The Israeli Army & Human Rights: An Exchange

To the Editors:

David Shulman, while agreeing with Richard Goldstone that Israel did not target Gaza civilians, inconsistently claims that the IDF relaxed its rules of engagement to encourage conduct endangering noncombatants [“Goldstone and Gaza: An Exchange,” NYR, July 14]. That illogical theory—based on hearsay and anecdotes—is refuted by hard statistical evidence. The ratio of civilian-to-combatant casualties in Gaza was about 1:1, far lower than in Iraq, Afghanistan, and Pakistan and, indeed, the lowest ratio in any asymmetric war in recent history.¹ The UN finds the typical ratio in such conflicts to be 3:1. The International Red Cross, over a longer time span, estimates 10:1. The historically low ratio in Gaza, ignored by Mr. Shulman, reflects Israel’s unprecedented precautions to minimize collateral damage to civilians.

Leading independent military experts (Anthony Cordesman of the Center for Strategic and International Studies and Colonel Richard Kemp, the former UK commander in Afghanistan) attest to such safeguards. Colonel Kemp testified before the UN Human Rights Commission that Israel “took more precautions to safeguard civilians than any other army in the history of warfare.” Those military experts and the historically low civilian-to-combatant ratio undermine Mr. Shulman’s claim about lax rules of engagement.

Mr. Shulman also raises “moral” questions about the Gaza conflict but appears to wear blinders. Hamas, acting as Iran’s proxy, started the conflict by unprovoked rocket attacks against thousands of innocent Israeli citizens, attacks that Mr. Shulman himself condemns as war crimes. Hamas then chose to place its troops and rockets in densely populated residential areas, thereby putting Gaza’s citizens in harm’s way. It used the civilian population as a giant human shield. Those facts contradict Mr. Shulman’s notion that the scales of morality tip in favor of Iran and Hamas.

Goldstone was right in retracting war crime charges against Israel. Mr. Shulman should do the same.

Stuart Robinowitz
New York City

David Shulman replies:

It is one thing to say that the Israeli army does not deliberately target civilians as a matter of policy, quite another to exonerate that army from its direct responsibility for the deaths of at least 759 civilians in Gaza during the Cast Lead Operation (according to the reliable figures of B’Tselem). Invidious comparisons to Afghanistan, Iraq, and Pakistan are of no help here. Hamas has its own burden of guilt to bear—who would deny it?—but Israel must also be held responsible for its actions. This is not the first time (nor, I fear, will it be the last) that Israel fought in “asymmetrical” conditions, with an enemy surrounded by innocent civilians. There was, however, a time, not so long ago, when even the Israeli army itself would not have stooped to the kind of arguments Mr. Robinowitz insists on making.

Note the casual tone of Mr. Robinowitz’s footnote: “There were approximately 1,300 casualties in Gaza…. Hamas states that six hundred to seven hundred were combatants (Haaretz, November 9, 2010). The others were civilians.” Those “others” were not faceless cannon fodder. Each of them was a living, innocent human being who found himself or herself in an impossible situation. Some were killed by the widespread use of white phosphorus in Israeli bombardments, a war crime by any account. Others died because of the overwhelming firepower brought to bear on areas still populated by civilians. Some, no one knows how many, were killed because the rules of engagement were changed to allow for a zero-risk policy: soldiers were told to shoot at anything that moved in the occupied areas of northern Gaza.

Incidentally, the evidence to this effect is by no means “based on hearsay and anecdotes,” as Mr. Robinowitz says. The veterans’ organization Breaking the Silence has collected ample, irrefutable testimonies by many direct participants; they are available to anyone who takes the trouble to read or listen to them online.² The Israeli government’s change in the rules of engagement was also reported by responsible Israeli military correspondents writing in the Israeli press after the campaign. This change is not a trivial matter but a decision heavy with moral implication.

The same can be said of acts such as the slaughter of the eighty-eight (or more) policemen and police cadets at their passing-out ceremony in the opening minutes of the campaign. There is clear evidence that many innocents were killed in that attack, including families of the policemen and an indeterminate number of noncombatants among the cadets, including members of the Police Musical Band.

The principle is clear enough: soldiers are prohibited from killing innocents, and armies are forbidden to carry out policies that will certainly entail widespread civilian casualties. It is obvious that there are conditions of modern warfare in which moral quandaries come into play, and in which considerations of loss and gain will arise. Such considerations cannot rationalize or explain away evident crimes of war.

It is true that the Israeli army made an effort to clear the combat zone of civilians by distributing leaflets and making phone calls. It is also undeniable that many civilians remained in that zone throughout the campaign, as civilians—including the aged, the sick, and the bewildered—often do. Along with those who were killed, hundreds (at least) were wounded. As an Israeli, I am not comforted in the least by the relatively low civilian-to-combatant casualty ratio that Mr. Robinowitz, in the manner of other apologists, finds so impressive. Indeed, I find such self-righteous arguments horrific. I grieve for each of those civilian deaths, and I protest the active decisions taken by officers, officials, and individual soldiers in the critical moment of choice that made many of these deaths inevitable. I also lament the more general, sadly widespread moral obtuseness—especially in matters relating to Palestinians—that has overtaken Israeli society and its central institutions at this time.

To the Editors:

David Shulman responds well to Stuart Robinowitz’s defense of Israel’s conduct in the conflict in Gaza [“Goldstone and Gaza: An Exchange,” NYR, July 14]. Even so, it seems appropriate to add a few words with respect to Mr. Robinowitz’s misstatement of the laws of war. Noting that Judge Richard Goldstone has repudiated the conclusory finding in the Goldstone Report that civilians were intentionally targeted by Israel as a matter of policy, Robinowitz states, “Since war crimes require intent to injure civilians, it follows that all the charges against Israel collapse.” Not so.

First, as should be obvious, even if there was not an Israeli policy of intentionally killing civilians, if there was such a practice by some Israeli troops, those killings were war crimes. When American soldiers killed civilians intentionally at My Lai in Vietnam, they committed war crimes even though the United States did not have a policy of intentionally killing civilians.

Second, Protocol I additional to the Geneva Conventions of 1949, whose main provisions have acquired the status of customary international law that is binding in all circumstances, provides not only that an intentional attack on civilians is a war crime. It also states, in a separate paragraph, that “launching an indiscriminate attack…in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” is a war crime. The main body of the Goldstone Report (which Judge Goldstone has not repudiated) and the reports of Human Rights Watch and the Israeli organization B’Tselem make clear that if the heavy loss of civilian lives and the extensive damage to the civilian infrastructure in Gaza were not intentional, they were due to indiscriminate attacks. Similarly, these reports show that Hamas committed war crimes because its rockets were launched indiscriminately.

Third, the Protocol states that if either intentional or indiscriminate attacks were committed by troops, their superiors are culpable if they knew about such crimes and “if they did not take all feasible measures within their power to prevent or repress” them. Returning to the example of My Lai, that means that American leaders were culpable if they did not take adequate measures to try to prevent the massacre or to punish those who committed it. The same is true of Israeli leaders in the case of Gaza. They are culpable for the intentional or indiscriminate attacks on civilians if they did not do what they could to prevent such attacks or to punish those responsible.

In repudiating his earlier finding of an intentional policy of killing civilians, Judge Goldstone relied principally on the fact that Israel had opened a large number of investigations into the killing of civilians in Gaza. This is an approach that hews close to the spirit of the laws of war. Unfortunately, he failed to look further to discover that hardly anything has come of those investigations.

If the laws of war were as toothless as Mr. Robinowitz portrays them, they would be of little value in protecting civilians. Fortunately, that is not the case.

Aryeh Neier
New York City