Jimmy Carter Doesn’t Understand International Law

This week, former President Jimmy Carter was the lead author on a predictably misguided piece over at Foreign Policy, in which he and former U.N. High Commissioner for Human Rights Mary Robinson argue that in order for peace to prevail between Israel and the Palestinians, there must be a lifting of the blockade on Gaza, and the United States and European Union must recognize Hamas’s “legitimacy as a political actor.” It is replete with the usual nonsensical arguments we’ve come to expect from President Carter, and any United Nations leaders past or present, on this subject.

For those who understand that both Israel’s case for and methods for self-defense against Hamas forces in Gaza reside on solid legal ground (to say nothing of the moral imperative of a nation’s leadership to defend its citizens against indiscriminate rocket attacks on civilian populations), one paragraph is especially flawed (which is saying something):

There is never an excuse for deliberate attacks on civilians in conflict. These are war crimes. This is true for both sides. Hamas’s indiscriminate targeting of Israeli civilians is equally unacceptable. However, three Israeli civilians have been killed by Palestinian rockets, while an overwhelming majority of the 1,600 Palestinians killed have been civilians, including more than 330 children. The need for international judicial proceedings to investigate and end these violations of international law should be taken very seriously. (emphasis added)

One of the bedrock concepts of the international law of armed conflict (also known as the laws of war) is that of “proportionality.” This concept, intended to minimize harm to civilians during war, states that even if a target is deemed by commanders to be a necessary one from the perspective of gaining military advantage, an attack on that target is prohibited if the number of anticipated civilian casualties would be excessively disproportionate to the anticipated military advantage to be gained, as understood by the commander at that time. The laws of war do not say that civilian casualties ipso facto constitute war crimes. Comparing the number of civilian casualties between Israel and Hamas, and then deciding that Israel must be guilty of war crimes because Palestinian civilian casualties outnumber – even greatly outnumber – those of Israel, has no grounding in the laws of war.

As Prof. Laurie Blank at the Emory University School of Law notes in a recent piece for The Hill:

There is no doubt that, after an attack, the urge to simply count up the casualties and declare a war crime is powerful. However, an effects-based analysis — that is, using the numbers of casualties and extent of destruction to make legal claims — is simply incorrect. The law does not require that commanders be right all the time. The law also does not require perfect accuracy in targeting. But it does require extensive steps to protect civilians and reasonable judgments about the potential harm to civilians and the actions needed to minimize that harm.

Israel indeed undertakes such extensive steps to protect civilians, including by warning them, using several methods, to evacuate an area before the Israel Defense Forces engage. As Col. Richard Kemp, former Commander of British Forces in Afghanistan, recently observed: “…The IDF has developed the most comprehensive and sophisticated measures to minimize civilian casualties during attacks against legitimate military targets.”

In fact, Israeli targeting procedures go above and beyond what proportionality doctrine under international law requires, though tragically civilian casualties can still occur. Col. Kemp goes on:

In the last few days IDF pilots have aborted many missions because civilians remained in the target area…

…IDF commanders say they never intentionally fire at targets where uninvolved civilians are present,a policy that goes much further than the Geneva Conventions demand. This policy has been confirmed to me by foot soldiers on the ground and F16 pilots carrying out strikes into Gaza.

But mistakes happen. Surveillance and intelligence can never be foolproof. There have been reports of Hamas forcing civilians back in once buildings have been evacuated. There is sometimes unexpected fallout from attacks, for example when an adjacent building containing civilians collapses, often caused by secondary explosions resulting from Hamas’s own munitions.

Errors can be made in interpretation of imagery, passage of information and inputting of target data. We don’t yet know what happened to the four boys tragically killed on a Gaza beach; it is not credible that they were identified as children and then deliberately killed.

Weapons guidance systems sometimes malfunction and bombs, bullets or missiles can land where they are not supposed to. Even the most hi-tech communications systems can fail at the critical moment.

In light of Israel’s own rules of engagement, then, there is real reason to doubt that the IDF is firing on military targets knowing that Palestinian civilians will be killed.

But even assuming for a moment that the IDF is not adhering to its own rules of engagement, the real question under international law’s proportionality doctrine, as commonly understood, is not whether Palestinian civilian casualties exceed those of Israel, but rather whether IDF commanders are reasonably judging that anticipated loss of Palestinian civilian life – regrettable though it may be – is outweighed by the military advantage expected to be gained from hitting the target.

It’s critical to note here that Hamas makes calculated decisions as a matter of strategy to embed its operatives, weaponry, tunnel networks, and other terrorist infrastructure amongst Gaza’s civilian population and structures, including United Nations facilities – all of which, if left untouched, would pose serious risks to Israel’s population. At the same time, Hamas orders Gaza residents to ignore IDF warnings and stay within the line of fire, extolling the benefits of Palestinian civilian casualties both for their deterrence and propaganda value.

Palestinian civilian casualties are not evidence of Israeli “war crimes”, but rather the result of Hamas’s intentional disregard for the laws of war. Carter’s call for “international judicial proceedings to investigate and end these [Israeli so-called] violations of international law” suggests he is ignorant (at best) of what those laws require of Israel under these circumstances, and indeed of Israel’s own exhaustive attempts to go above and beyond those requirements.

For an insightful read on the legal and geostrategic consequences of reading the laws of war to benefit whichever side can pile up the most bodies by putting their own civilians in harm’s way, see Prof. Kenneth Anderson’s recent post at the Volokh Conspiracy.

This post was revised at 9:50 am on Thursday, August 7th.