I was floored by this piece on slaw.ca this morning by Amnesty International Canada’s Alex Neve criticizing Canada’s alleged unwillingness to condemn Israeli human rights abuses during this summer’s Gaza war. You can make of it what you like, but what struck me was how it so perfectly demonstrates Amnesty International’s intellectual bankruptcy and moral obliviousness. It also demonstrates, no doubt unintentionally, the almost obsessive fixation that many human rights activists have with Israel.
Consider as a starting point, Neve’s characterization of Canada’s defense of Israel:
“At every turn the Canadian government has steadfastly refused to criticize Israeli actions – even mildly. No matter the circumstances. No matter the nature of the attack. Blame was always directed back to Hamas. A hospital or a UN school is hit by Israeli bombs and it is Hamas’ fault. The argument goes something like this: if Hamas was not launching rockets, Israel would not have to respond and the unlawful attack would not have happened.
But that is not what international law says; not international humanitarian law and not international human rights law. Instead international law operates in accordance with that age-old playground maxim: two wrongs do not make a right. In the face of accusations of war crimes or crimes against humanity it is simply no excuse or defence to say, but the other guys did it first. Where and when would that ever end? Self-defence; yes, of course. But in accordance with international law. And certainly not by means of war crimes or crimes against humanity.” [emphasis added]
To say that this is a gross mischaracterization of both Canada’s position (and that of any of Israel’s defenders) and of international law is a massive understatement. The argument goes nothing like that. The argument is not that Hamas’ (illegal) attacks on Israeli civilians justify attacks on civilian facilities like schools, hospitals or mosques (or the Palestinian civilian population more generally) – that two wrongs make a right, as he suggest. Indeed, Neve’s very phrasing of the alleged defense concedes the alleged illegality of Israel’s actions (i.e., “the unlawful attack would not have happened”). No thinking defender of Israel (and certainly, neither the governments of Israel or Canada) would for a second concede that point.
Instead, the actual argument goes something like this: Hamas’ (well documented) practice of using civilian facilities (or areas adjacent to civilian facilities) to launch attacks on Israel make such facilities (or areas) potentially legitimate military targets or, at least, expose such facilities (and the civilians inhabiting them) to legitimate military attack (i.e., an attack on a military target that kills adjacent civilians is not prima facie an illegal attack).
What’s more, contrary to Neve’s cartoon character defence of Israel, this is a defense that actually has a substantive legal basis. While the Rome Statute (and the Geneva Convention before that) provides a general immunity from attack to civilian facilities, that immunity is not absolute. In particular, such facilities may be subject to attack where they are “military objectives” (Article 8(2)(b)(ii) of the Rome Treaty). The use of schools, hospitals or mosques (or their vicinity) for military purposes by Hamas, as a matter of international law, renders those facilities vulnerable to legal attack. If Hamas uses civilian facilities for military purposes, attacks on those facilities are not prima facie unlawful.
Granted, even if erstwhile civilian facilities are military objectives potentially subject to attack as a result of Hamas’ actions, Israel would be precluded from attacking such facilities where the likely civilian casualties would be “clearly excessive in relation to the concrete and direct overall military advantage anticipated”. But the determination of whether such casualties are “clearly excessive” is necessarily a judgement call, which requires a detailed analysis of the relevant facts and circumstances of each attack – which analysis is seldom present in the sort of knee-jerk instant assertion of human rights violations of the sort regularly made by Amnesty International and its ilk. As the chief prosecutor of the International Criminal Court made clear in relation to allegations of war crimes violations on the part of the United States in Iraq, the threshold of whether civilian casualties are “clearly excessive” to the military advantage to be gained is a high one, the mere “death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime”.
Seen in that light, Canada’s refusal to condemn Israel for alleged war crimes has somewhat less to do with it’s alleged indifference, and much more to do with a healthy respect for the actual laws of war, which respect is utterly lacking from Neve’s piece.
But of course, none of that subtlety is conveyed by Neve. Instead readers are presented with a self-evident strawman of both Canada’s position and Israel’s defense. If Amnesty wants to be taken seriously as a fair-minded critic of Israel, it should fairly present, and if possible rebut, the actual claims of Israel’s defenders. That Neve doesn’t do so seriously undermines both his own, and Amnesty International’s, credibility on this issue.
Moreover, this isn’t just an intellectual failure on the part of Neve and company, as also speaks to the allegation of moral relatively against Amnesty International that triggered his article. By obfuscating (or, more accurately, ignoring) the inherent legal and moral ambiguity surrounding Israel’s actions, Neve is able to present Hamas and Israel as being morally equivalent perpetrators of wrongs.
