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Amnesty International: Verdict First, Evidence Later?:

On April 16, 2008, a shell from an Israeli army tank on a counter-terrorism mission in Gaza killed four civilians, including a Reuter's cameraman, Fadel Shan. On April 18th, well before Israel (or anyone else) could conduct a serious investigation, Amnesty International sent out a press release stating that "Fadel Shan appears to have been killed deliberately although he was a civilian taking no part in attacks on Israel's forces."

The Israeli army eventually conducted an investigation, which resulted in a seventeen-page report sent to Reuters, but not released to the public, or published by Reuters. A summary released by IDF states:

The facts show that the incident occurred against the backdrop of severe hostilities in the area. Earlier in the day three IDF soldiers had been killed in an attack and there was continuous mortar and anti-tank fire directed against IDF forces.

Moreover, the investigation shows that the tank shot was authorized after the tank crew reported identifying, from afar, suspicious figures wearing bulletproof vests and protective gear who were affixing a large unidentified black object to a tripod and aiming it at the tank. Only in retrospect was it discovered that the suspicious figures were Reuters cameramen wearing vests, and that the object mounted on a tripod was a camera and not an anti-tank missile or tripod-mounted mortar as the crew believed at the time.

Given the information at the time and the conditions in the field, the decision of the tank crew and the officers who authorized the shot was reasonable since the suspicious figures and suspected missile presented a clear and present danger to the lives of the IDF soldiers. The subsequent investigation revealed that the soldiers in the tank did not and could not have positively known that the object affixed to the tripod was not a weapon. Nor could they positively identify any markings on the clothing of the men to indicate that they were media personnel. There was no way for the tank crew to know that the suspicious figures were Reuters employees shooting footage and not militants shooting rockets.

Two days later, Amnesty International published an extremely tendentious press release, condemning what it calls the Israeli army's "scandalous" "so-called investigation" into the incident, and which includes what strikes me as a bizarre claim by Amnesty's Donatella Rovera that she is sufficiently familiar with the "sophisticated optical systems" in the Israeli tanks involved to say with some certainty that they must have seen "the clear TV-Press marking on both Fadel Shana's blue flak-jacket and the Reuter Mitsubishi Truck nearby" almost a mile away.

NGO Monitor points out that the army report wasn't released to Amnesty, and there is no indication in Amnesty's press release that anyone at Amnesty actually read the army report before condemning it as "scandalous" and a "so-called investigation." The press release itself suggests that Amnesty was indifferent to the content of the army report, because it was not the product of an independent investigation.

Early yesterday morning, I emailed Amnesty's press contact for the Middle East, Nicole Choueiry, and introduced myself as blogger for the Volokh Conspiracy. I forwarded the NGO Watch link, and asked if she "could confirm or deny that Amnesty wrote its press release without having access to the full report the Israeli army made on the incident?" I also asked "whether the basis for the underlying press release by Amnesty was a specific critique of the Israeli report on the incident, or was part of a general critique of Israel for not conducting independent investigations of civilian deaths in Gaza." (In other words, would Amnesty automatically condemn any report, no matter how thorough, issued by the Israeli army, because it was issued by the Israeli army).

A few hours later Ms. Choueiry responded that she would get back to me with a detailed response shortly. I haven't heard back, but will let readers know if and when I do.

UPDATE: Soccer dad has much more on the broader story, including a link to pictures of anti-tank weapons that look a heck of a lot like movie cameras, even close up.

And compare Amnesty's sole statement so far on journalists wounded and killed by Russian forces in Georgia: "'The fact that media workers have themselves become casualties, with over a dozen journalists killed or wounded during attacks by all sides, has compounded the problem of access to information. Journalists, as all other civilians in the conflict zone, must be protected from hostilities,' said Nicola Duckworth." That's it.

Tracy Johnson (www):
Well, if the incident got "green helmet guy", it may have been justified.
8.22.2008 1:31pm
Anthony A (mail):
Reuters is a legitimate target for the Israeli military, as it conducts propaganda for Israel's enemies.
8.22.2008 1:38pm
Oren:

There was no way for the tank crew to know that the suspicious figures were Reuters employees shooting footage and not militants shooting rockets.

Aside from the blue vests and blue van, no, I suppose not.
8.22.2008 1:40pm
Crunchy Frog:

(In other words, would Amnesty automatically condemn any report, no matter how thorough, issued by the Israeli army, because it was issued by the Israeli army).

In unrelated news, the sun rose in the east this morning.
8.22.2008 1:41pm
Happyshooter:
This is sounding a lot like the Bagdad Hotel story, where those in the TV business and their buddies assume some sort of magis ability to tell the guys in body armor pointing large object at them are TV crews and not an anti-armor team.

On the basis of the report, it sounds like a good decision on the part of the tank crew/officer. Of course, any action on the battlefield that does not involve the deliberate non-justified shooting of a non-combatant or non-justified destruction of a protected place is a legal action.

I am a bit shocked that a commissioned officer was required to give the order to the tank crew. I thought that sort of stupid standing order was only imposed on US troops.
8.22.2008 1:44pm
Oren:

some sort of magi[c] ability to tell the guys in body armor pointing large object at them are TV crews and not an anti-armor team. discern the color blue.

We sure do ask a lot of those crews!
8.22.2008 1:47pm
ObeliskToucher:

Aside from the blue vests and blue van, no, I suppose not.

I hadn't seen the announcement about Hamas having adopted an official uniform for its fighters, allowing them to be clearly distinguished from civilians and journalists. Good for them -- it'll help prevent incidents like this from occurring in the future.
8.22.2008 1:50pm
Oren:

The subsequent investigation revealed that the soldiers in the tank did not and could not have positively known that the object affixed to the tripod was not a weapon.

That's an ass-backwards way to look at it. Anyone can be shot unless the soldiers can positively identify their surroundings as non-weapon? By that logic, a soldier could walk into a market with their eyes closed and spray automatic weapons fire in all directions and it would be OK because they had not, at the time of firing, positively identified that the people around them were not pointing weapons at them.
8.22.2008 1:51pm
Oren:
I hadn't seen the announcement about Hamas having adopted an official uniform for its fighters, allowing them to be clearly distinguished from civilians and journalists.
It's a sad commentary on your moral compass when you take guidance on these issues from the likes of Hamas. I hear Osama bin Laden is teaching a killer course in political science this fall semester too!
8.22.2008 1:53pm
ObeliskToucher:
Oren, the video from this incident is still available on Reuters' website (link) -- I don't know where you picked up the "blue vest and blue van" meme, but the video of the aftermath clearly shows that the photographer was dressed in a white shirt and dark slacks -- and I don't see a blue van anywhere in sight...
8.22.2008 1:56pm
DavidBernstein (mail):
Oren, there was someone aiming what appeared to be a missile launcher at them. Are you seriously arguing that the fact that the person at the launch was wearing a blue flak jacket would be reason not to fire? Even Amnesty's press release doesn't go that far, but claims that the press marking could be seen.

Anyway, you are making the same error as Amnesty apparently is: maybe the report is a whitewash, but unless you actually see it, how do you know?
8.22.2008 1:59pm
ObeliskToucher:
Oren:

It's a sad commentary on your moral compass...

It's called sarcasm, Oren... and as far as my moral compass is concerned, I refer you to the text immediately below the comment box...

Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like)
8.22.2008 1:59pm
Houston Lawyer:
There's got to be some lesson in here about not pointing things at tanks during a gun battle. I'm also sure that terrorists never pretend to be something harmless.
8.22.2008 2:04pm
Humble Law Student (mail) (www):
I'm just curious what brought this up now.
8.22.2008 2:05pm
SeaLawyer:

That's an ass-backwards way to look at it. Anyone can be shot unless the soldiers can positively identify their surroundings as non-weapon? By that logic, a soldier could walk into a market with their eyes closed and spray automatic weapons fire in all directions and it would be OK because they had not, at the time of firing, positively identified that the people around them were not pointing weapons at them.


I don't think you understand what happened. There was a firefight going on and the tank crew had what looked like an anti-tank missile pointed at them. They had no way of knowing that it was a camera.
8.22.2008 2:07pm
DavidBernstein (mail):
Hmm, if you look at seconds 21-35 or so on the video, the "clear press markings" on the vehicle are not apparent (the drivers side doesn't seem to have any), the victims are standing quite a few feet from the vehicle, and the tripod has mysteriously disappeared.
8.22.2008 2:08pm
DavidBernstein (mail):
HLS, I'm on NGO Watch's email list, and I read their report Wednesday morning. NGO Watch has its own agenda, so I was wondering whether it was going too far in claiming that Amnesty never saw the report before condemning it, or if Amnesty could actually be that overtly and laughably biased.
8.22.2008 2:10pm
PLR:
On April 18th, well before Israel (or anyone else) could conduct a serious investigation, Amnesty International sent out a press release stating that "Fadel Shan appears to have been killed deliberately although he was a civilian taking no part in attacks on Israel’s forces."

That same press release called for an Israeli investigation. And the quoted sentence is accurate. The tank operator identified Shan as a target and shot him deliberately. That does not preclude a subsequent finding that the deliberate shooting involved a case of mistaken identity.
8.22.2008 2:13pm
bornyesterday (mail) (www):
We have a hard enough time not hitting our own troops while in combat. I believe the press was the intentional target of an attack on obvious non-combatants as much as I believe that Pat Tillman was intentionally targeted so that the US Army would have a martyr of their own.
8.22.2008 2:14pm
A. Zarkov (mail):
Oren:

"Aside from the blue vests and blue van, no, I suppose not."

What blue vests and van? How do you know he was wearing blue vest?

BTW I don't care if someone looks like the Pope, if he's threatening me, I going take action. Moreover, Hamas has and will pose as anything. Blame them for putting newsmen at risk.
8.22.2008 2:16pm
ejo:
the blue vests and vans the zionists tore from their dead bodies to justify the outrage. mention the word "jew" around some folks and the bile just starts to spew.
8.22.2008 2:26pm
Smallholder (mail) (www):
The lettering "TV" was on the front hood of the SUV. Is it possible that the angle between the vehicles made it impossible to see? This was a tragic accident, but no war crime.
8.22.2008 2:32pm
Alex C:
"Aside from the blue vests and blue van, no, I suppose not."

This assumes that the crew was using daylight optics instead of their thermal optics which have been standard equipment on the Merkava since the Mark IIB according to Wikipedia.

I can't speak for the IDF but US Army doctrine states that the thermals are the primary optical system in its tanks. Thermals perform as well as daylight optical systems in the day and out perform daylight optics in dusty conditions. The only down side is that thermal optics can't distinguish color.
8.22.2008 2:34pm
Hoosier:
"That's an ass-backwards way to look at it. Anyone can be shot unless the soldiers can positively identify their surroundings as non-weapon? By that logic, a soldier could walk into a market with their eyes closed and spray automatic weapons fire in all directions and it would be OK because they had not, at the time of firing, positively identified that the people around them were not pointing weapons at them."

Yes. And I can shoot winged monekys out of my ass. But I'm not sure that either is relevant to this case.
8.22.2008 2:35pm
Hoosier:
A Zarkov: "BTW I don't care if someone looks like the Pope, if he's threatening me, I going take action. "

But if he looks like the Pope, he looks like an elderly guy in a white cassock. So that's not particularly threatening.

Still, point taken. And we RC's love it when the Pope is used as the apotheosis of goodness in such hypothetical examples. I owe you a drink.
8.22.2008 2:37pm
DG:
There is a reason why the Geneva Convention demands that combatants wear uniforms. This is it. Hamas's failure to do so is a war crime and leads to civilian deaths. The penalty for being taken in civilian clothes as a soldier have always been quite draconian for exactly this reason. If you can't ell soldiers from civilians, civilians will die.
8.22.2008 2:38pm
rarango (mail):
Alex: your comment about thermal imagery is of course correct, but that is not something that most posters would know--of course, that doesnt stop them from expounding at length about color differentiation in tank gun sights. Another good reason to bring back the draft: so commenters can be better informed.

Sea Lawyer and Zarkov: You summarized it nicely. Unfortunately some events can be overparsed and over assumed.
8.22.2008 2:39pm
Kharn (mail):
Oren:
IIRC the vehicle was parked down in a wash between two hills, the cameraman and companions crested the ~15' hill and pointed their large commercial videocamera at the tank. Given they were in a squad-sized element, appeared by popping above a ridgeline and one was holding a large object on his shoulder pointed at the tank, they were acting exactly as an anti-tank group would conduct themselves during an attack.

Tank gun sights are also usually thermal scopes, so there's no ability to read text such as the 'Press' on their vests.

The deceased and the responders' videos are freely available on YouTube. If you watch the responders video you'll see how the van was located out of view of the tank.
8.22.2008 2:44pm
Richard Aubrey (mail):
Sometime back, a blog with military sentiment--I think it was Blackfive--ran six pics in good detail and full color of guys pointing something at you, the viewer, from about nine feet away. One was an anti-tank weapon and the other five were big news cameras.
Your mission, should you decide to accept it and thus embarrass AI, is to tell the difference in under, say, ten minutes.
8.22.2008 2:46pm
BGates:
Aside from the blue vests and blue van, no, I suppose not
I'm still not sure what color the sky is in Oren's world, but I watched the video, and I can say that our "white" appears to him as "blue".
8.22.2008 3:05pm
Some Law Talking Guy (mail):
Note, Oren ain't talking anymore. Some folks like to take creative liberties with fact issues.
8.22.2008 3:15pm
ejo:
yet none of the usual suspects here seem too bothered by folks not wearing uniforms and engaging in hostilities. as a matter of fact, they theorize, in a bass ackward way, that those folks need to have more rights, thus encouraging the conduct. of course, their position results in more incidents like this but, given their wattage, they can't make a connection.
8.22.2008 3:16pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 08/22/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
8.22.2008 3:24pm
Abandon:
DG wrote: "There is a reason why the Geneva Convention demands that combatants wear uniforms. This is it. Hamas's failure to do so is a war crime and leads to civilian deaths. The penalty for being taken in civilian clothes as a soldier have always been quite draconian for exactly this reason. If you can't ell soldiers from civilians, civilians will die."

Following such logic, I wonder if you would consider French resistants during WWII to be war criminals (you know, those who helped the allied invaders). How about the millions of Chinese civilian fighters who heroically fought the Japanese in their guerilla war? I endorse your logic, but I would certainly have not hoped these resistants to have been neutralized on Geneva conventional grounds. It's more or less a matter of choosing sides. The fact that I have more sympathy for la Résistance than the Hamas doesn't make the former more lawful according to Geneva's regulations.

