Monday, August 17, 2009

IDF Responds on Cast Lead

The IDF has released its own brief regarding the factual and legal issues raised by Operation Cast Lead in Gaza. I've read nothing but the executive summary; I thus neither endorse nor refute any specific claims regarding factual events or legal theories detailed therein.

But as is often the case with my blogging, I wanted to flag a few things that caught my eye (generally from other folks excerpting from the materials). First was this summary of the relevant standard regarding civilian damage and death in war situations:
[C]ivilian deaths and damage to property, even when considerable, do not necessarily mean that violations of international law as such have occurred. In particular, the principles of distinction and proportionality are only violated when there is an intention to target civilians or to target military objectives with the knowledge that it would cause harm to civilians that is excessive in relation to the anticipated military advantage.(I.10)

To my knowledge, this is an accurate synopsis of the doctrine; however, I welcome correction as to its doctrinal status (that is, not whether this is a good standard, but whether it is the actual, applied standard).

Second, apropos this post, we have a passage worthy of repetition:
The final core proposition that runs through this Paper is that, while the principles of customary international law may be “basic” and can be simply stated, they nevertheless must be applied with analytical rigor. Reports by non-governmental organisations and rapporteurs and committees acting under mandates from international organisations too often jump from reporting tragic incidents involving the death or injury of civilians during armed combat, to the assertion of sweeping conclusions within a matter of hours, days or weeks, that the reported casualties ipso facto demonstrate violations of international law, or even “war crimes.”[n. 14] Often, these leaps of logic bypass the most basic steps, such as identification of the specific legal obligation at issue and explanation of how it was violated. The depth of feeling in the face of civilian losses is understandable, but it does not excuse this rush to judgment. It is a fundamental precept of the rule of law that any legal inquiry about events relating to armed conflicts cannot assume the conclusion, particularly a conclusion that — as shown below — proper application of the law does not sustain.[n. 15]

14 See, e.g., Report, Operation Cast Lead: 22 Days of Death and Destruction, Amnesty International (29 June 2009); Report of the Independent Fact Finding Committee on Gaza, No Safe Place, League of Arab States (30 April 2009); Report, Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, Human Rights Watch (March 2009).

15 Cf. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 14 June 2000 (hereafter “NATO Bombings, Final Report to the ICTY Prosecutor”), ¶ 51, available at (“[m]uch of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed.” Yet in truth, “[c]ollateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons.”). (III.34)

That was found from this analysis; the first excerpt (and the document itself) was found from Harry's Place.

Again, this doesn't mean that no violations occurred -- as the brief itself is quite clear enough, investigations (including criminal ones) are ongoing, and it would not surprise me in the slightest if some yielded prosecutions (or should do so). Nor am I suggesting we take every assertion of fact at face value. It should be taken for what it is: a very well researched, calmly argued, adversarial brief. That's not Divine Word. But it's not illegitimate babble either.

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