Yet, it is clear from the above discussion that international law recognizes a distinction between the actions of Hamas and those of Israel. Although Hamas is probably guilty of numerous war crimes against the Palestinian people (in particular the practice of fighting from amongst civilians or civilian facilties or of fighting without a uniform, hence exposing Palestinian civilians to attack), for the purposes of this discussion, I think it’s fair to say that Hamas’ intentional rocket attacks on Israeli communities (in violation of Article 8(2)(b)(i) of the Rome Statute) is prima facie a war crime (given the essentially unaimed nature of such attacks, it difficult to accept any argument that these attacks are intended to achieve a legitimate military objective). They’re terror attacks, pure and simple.
The same is not obviously true of Israel’s attacks on Palestinians. As noted above, killing civilians, while tragic, is not inherently a war crime. It is only where (i) civilians are the direct object of the attack, (ii) or where civilian casualties are “grossly excessive” relative to the military advantage to be gained, that the death of civilians becomes a war crime. But it’s not clear, at this point, that either of those claims can credibly made with respect to Israel’s actions in the Gaza war (or, if they can be made, that such actions occurred as a matter of policy, rather than as a result of isolated actions by individual Israeli soldiers).
Did Israel intentionally target civilians? If so, the IDF is the world’s most hapless military. Even a simple statistic should illustrate this point. The IDF launched roughly 5000 air raids during the Gaza war. Even if one attributed all Palestinian deaths to air raids by Israel (which is clearly not appropriate), the IDF – one of the world’s premier air forces – managed to kill 1 Palestinian every 2.5 raids. Hmm, it’s almost as if they weren’t trying… Similarly, were Palestinian civilian deaths “grossly excessive” in relation to the the military advantages sought? I’m not sure how one could do such an assessment at this early stage (particularly given there’s still an ongoing debate as to just how many civilians were killed by Israel), but in any event, as I’ve noted elsewhere, given the intensity of the fighting in a densely populated area, it’s far from clear that civilian casualties are “grossly excessive” relative to other similar wars by other Western countries.
In any event, at this point, Amnesty International can’t be bothered with that analysis. Neve and company aren’t interested in assessing Israel’s legal defenses and moral justification of its actions – it’s attacks are wrong, period. And, hey, they’re entitled to that position, but don’t for a second pretend that it isn’t a position based on moral relativism. To equate prima facie illegal and immoral acts (terror attacks on civilian populations) with potentially legally and morally defensible acts (attacks on military objectives resulting in civilian casualties) is to diminish to moral wrongfulness of the former, while (potentially, at least) overstating the wrongfulness of the latter. That is almost the definition of moral relativism, equating morally distinct act.
Nor is it a defense to say “sure, but for all you know, Israel did commit war crimes”. Sure, maybe it did, but the difference between the moral relativist and the morally conscious person, is that the latter actually assesses the moral wrongfulness of Israel’s actions before denouncing them as war crimes. Amnesty International can’t be bothered.
One other thing caught my eye about Neve’s piece. Consider his proposition, in reference to the Gaza war, that:
“In a corner of the world that has been enmeshed in decades of repression, terrorism, reprisal, defence and revenge the summer of 2014 will long be remembered for the scale and ferocity of the violence.”
Think about that statement for a second. In the “corner of the world” inhabited by Israelies and Palestinians, namely the Middle East, the summer of 2014 saw
- the continuation of the Syrian civil war, now well into its third year, which has resulted in the deaths of hundreds of thousands of Syrians (mostly innocent civilians), the flight of millions more, the use of chemical weapons and the destabilization of neighbouring countries (see below). As I noted a few months ago, in one weekend in July, more people had been killed in Syrian than had died in 3 weeks of fighting in Israel up until that point; and
- the rise of the Islamic State terrorist movement, which conquered large swaths of territory in Iraq, killed thousands of civilians, executed prisoners of war, routinely engaged in acts of sexual violence, engaged in ethnic cleansing, beheaded journalists and destroyed the cultural heritage of the cradle of civilians (all of which, I’ll concede, is amply documented by Amnesty International).
So, yes, in the Middle East, the summer of 2014 has been decidedly gruesome, but what does that have to do with the Gaza war? The antics of the Israelis and Palestinians are little more than a sideshow compared to the truly horrific atrocities committed by their neighbours in Syria and Iraq. Only someone with a truly perverse fixation on Israel could look at the maelström of death and destruction in the Middle East in 2014 and conclude that it was the Gaza War that “will long be remembered for the scale and ferocity of the violence”.