Happyshooter wrote: "I am a bit shocked that a commissioned officer was required to give the order to the tank crew. I thought that sort of stupid standing order was only imposed on US troops."

Well, that's an opinion. A certain John Rambo would certainly opine the same way. But it is much the least we should expect from civilized countries to regulate their armymen to avoid unnecessary carnage as much as possible. I'm rather glad Israel chose to be counted as one of these countries. The contrary would expectedly make the Amnesty International personnel a lot busier and would make Israel's moral position harder to defend in regards to worldwide public opinion.
8.22.2008 3:58pm
wfjag:

Aside from the blue vests and blue van, no, I suppose not
I'm still not sure what color the sky is in Oren's world, but I watched the video, and I can say that our "white" appears to him as "blue".


Actually, it's not clear that Oren was taking liberties with the facts -- he may have been relying on Reuters, which appears to have taken liberties with the facts. See IDF clears troops in journalist's death (AP) (Aug. 13, 2008), reported on www.jpost.com :


Just before his death, Shana was filming an Israeli tank about one mile away, and his final video showed it firing a shell in his direction.

***

However, Reuters said the men's blue flak jackets, and their vehicle, were clearly marked as "press." Palestinian journalists in Gaza commonly wear the blue vests with English markings to avoid harm, while militants wear black or camouflage vests loaded with grenades or military equipment.


I guess from a mile away, Reuters can't tell white from blue.

This, however, leads to 3 other questions: (1) What is the status, if any, of a "blue vest" as a recognized international symbol?; (2) Were the reporters classified as "war correspondents" or "journalists" under international law?; and (3) Have organizations like Hezbolla or Hamas abused international symbols when fighting Isreal?

Qu. 1: I can't find any recognition for "blue vests." Blue helmets and blue berets are worn by UN peacekeeping troops, but, I know of no journalist symbol. Any one know the exact answer?

Qu. 2: As explained in the Royal Australian Air Force doctrinal manual "Operations Law For RAAF Commanders",
Chap. 10, Protection of Non-Combatants, at p. 83:


10.8 Journalists and War Correspondents: A distinction is drawn in Additional Protocol I between journalists and war correspondents. The latter are persons officially accompanying the armed forces in that capacity and are treated as accompanying civilians (see 10.7 above). Journalists who are not accredited war correspondents, even if present in an area of hostilities with the express permission of an armed force, are treated simply as civilians. If they participate in hostilities they lose their protected civilian status. Separate kinds of identity cards are issued to distinguish between war correspondents and journalists.


My understanding is that the IDF does not accredit "war correspondents" so (assuming the Israel is ratified Add'l Protocal 1), anyone out there is a "journalist." Under international law, civilians are not to be knowingly targeted, there's no requirement that it be determined with certainty that you're not firing at civilians. When a civilian exposes his/her self and is wounded or killed, the response is "Sorry about that. You should have tried harder to protect yourself."

Moreover, the jpost.com article also recounts that there was discussion between the tank crew and the officer who authorized it to fire about whether what they were seeing was an AT launcher, mortar tri-pod, or a camera. The tank crew could not determine which and was given permission to fire.

It appears that not only was AI wrong on the facts ("blue vest" vs white), it also appears to have ignored legal standards. There's no evidence of a knowing targeting of someone with civilian status.

Qu. 3: Yes, Hezbolla and Hamas have abused international symbols in their operations. Citing an AP story, in "There aren’t two sides to every story, just two sources" (July 20, 2008), Hostage News Network at http://forecasthighs.com/2008/07/20/hostage-news-network/ reported:


In the past, Hizbullah carried out the 2000 kidnapping in Mt. Dov using UN - marked vehicles. Hamas has used UNRWA-marked vehicles to transport wounded fighters. And there are many other reports of combatants abusing the symbols of neutral international aid organizations to dupe their enemies. I wonder if the organizations are sensing an increase in this tactic, and if they can do anything about it.


As UN symbols have been abused, the fact that the SUV had "TV" written on its hood seems small evidence that it wasn't being used in an attack (assuming that "TV" could be seen by the tank crew). And, it undercuts Reuters' assertion, quoted above, about the color of flak vests as being indicative of whether the wearer is a journalist.
8.22.2008 4:04pm
Don R:
Abandon,

By in large, the French resistance fighters wore armbands and carried their arms openly when engaged in hostilities in order to comply with the applicable laws of armed conflict. The fact Hamas makes no effort to comply with these requirements, as far as I know, does make the French resistance more lawful than Hamas.

The Chinese army was still functional during WWII and continued to fight the Japanese until the end of the war, although with mixed results as the Chinese were already divided into nationalist and communist factions. To the best of my knowledge, while impressive in number (200,000 - 300,000) Chinese guerillas were not well equipped and did not play a major role in operations against the Japanese. I do not know if they abided by the requirements to wear distinctive items and carry arms openly, but as the Japanese were not signatories to the relevent treaties of the day, the point was probably moot.

As far as rules of engagement for tank crews and other combat troops, current US ROEs clearly state troops are allowed to defend themselves against perceived threats. No requirements to take one for the "civilized team." I would assume the Israeli ROEs are similar.

Best wishes,
Don
8.22.2008 4:39pm
Oren:

Oren, there was someone aiming what appeared to be a missile launcher at them. Are you seriously arguing that the fact that the person at the launch was wearing a blue flak jacket would be reason not to fire? Even Amnesty's press release doesn't go that far, but claims that the press marking could be seen.

It is the duty of the person firing to ascertain the hostile intent of their target.

Now, the actual non-hostility of the target doesn't necessarily implicate the person firing. Perhaps it was in error, perhaps not. I don't know what the conclusion of the report was any more than you guys do. What I object to is the assertion in the IDF report that reverse the normal line of inquiry, placing an onus on the camera crew (and presumably everyone else) to positively identify themselves as friendlies instead of the usual requirement that soldiers ascertain hostile intent before firing.

It's called sarcasm, Oren... and as far as my moral compass is concerned, I refer you to the text immediately below the comment box...
First, I had no intent to insult anyone and I apologize if it came out that way.

I will not, however, apologize for the common sense assertion that Hamas has no power through any of their actions to absolve anyone of their normal moral duties. Nothing they do has can change an immoral act into a moral one (that would be an awesome power that I am unwilling to bestow on a lowly bunch of thugs).
8.22.2008 4:59pm
Oren:

I don't think you understand what happened. There was a firefight going on and the tank crew had what looked like an anti-tank missile pointed at them. They had no way of knowing that it was a camera.

Then they had no way of knowing it was an anti-tank missile. If they didn't ascertain hostile intent, they should not have fired.
8.22.2008 5:02pm
Oren:
Don, maybe you should read the US ROE (how did you old fogeys research classified documents before WikiLeaks?) before talking about what they require.

3.A.(5) (U) Positive Identification (PID) of all targets is required prior to engagement. PID is a reasonable certainty that the individual or object of attack is a legitimate military target in accordance with these ROE.


Now, it's eminently possible that they had reasonable certainty that the camera crew was hostile when they weren't. That's an acceptable error that does indeed happen during wartime.

On the other hand, it's entirely another thing to assert that the soldiers need not reasonable ascertain hostile intent in the first place.
8.22.2008 5:06pm
Oren:


Actually, it's not clear that Oren was taking liberties with the facts -- he may have been relying on Reuters, which appears to have taken liberties with the facts.

