wrong as a matter of the actual law of armed conflict. So I welcome a new measured, careful discussion by Emory Law School professor Laurie Blank, describing what proportionality means in the law of targeting (which is a major part of the law of armed conflict).
The article he links. But read his full comments as well.
Dr Blank wrights
Proportionality, however, is a legal term with a specific legal meaning. It is one of a set of fundamental legal obligations that helps to minimize suffering during wartime. The principle of proportionality forbids attacks in which the expected civilian casualties from the attack will be excessive in relation to the anticipated military advantage gained.
snip
Third, the essential analytical factor in the proportionality framework is "excessive." Attacks that are likely to cause excessive civilian casualties in light of the military gain from the attack are prohibited. Not attacks that are likely to cause any civilian casualties, nor attacks that are likely to cause some civilian casualties, nor attacks that are likely to cause civilian casualties slightly greater than the military gain.
greater than the military gain.
Fourth, proportionality is a prospective analysis, as the wording of key treaty provisions highlights: "expected" civilian casualties; "anticipated" military advantage gained; and "in the circumstances ruling at the time." Commanders must assess whether the risk of civilian harm is excessive given the anticipated military advantage based on information about the target, about civilians in the area and their patterns of movement, about the weapons being deployed and their known or anticipated blast radii or other consequences, and a host of other considerations. The lawfulness of attacks then depends on whether those assessments were objectively reasonable based on the information available at the time of the attack. Hindsight has no role here.
Part 2.
Q. So what is Israel's anticipated military advantage to be gamed?
This is the first question that must be attacked asked.
Hamas is launching indiscriminate rocket attacks against Israel. This is a situation that no country can tolerate if has the means to stop it. Art 52 UN Charter enshrines the right of self defence. The UN norm on on "Duty to Protect" would suggest that Isreal has a duty act in defense of it's population.
A. The anticipated gain is the the destruction or serious damage to Hamas's ability to launch attacks. Wheter civilian casuties in general are excessive must be measured against that goal. It will certainly be years before that sort of information is in the public record.
For the specific incident you cited we would need to know what information and options the Israeli commanders on the spot had prior to the incident. Not after the fact effects. This information is not availble in the article. It is really iresponsible leaders of intentional organazityions to make that kind of accusation on the information presented in the article.
Or intent matters.
N.B. See there comments on the probabal long term effect of using "after the fact" analysis to make decisions on legaity.
Hank
"For the specific incident you cited we would need to know what information and options the Israeli commanders on the spot had prior to the incident. Not after the fact effects. This information is not availble in the article. It is really iresponsible leaders of intentional organazityions to make that kind of accusation on the information presented in the article."
Have you read what I've written in this thread? (I've had some wine so this may not be quite as coherent as I'd like).
Let me state or restate:
1) An IDF aircraft fired a missile that hit a motorbike, then hit the road, killing 7 (I think it was) civilians.
2) If the personnel in the IDF jet fighter knew that the motorbike was passing a school when they fired and if they saw the civilians in line for food, the attack was a pretty clear violation of proportionality.
3) Does the article tell us what the IDF personnel in the plane knew? No, it doesn't. However, absent expert knowledge of jet fighter technology it seems likely to me -- not certain but likely -- that the personnel in the plane either knew or shd have known, either from naked eyesight or onboard plane technology, that the motorbike was passing a school when they fired on it.
4) Thus it seems likely -- not certain, but likely -- that this was a violation of proportionality.
5) One cannot be *certain* w/o knowledge of jet fighter technology that I lack.
This is what I said, essentially, in the first comment in this thread if you go back and read it. (Perhaps I cd have said it a little more clearly in the orig. post.)
Intent (distinction) and proportionality are 2 different things. If you violate the second, the first doesn't matter. That was my point (or one of them).
[continued in next box]
Judging whether anticipated civilian casualties will be 'excessive' in relation to the anticipated military advantage is quite subjective, as Walzer pts out in the TNR piece I linked. (Hence he advocates an additional principle having to do w willingness of the side launching an an attack or doing the firing to expose its soldiers to some risk -- also somewhat subjective.)
Not sure who you're quoting here, but w.r.t this:
"The anticipated gain is the destruction or serious damage to Hamas's ability to launch attacks. Wheter civilian casuties in general are excessive must be measured against that goal. It will certainly be years before that sort of information is in the public record."
I think the last sentence, the italicized one, is wrong. E.g. if an investigation in the following weeks shows that IDF fired non-precision artillery shells in the general direction of a school (as has been alleged) and hit the school, that's a violation of proportionality right there. Why? Because under the prospective analysis, the anticipated military gain from firing non-precision artillery shells in the direction of a school can't possibly outweigh the anticipated civilian casualties -- or at the very least, it wd require an unjustified leap to assume that it cd.
The implication by Kenneth Anderson and Laurie Blank that you can't tell anything whatsoever about proportionality from casualty figures also seems wrong. Yes, it's a prospective analysis, but at some pt it becomes legitimate to ask whether the anticipated mil. gain of e.g. degrading Hamas' capacity to fire rockets (that
for the most part don't hit anything)
can possibly outweigh several thousand civilian casualties. It does not answer the question, but it does suggest there might well be a proportionality violation.
In sum, because the key word "excessive" is somewhat subjective, the legal standard is somewhat subjective. It is easy to second guess etc and I understand
that. But to suggest that it will be years before enough info will become available to make judgments seems wrong.
Also, the moral question is separate from the legal one. An act can be immoral if it isn't, strictly, illegal.
The larger context here is that Israel has Gaza under blockade, Israel has refused to make the nec. compromises that wd have been necessary to reach a peace agreement w the PA, and the IDF has launched an attack on a densely populated area, the Gaza Strip, that even under the most careful attention to the laws of war was going to produce a fair # of civilian casualties. Although it is too soon to make definitive legal judgments, it seems probable that while some IDF personnel are paying scrupulous attention to their legal obligations, others, as Walzer suggests in the linked article, are probably not. B.c that's often the way it is. It is difficult to make these judgments at a distance, granted, but not always impossible.
Finally, it borders on irresponsible for Kenneth Anderson, who is I believe a prof of law at Washington College of Law, American Univ., to say that as he "scans the social media" he sees a "tendency" to misunderstand proportionality and what it is, and to then write as if everyone misunderstands. Instead, he shd read a piece by someone who knows what he's talking about and who disagrees w him and Blank on certain pts, rather than going after the obvs. low-hanging fruit of "oh i've scanned the social media and some people don't understand." You don't say. What a surprise.
Sorry about the tone of this but I'm not in a good mood today.
correction:
sentence shd read "an act can be immoral even if it isn't, strictly, illegal."
Also, this:
Wheter civilian casuties in general are excessive must be measured against that goal"
The question whether civilian casualties in general are excessive is only one of the relevant questions. Particular acts may be judged to violate proportionality even if civilian casualties "in general" -- i.e. from the whole campaign -- are (eventually and in light of all available info) not deemed excessive. (which i think is an unlikely judgment here but too early to make absolutely definitively, I suppose)
LFC
I think we agree more that we disagree, but disagreeing is a way to learn.
Post a Comment