Of course that's true. If Reuters has substantially deceived me then I will have come to wrong conclusions.
8.22.2008 5:09pm
Oren:


My understanding is that the IDF does not accredit "war correspondents" so (assuming the Israel is ratified Add'l Protocal 1), anyone out there is a "journalist."

Wow, I better hop over to the nearest consulate to get my "unarmed civilian" accreditation post haste! Otherwise, I could be targeted for attack for lack of proper documentation of my non-hostile intent.
8.22.2008 5:13pm
ejo:
oren's just being silly-it would seem they were targeted for pointing something at a tank, not a lack of accreditation. anyone with an IQ over 46 would be able to tell the difference between the situations, except Oren and those like him. then again, of course, it was those wily zionists doing the shooting. they must have known something.
8.22.2008 5:33pm
ejo:
I do like the update. It shocks me that international peace and human rights groups have different standards for zionists (you know, jews) than anyone else.
8.22.2008 5:35pm
Oren:
ejo, is the standing US ROE in Iraq (quoted above, linked for full document) also "silly", or is it just silly when I say it? That's an important distinction.

Also, as I am a citizen of the State of Israel, accusing me of animus towards zionists is, well, curious.
8.22.2008 5:36pm
Don R:
Oren,

Having been in a legal combatant in a combat zone in 2004, I still have the ROE card I was given. What made you assume I was an old fogey relying on Wikipedia? :) If someone points a weapon at you, they have demonstrated hostile intent. That begs the question, could a reasonable person, in a combat zone under stressful conditions, mistake a shoulder carried video camera pointed in his direction for an anti-tank weapon? If you wait until the guy fires to find out, you are dead.

In re-reading my previous post, I do not believe I implied that soldiers did not need to ascertain hostile intent. Once again, hostile intent is demonstrated when someone points a weapon at you.

Don
8.22.2008 5:46pm
Oren:
Don, I'll concede I read your post uncharitably but I still take issue with the phrasing you used. Specifically:

As far as rules of engagement for tank crews and other combat troops, current US ROEs clearly state troops are allowed to defend themselves against perceived threats.

which is too weak. Troops are allowed to defend themselves once they have reasonable certainty that their target is a legitimate military objective. At least to my reading, that's quite a bit stronger than "perceived threat".

There is a much larger gap, however, between our mutual (if slightly quibble-worthy) understanding and the IDF press release that stated:

The subsequent investigation revealed that the soldiers in the tank did not and could not have positively known that the object affixed to the tripod was not a weapon. Nor could they positively identify any markings on the clothing of the men to indicate that they were media personnel.

One does not need to positively know that an object is not a weapon, nor does one need to positive identify markings that indicate that they are not hostiles.

This is essence of my claim that the standard of review is entirely backwards.
8.22.2008 6:07pm
Alex C:
Oren, short of waiting to be fired upon (something that tankers are trained not to do when it comes to ATGMs) what sort of standard would you hold a crew to in this situation?
8.22.2008 6:16pm
Mikey:

Troops are allowed to defend themselves once they have reasonable certainty that their target is a legitimate military objective. At least to my reading, that's quite a bit stronger than "perceived threat".


So, must one wait for the missile to impact the turret of the tank, or is it sufficient to note the missile has been fired?
8.22.2008 6:19pm
Oren:
Alex, "reasonable certainty that they are firing on a legitimate military target" (per the US Iraq ROE) seems like a good place to start.

You mistake my statement of principles for a judgment of fact. Perhaps under that standard, they had a reasonable certainty that their target was legit, perhaps not. I am not judging this incident, I'm voicing my objection to the notion, expressed in the IDF brief, that it is somehow incumbent upon all potential targets to display their non-hostility instead of incumbent upon the soldiers to ascertain positive hostility.
8.22.2008 6:25pm
Oren:

So, must one wait for the missile to impact the turret of the tank, or is it sufficient to note the missile has been fired?
Depends on whether you've stopped beating your wife regularly.
8.22.2008 6:27pm
Alex C:
What would be have to be done to "ascertain positive hostility" in this situation?

A group of people aiming something that could be easily mistaken for a weapon that can destroy the tank the crew is sitting in does not qualify?
8.22.2008 6:44pm
davod (mail):
"Following such logic, I wonder if you would consider French resistants during WWII to be war criminals (you know, those who helped the allied invaders)."

The rules are not different for people on our side. Fighting out of uniform makes you an unlawfull combatant. Doing so does not specifically make you a war criminal.

An interesting bit of trivia relates to the war crimes trial of German soldier and commando Otto Skorzeny. One of the charges was wearing US/British uniforms. He was found not guilty when The White Rabbit, a British intelligence agent (Sorry, I forget his real name, testified that he and his men wore German uniforms.
8.22.2008 6:45pm
Don R:
Oren,

And there is the difficulty in dealing with irregular threats. If the potential enemy is readily recognizable as a legal combatant the gray area shrinks considerably - in uniform = legitimate military target whether or not he carrying a weapon. If the potential adversary is not readily identifiable as a military member, he is not a legitimate target *unless* he is posing a credible threat. Simply carrying a weapon in civilian clothes would not make him a legitimate target for the application of lethal force. However, if he were to display hostile intent, for example by pointing a weapon, then he becomes a legitimate target. There is no obligation to wait until you come under fire to engage - once again, showing hostile intent makes one a legitmate military target.

The very last sentence of my ROE card reads "None of the rules above mean you can't defend yourself if threatened."

I may not be a reasonable person, but if someone points what looks to be an anti-tank missile launcher in my direction, I would take that to be a hostile action. Unless the IDF ROEs stated they could not fire unless fired upon, I would suggest the tank commander responded appropriately to a perceived threat.

We can disagree on standard of review, but it's quite a bit easier to do it from the safety of a desk than in the middle of an engagement where a second's delay could lead to the death of you and your crew, especially since one can very rarely be 100% sure of anything in a combat environment. We don't get paid to die for our country; we get paid to make the other guy die for his. :)

Don
8.22.2008 6:48pm
LM (mail):
Oren,

Isn't it possible that the tank soldiers did believe they saw a weapon, but the IDF synopsis focused(*) on refuting Reuters' factual allegation of what the soldiers should have seen, rather than explain that the soldiers' mental state satisfied the rules of engagement, a claim which probably would have been scornfully dismissed?


[(*)mistakenly, if one want to convince the readers of legal blogs]
8.22.2008 6:49pm
davod (mail):
"Simply carrying a weapon in civilian clothes would not make him a legitimate target for the application of lethal force." This has nothing to do with the Geneva Conventions.

This is like the ROE of some of the NATO forces operating in Afghanistan. If you show no hostile intent then we leave you alone. If you attack us then retreat we will not shoot at you while you are retreating.

I call bullshit on this type of ROE. If you are carrying weapons in civilian clothes in a no weapons area then you are fair game. Either surrender or be treated as hostile.

Some of the armed, non hostile, rat bags move through some NATO areas to fight in other areas.
8.22.2008 7:22pm
Oren:

However, if he were to display hostile intent, for example by pointing a weapon, then he becomes a legitimate target. There is no obligation to wait until you come under fire to engage - once again, showing hostile intent makes one a legitmate military target.

Agreed entirely.


I may not be a reasonable person, but if someone points what looks to be an anti-tank missile launcher in my direction, I would take that to be a hostile action. Unless the IDF ROEs stated they could not fire unless fired upon [edit: let's assume it's substantially similar to the US Iraw ROE], I would suggest the tank commander responded appropriately to a perceived threat.

Considering that virtually everything looks like an anti-tank missile, I think that's a bit too lenient. You might as well say that someone carrying anything is hostile intent. At distance, I'm sure a duffel bag looks just like a bag of explosives, a laptop like a anti-tank mine, a walking stick like a gun. In my reading, the phrase (directly quoted from the US ROE) "reasonably certain ..." requires more than a vague perception of threat -- it requires actual identification of the legitimacy of the target in question.

LM, yes that is possible. On the other hand "reasonably certain ..." implies that some level of care is needed when making a PID. If (and I'm starting to seriously doubt), the crew was wearing blue vests, as Reuters claims, that makes me less convinced that a legitimate PID was made.


I call bullshit on this type of ROE. If you are carrying weapons in civilian clothes in a no weapons area then you are fair game.
What about the poor saps that are carrying any manner of object that resembles a weapon?
8.22.2008 8:08pm
Oren:

What would be have to be done to "ascertain positive hostility" in this situation?

A group of people aiming something that could be easily mistaken for a weapon that can destroy the tank the crew is sitting in does not qualify?
That certainly qualifies. If, on the other hand (and I'm not asserting this is true in the instant case), those people are also wearing blue flak jackets (which, despite the hemming and hawing here, are considered an unofficial designation) or are standing next to a vehicle marked as press, then it becomes a little less reasonable.
8.22.2008 8:10pm
wfjag:
Oren:

You misunderstand what a ROE (now called RUF -- Rules on Use of Force) is. It is not a legal standard. Legal standards are incorporated into ROEs/RUFs, but also policy (domestic and diplomatic concerns), logistics and other factors are incorporated, so that ROEs/RUFs are more restrictive than the legal standards. Whether the Iraq ROE's requirement for PID before engaging is to be read the way you or the way Don contends*, is not relevant to judging the IDF's actions as to whether international legal standards were violated.

AI accused the IDF of:


"Yesterday’s strikes, which the Israeli army launched after the killing of three soldiers in combat, appear to have been carried out with disregard for civilian life,” said Amnesty International. "There seems to be a culture of impunity within the Israeli forces which is contributing to routine use of reckless and disproportionate force."

[and]

"Fadel Shana appears to have been killed deliberately although he was a civilian taking no part in attacks on Israel’s forces," said Amnesty International.


Those are allegations of violations of the 4th Geneva Convention, “CONVENTION (IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR” (12 August 1949), to which Israel is a party, and which as a party, it is obligated to enforce. As with most legal standards, the burden is on the accuser to prove the allegation and not on the accused to disprove it.

Here, without even reviewing the report, AI accused the IDF of these violations.

Unlike you, I’m not Israeli, so I don’t have an emotional stake in condemning or exonerating the IDF. However, given the seriousness of AI’s allegations and its failure to have reviewed the IDF’s investigation report (and, in fact, AI’s apparent rush to judgment in its press release 2 days after the incident), Professor Bernstein’s title to the post “AMNESTY INTERNATIONAL: VERDICT FIRST, EVIDENCE LATER?” looks pretty accurate (except for the question mark).


* Disclosure: Having helped write ROEs, and having had to apply the "hostile intent" standard, I believe that Don's interpretation shows a lot better understanding of what the ROEs mean and how they are applied.


Oh -- and as for you getting "documentation" as a civilian in a combat zone -- that's not especially relevant. You are presumed to be a civilian -- and civilians are also presumed to be interested in not being wounded or killed. Accordingly, civilians are expected to keep their heads and asses under cover. People who don't, are taking actions the are inconsistent with the presumption. So, if you're around when folks are shooting and for some reason decide to stick your head out, and get hit, the response is "Sorry about that. You should have tried harder to protect yourself." So, instead of worrying about your documentation, I suggest that you worry about keeping your head and ass under cover and remembering that pointing anything, including a camera, at Soldiers involved in combat operations is -- unwise.
8.22.2008 8:22pm
David Schwartz (mail):
Oren:
The subsequent investigation revealed that the soldiers in the tank did not and could not have positively known that the object affixed to the tripod was not a weapon.

That's an ass-backwards way to look at it. Anyone can be shot unless the soldiers can positively identify their surroundings as non-weapon? By that logic, a soldier could walk into a market with their eyes closed and spray automatic weapons fire in all directions and it would be OK because they had not, at the time of firing, positively identified that the people around them were not pointing weapons at them.

You are assuming this statement was meant to defend the actions of the tank crew. It was not meant to do that at all. It was simply meant to refute the claim that the cameraman was targeted by a crew that must have known he was a cameraman. It does that, and it's factually true.
8.22.2008 8:33pm
Oren:
wfjag, first off, thanks for the input from someone that has experience with ROEs and how they are drafted. I'm curious as the choice of words, though. Why "reasonably certainty" and not "reasonably belief"? I ascribe to the latter phrase the meaning that Don ascribes (a perceived threat) whereas I ascribe to the former something more - a positive identification that the target is, in fact and not just perception, engaged in hostile actions. I'm probably wrong in the way that I parse this but, if the intent of the drafters of the US ROE was as you and Don claim, it seems like a very odd choice of words.

As to the substantive matters of international law, you are correct. I did not claim (and specifically disclaim) that the Israeli actions were in violation of the various GCs. This is not a wrong for which there is a legal remedy. Nor do I endorse AIs hyperbolic rhetoric about the situation.

What I do object to is the attempt by the IDF, Don and now you to phrase the question in terms of the obligations of unarmed civilians. It is the military that has an obligation to make PIDs and to avoid collateral civilian damage, not to pontificate as to what civilian behavior is proper. Many civilians will chose to take cover but I am very grateful for those that place their lives in additional risk in order to commit the facts to film. Those civilians are due just as much consideration as anyone else (perhaps more, due to their immense public service).

Now that I write that, I see that I am emotionally invested in a deeper normative value -- one that considers the filming of important events to be a good for all of humanity. Doubly so for film, which has been proven to have a much stronger effect than mere reporting and also has the advantage of being much hard to refute. Considering the unlimited ability of governments to shamelessly prevaricate, especially under the fog of war, objective records are the last resort for those of us that want to know the real facts.
8.22.2008 9:13pm
Oren:
I should add, thanks to wfjag, for helping me figure out my own motivation.
8.22.2008 9:17pm
TDPerkins (mail):

Considering that virtually everything looks like an anti-tank missile, I think that's a bit too lenient. You might as well say that someone carrying anything is hostile intent.


Oren, you are making a ludicrously tendentious argument here. I handle a great many things in the course of a day, and none of them look like a anti-tank weapon. That's true of everyone I saw today, with the possible exception of a surveyor. His laser transit might be a target designator, although not many of them are bright orange.

And even then, it is unlikely he would be shot at unless he happened to be in the middle of a firefight and not taking cover, but instead training his transit on a tank.

And I am puzzled by your presumption the Israelis should have been able to see any blue color to a vest or the markings on van.

From where does that presumption of yours spring?

And for that matter, if Hamas did paint a laser designator orange, and gave the operator an orange mesh vest and a hard hat, should the Israelis wait until their tanks start blowing up to shoot at him?

Positive Identification does not mean "beyond a reasonable shadow of a doubt". It means, "Yes, I've positively indentified those figures are soon to be dead idiots who aren't keeping their heads down in a war but are instead operating something ATGM sized and shaped has an attached optical component and they are training it upon the tank in which I am sitting."

"On the way."

Yours, TDP, ml, msl, &pfpp
8.22.2008 9:19pm
TDPerkins (mail):

What I do object to is the attempt by the IDF, Don and now you to phrase the question in terms of the obligations of unarmed civilians. It is the military that has an obligation to make PIDs and to avoid collateral civilian damage, not to pontificate as to what civilian behavior is proper.


And you need to make several points stick:
1) Why on earth do imagine it is inappropriate for the obligations of civilians do loom large in this issue?
2) Why are on earth do imagine a PID was not made?
3) Why on earth do imagine a military has nothing of import to say to civilians as to how they should behave--during a war on the actual battlefield?!

Really, I'm wondering if you are daft.

Yours, TDP, ml, msl, &pfpp
8.22.2008 9:30pm
Oren:
Do you really want me to answer your questions or are you just trolling? Bottom line: civilians are presumed protected.
8.22.2008 10:28pm
TDPerkins (mail):
Yes. I really want you to answer them.

Civilians are intended to be protected if they act like civilians--that means they hide when the shooting starts. If they act like combatants, they are fair game.

These civilians appeared quite reasonably to be combatants, so killing them was fair dinkum.

Yours, TDP, ml, msl, &pfpp
8.22.2008 10:36pm
Elliot123 (mail):
Perhaps reporters should stay out of fire fights?
8.22.2008 10:42pm
TDPerkins (mail):
If they don't try harder (and successfully) to look like reporter's instead of an ATGM team, they should realize they are likely to be targeted, and justly so.

Yours, TDP, ml, msl, &pfpp
8.22.2008 10:47pm
userx (mail):
I'd like to add something to what wfjag said about ROE that the lawyers here need to remember when discussing this. The ROE need to be written so that our 18-21 year old's understand that they can still defend themselves and their mates while also keeping them from engaging when it is inappropriate. Since most non-lawyers do not parse words in the manner folks here do, the ROE language will not be as "lawyerly" as you may expect. Writing good ROE is almost as difficult as attempting to understand and comply with them without getting dead or in jail, so my hat is off to wfjag for his work.
8.23.2008 6:49am
markm (mail):
Oren: What color of clothes or markings the journalists were wearing is irrelevant because Hamas has often abused any marking the Israelis respected.
8.23.2008 8:57am
Oren:
markm, you have it backwards -- it's Hamas' actions that are irrelevant to the substantial moral duty of soldiers to make a PID.
8.23.2008 10:47am
Oren:

Oren, you are making a ludicrously tendentious argument here. I handle a great many things in the course of a day, and none of them look like a anti-tank weapon.

Of course. But a lot of things that you carry around in a day could be seen, from 1-2 miles through a thermal scope, as some sort of weapon, which, according to your logic, is sufficient to establish hostile intent. Carrying a laptop -- that's a anti-tank mine, carrying some apples, those are grenades, carrying a cane, that's a rifle.

And I am puzzled by your presumption the Israelis should have been able to see any blue color to a vest or the markings on van. From where does that presumption of yours spring?
I'm not presuming that they should have seen the markings, I'm implying that they had the obligation to look for them (early snark notwithstanding).


And for that matter, if Hamas did paint a laser designator orange, and gave the operator an orange mesh vest and a hard hat, should the Israelis wait until their tanks start blowing up to shoot at him?

They should follow the same standard they have been following: establishing with reasonable certainty the hostile intent of their target before firing.

Positive Identification does not mean "beyond a reasonable shadow of a doubt".
It also doesn't mean "vague perceived threat" - it requires something more, to wit "reasonable certainty".
8.23.2008 10:57am
TDPerkins (mail):

markm, you have it backwards -- it's Hamas' actions that are irrelevant to the substantial moral duty of soldiers to make a PID.


That is an invalid assertion, not the least of the invalidating reasons is that the IDF is reacting to Hamas.

And as I mentioned, they made a PID, and not an unreasonable one.

Yours, TDP, ml, msl, &pfpp
8.23.2008 10:57am
Oren:

And you need to make several points stick:
1) Why on earth do imagine it is inappropriate for the obligations of civilians do loom large in this issue?
2) Why are on earth do imagine a PID was not made?
3) Why on earth do imagine a military has nothing of import to say to civilians as to how they should behave--during a war on the actual battlefield?!

(1) Because they are the protected class here, not the soldiers. We have a moral duty not to harm non-combatants, period.
(2) Perhaps, in the instant case, a PID was actually made. The standard that you seem to apply, however, makes PID as easy as seeing a figure manipulating *something* and concluding without any further evidence that they are hostile.
(3) See point (1). The military is obligated to protect civilians, not vice versa.

The only obligation of the civilians is not to hinder the military operation or help the combatants (thus losing their civilian status).
8.23.2008 10:59am
Oren:

Civilians are intended to be protected if they act like civilians--that means they hide when the shooting starts.

Filming the proceedings of a battle are a quintessentially civilian thing for the press to do.

Yours, Oren, WTF, BBQ, 25-25-HIKE!
8.23.2008 11:01am
Oren:

Perhaps reporters should stay out of fire fights?

That would be most unfortunate for the rest of the world that is deprived of an objective record of the war.
8.23.2008 11:01am
Oren:

If they don't try harder (and successfully) to look like reporter's instead of an ATGM team, they should realize they are likely to be targeted, and justly so.

It's not incumbent on the civilians to broadcast their non-hostility, it's incumbent on the soldiers to establish the legitimacy of their targets. I'm not saying that mistakes don't happen (and the instant case might be such a good-faith mistake), but to blame the civilian for not "trying harder" is perverse beyond words.

Yours, Oren, 342, 235, 432, 65
8.23.2008 11:04am
Oren:

That is an invalid assertion, not the least of the invalidating reasons is that the IDF is reacting to Hamas.

Person A has a moral obligation to person B. Explain to me how person C can do anything to release person A from that obligation.

Perhaps Hamas is now the father-confessor to the IDF, absolving them of their sins. I didn't know they were Catholic though. . .
8.23.2008 11:05am
Oren:
And as I mentioned, they made a PID, and not an unreasonable one.
Perhaps, perhaps not. If, accepting Reuter's (possible untrue) statement that they were wearing blue vests and near a van clearly marked as press, then the PID becomes a lot more suspect.
8.23.2008 11:08am
TDPerkins (mail):

But a lot of things that you carry around in a day could be seen, from 1-2 miles through a thermal scope, as some sort of weapon, which, according to your logic, is sufficient to establish hostile intent.


If any laptops looked like a mine and they were burying the laptop in the ground, then even though it was a laptop, it would be a lawful killing.


carrying a cane, that's a rifle.


No canes I've ever seen could be confused with a rifle, neither are there any grenades you can bite into. Also, if in the middle of a firefight and you threw an apple at a soldier, you could be quite lawfully killed in the confusion.


I'm implying that they had the obligation to look for them (early snark notwithstanding).


No one is saying they didn't have an obligation to look for them, and what you seem to be claiming is that because the markings ostensibly existed, the IDF had an obligation to look until it found them and then hold fire. Not so.


They should follow the same standard they have been following: establishing with reasonable certainty the hostile intent of their target before firing.


So you admit they were following a proper standard of PID when they killed the camera crew?


It also doesn't mean "vague perceived threat" - it requires something more, to wit "reasonable certainty".


It wasn't a vague threat, it was a clear and present danger against the existence of the tank crew.

Yours, TDP, ml, msl, &pfpp
8.23.2008 11:10am
TDPerkins (mail):

It's not incumbent on the civilians to broadcast their non-hostility


Yes. It is. Deliberately creating confusion as to who is a combatant is a war crime, and creating the ambiguity through negligence is suicidally stupid.

As the camera crew discovered.

Yours, TDP, ml, msl, &pfpp
8.23.2008 11:15am
Oren:
Well, if you insist on reading the moral obligations in such a way that diminishes the protected status of civilians, I don't see us making any progress. Civilians are protected, period.

You can make a mistake but the standard that you are applying is so far short of "reasonable certainty" that it comes out to more of a "shoot them all, let god decide" than any cogent moral standard.
8.23.2008 11:21am
Richard Aubrey (mail):
The Palestinians deliberately confuse the issue by using civilian and NGO facilities as cover. Recall the faked missile attack on the Red Cross ambulance which got busted a couple of years ago. The Red Cross, finding that the high-res pic of the supposedly jew-damaged ambulance on their website provided far too much detail for debunkers, took it down "to maintain the moral high ground". So the civilians and NGOs are not entirely without guilt, either.

Such deliberate confusion puts civilians at risk, which is good, becuse if the IDF kills them, it's good for the Palis. It should go without saying that if the Palis kill Jewish civilians, it's a marvelous victory.

If we turn this around, and find a Pali murderer making a perfect PID that the invididual in his sights is a four-year old Jewish girl, unarmed, looking the other way, and going about her lawful business in a school yard, and blowing her sweet little ass away, the AI and its VC allies are nowhere to be found. Their famous moral acuity is revealed to be less than that of a rabid weasel.

If it weren't for the fact that we have company, I think I'd go puke.
8.23.2008 11:44am
Oren:
RA, I have never once hesitated to condemn Hamas and their outright brutish tactics. As I said earlier, however, my moral responsibilities are entirely independent of their action -- I do not grant them power to absolve me of my sins.
8.23.2008 11:52am
TDPerkins (mail):

Well, if you insist on reading the moral obligations in such a way that diminishes the protected status of civilians, I don't see us making any progress. Civilians are protected, period.


Civilians are protected, certainly. Civilians are nevertheless under an obligation to be appear to be civilians. The existence and observance of this obligation does not impair the protection of civilians, it facilitates it.


You can make a mistake but the standard that you are applying is so far short of "reasonable certainty" that it comes out to more of a "shoot them all, let god decide" than any cogent moral standard.


And the standard you are applying is equivalent to "beyond a reasonable shadow of a doubt", which is not the standard to be applied.

Also, your argument as to person A, B, and C is laughably inadequate. It is equally true that all persons there present are in the sole category A--persons on a battlefield--and that civilians are under an obligation not to appear to be combatants.

Yours, TDP, ml, msl, pfpp
8.23.2008 12:35pm
Oren:
So let me get this straight. The military (A) has a moral obligation to the innocent civilians (B). The parameters of that moral obligation, however, can somehow be changed by the actions of some third-party thugs (C) because (A) will suffer some negative consequence (inability to kill some disguised C's) by virtue of upholding his obligation to (B). That's some seriously moral magic you are working here.

Let's apply that reasoning to other situations. You (A) work at a restaurant and a man (B) starts choking. Since you know the Heimlich, you have a moral obligation to save his life. Your boss (C), however, says he will fire you if you save his life. Your claim that you are absolved of your moral responsibility to save his life because you will suffer negative consequences (firing) if you do your moral duty is contemptible. You are obligated to do the right thing, no more, no less.

That's a single example of the (I thought) universal principle that moral obligations between parties are not subject to modification by third parties.
8.23.2008 1:34pm
Elliot123 (mail):
"That would be most unfortunate for the rest of the world that is deprived of an objective record of the war."

Why would it be unfortunte if Reuters didn't have a picture of an Israeli tank for the evening news? What makes Reuters video an objective record?
8.23.2008 1:52pm
Don R:
Oren,

You are right, civilians are to be protected - consistent with military objectives - but that protection will not be absolute. We work to minimize collateral damage, but the standard is not "no collateral damage is ever allowed."

I am sure you would agree battlefields are inherently dangerous. Does the news crew assume no liability or risk by entering one voluntarily? It would appear you are arguing the safety of civilians in and around battlegrounds should be *the* prime consideration of troops engaged in combat no matter what the risk to those troops and with no regard to any military objective. If so, I believe you have unrealistic expectations.
8.23.2008 2:22pm
Oren:
Don, collateral damage is a red herring. We are not talking about hitting a legitimate military target and, in the process, harming civilians that happen to be nearby. We are talking about the process for determining what constitutes a legitimate military target.

Clearly the new crew assumes the risk (and ultimately pays the price) for the dangers of the war zone. That has no bearing on the obligations of the military. We all assume the risk of driving on the street, nobody would suggest that we don't still have the moral obligation not to hurt each other.

As far as military necessity goes, I have no doubts in my mind that, militarily, carpet bombing the entire West Bank/Gaza/Chechnya/... would be the quickest way to accomplish a military objective. Clearly those objectives are not more important than the obligation to protect civilians.

So I will concede that protection of civilians is not the *only* consideration but you'll have to concede that military objectives are not the *only* consideration either. Now that they are on equal footing, the question is how to balance them. I don't think it's unrealistic to assert that PID means more than "vague perceived threat".
8.23.2008 2:56pm
Oren:
Why would it be unfortunte if Reuters didn't have a picture of an Israeli tank for the evening news? What makes Reuters video an objective record?
First, the objective record serves more than the evening news -- it is a record for history.

Second, the film is objective by definition. It's not a personal recounting, it is a literal reproduction of the scene. Unless you are suggesting that Reuters is doctoring their film (ala the Iranians) . . .
8.23.2008 2:58pm
TDPerkins (mail):

So let me get this straight. The military (A) has a moral obligation to the innocent civilians (B). The parameters of that moral obligation, however, can somehow be changed by the actions of some third-party thugs (C) because (A) will suffer some negative consequence (inability to kill some disguised C's) by virtue of upholding his obligation to (B). That's some seriously moral magic you are working here.


The parameters are the same, it is merely that they are not what you think they are. The military has an obligation to take reasonable steps to refrain from harming non-combatants, their private property, and even public infrastructure. Your standard of reasonable is not reasonable. Because Hamas frequently abuses badges of neutrality, badges of neutrality reasonably lose their otherwise protective aspects. The rules of war do not require soldiers to take suicidal risks WRT to refraining from firing on such terribly suspicious persons.

Your insistence that civilians have no role in their own protection is simply counterfactual. Do you expect civilians to be able to continue their lives without interruption when they are in a war zone? If not, what interruptions are reasonable, and how does that not explode your premise?


Your boss (C), however, says he will fire you if you save his life. Your claim that you are absolved of your moral responsibility to save his life because you will suffer negative consequences (firing) if you do your moral duty is contemptible.


Aside from the fact it is a fantastically unlikely set of circumstances, your hypothetical hasn't even begun to correctly assign the likelihood and magnitude of the risks involved. If the boss was insane and holding a gun to your head you'd be approaching the situation.

What would you do then?

Yours, TDP, ml, msl, &pfpp
8.23.2008 3:28pm
Harry Eagar (mail):
rarango sez: 'Another good reason to bring back the draft: so commenters can be better informed.'

Amen.

As a newspaperman, I'd at least say, people who write about warfare should know something about warfare, whether they got that by being drafted or some other means.

And their editors should, too.

So many so conspicuously don't.
8.23.2008 3:46pm
Oren:

Because Hamas frequently abuses badges of neutrality, badges of neutrality reasonably lose their otherwise protective aspects.

Nope, sorry. Hamas has not been granted the power to determine what badges must be respected.
8.23.2008 4:30pm
Oren:

Your insistence that civilians have no role in their own protection is simply counterfactual. Do you expect civilians to be able to continue their lives without interruption when they are in a war zone? If not, what interruptions are reasonable, and how does that not explode your premise?

You conflate having a role in maintaining their skins with having an obligation not to harm that skin. They are both quite true.
8.23.2008 4:32pm
LM (mail):
Oren,

Putting this incident aside, what's the broader problem you seem to perceive with IDF practices? Does the command not share your (and my) moral standards? Do they share them, but turn a blind eye when they're violated? Why do you think whatever goes wrong does? And not that it matters, but do you know of an effective military that does better?
8.23.2008 4:35pm
Don R:
Oren,

Pardon my lack of precision. In my little world, civilian casualties are a subset of collateral damage.

At this point we are probably arguing past each other, as I thought I had made my point that someone showing hostile intent became a legitimate military target, despite lack of uniform or other feature identifying the person in question as a combatant. In this case, the hostile intent was pointing something that, to our reasonable tank commander, looked like an anti-tank missile.

No where in this discussion was carpet bombing defended as I doubt you will find too many people who would argue it would be the most effective way of dealing with a legitmate target as it fails the proportionality test with the weapons and delivery systems we have today. We in the USAF are still debating the necessity and effectiveness of carpet bombing in WWII.

I would disagree that military necessity and protection of civilians are on equal footing. I would suggest it is a sliding scale based on the value of the military target and the number of civilian casualties that would reasonably be expected if the target were attacked, based on the weapons needed to destroy the target. An attacking force may decide simply not to attack a low value target if the probability of large collateral damage outweighs the benefits or decide to attack a high value target even if the expected collateral damage is high - judgment calls by the people who designate targets and the JAGs who review them. In this case, our tank commander made a decision based on his perception that the threat. The threat in question was something that had the ability to destroy his tank - in his world, a high value target.

Don
8.23.2008 4:40pm
Oren:

If the boss was insane and holding a gun to your head you'd be approaching the situation.

What would you do then?

Save the guy's life, of course, that's the only course of action consistent with Jewish law and the only moral option. Consider the following story from the Talmud - a man comes to the Raba (a respected scholar) and tells him that he has been ordered to kill so-and-so by the governor on pain of death. Was he permitted to do so? That Raba responded "Rather than slay another person, you must permit yourself to be slain, for how do you know that your blood is redder than his, perhaps his blood is redder than yours?"

The interpretation is that one cannot place the value of one's own life higher than others around you. The same logic applies to conflicts between countries -- we cannot place our security or prosperity above those of our neighbors.

Of course self-defense is not just permissible, it's a commandment: "He who comes to kill you, hurry [imperative!] to kill him" which is in contrast that with exodus "slay not the innocent". Most of the scholars have historically interpreted the combination of a duty to kill your pursuers with a duty not to kill innocents as requiring precisely the sort of balancing test that I have advocated, even if it means a tactical disadvantage.

"A democracy that fights with one hand tied behind its back still retains the upper hand" ~~ Aaron Barak, Supreme Court Justice of Israel.
8.23.2008 4:46pm
TDPerkins (mail):

Nope, sorry. Hamas has not been granted the power to determine what badges must be respected.


Globally, no. Locally however, Hamas determines what badges of neutrality have meaning. What tragedies unfold from their misuse of them are on their heads, that is in fact the only way the badges of neutrality can be preserved to have meaning when they are respected, because that is what comports with what reasonable people will do.


Save the guy's life, of course, that's the only course of action consistent with Jewish law and the only moral option.


Wrong, in that you do not make explicit what must be done at that point in order to save the man's life--you must first kill your boss. If you must retreat from the situation to gain advantage to kill your boss, or during the time it takes to do it, the man dies in the meantime, the onus is on your boss/HAmas.

What ill befalls the innocent as the result of bad actors is assigned to the bad actors, else the concept of bad actor has no meaning.

I trust you are not prepared to ascribe such moral equivalence and vacuity to the Talmud?


Most of the scholars have historically interpreted the combination of a duty to kill your pursuers with a duty not to kill innocents as requiring precisely the sort of balancing test that I have advocated, even if it means a tactical disadvantage.


Except there is no evidence of balance in your test, which as I have mentioned amounts to a "beyond a reasonable shadow of a doubt" test. Your test creates not tactical disadvantage, but extinction.

And there's a boss to kill, or it doesn't stop at all.

Yours, TDP, ml, msl, &pfpp
8.23.2008 5:46pm
Oren:

If you must retreat from the situation to gain advantage to kill your boss, or during the time it takes to do it, the man dies in the meantime, the onus is on your boss/HAmas. What ill befalls the innocent as the result of bad actors is assigned to the bad actors, else the concept of bad actor has no meaning.

First of all, that's incorrect as a matter of technical Jewish law -- "saving a soul" ranks as a superior good to meting out justice. In fact, 'saving a soul' is a specific commandment that requires the violation of all the other commandments (with 3 exceptions not relevant here). It is not optional, given the choice between saving a life but letting the guilty go free or punishing the guilty at the cost of the life, Jews are commanded to do the former.

Hypothetical situation. An innocent hostage, your child let's say, has been taken hostage by robbers in a bank robbery. The police are considering storming the place, placing the hostage at risk. Can I, consistent with your understanding of "bad actor", make the following statements without contradiction:
(1) Any harm that results to innocents in the course of the raid is morally the fault of the robbers and not the police. They are the 'bad actors', the police are pure of motive.
(2) The police ought to do anything in their power to avoid creating a situation where the hostages are harmed, even though such harm would not be their fault.

If journalists (or medicals) are harmed by Hamas' use of false credentials then that adds to their long list of moral failings. Independently, we have a moral obligation to give deference to those credentials.
8.23.2008 6:02pm
Elliot123 (mail):
"First, the objective record serves more than the evening news -- it is a record for history."

So what? That may be important to you, but why should either of the opposing sides care?

Second, the film is objective by definition. It's not a personal recounting, it is a literal reproduction of the scene. Unless you are suggesting that Reuters is doctoring their film (ala the Iranians) . . .

Was the al Durrah TV2 video objective by definition? Was it a record of history?
8.23.2008 6:13pm
TDPerkins (mail):

First of all, that's incorrect as a matter of technical Jewish law -- "saving a soul" ranks as a superior good to meting out justice.


It escaped your notice I was not speaking of meting out justice, but of being best able to save the innocent man's life? You have have a strange blindness.

Additionally, I am not concerned with Jewish technical law, since it neither law in my jurisdiction, and if it as you say, neither is it just with sufficient frequency. For that matter, if you are correct, it lacks evidence it has been evolving in a just manner granted it's had 3000 some years to be worked on. What have the rabbis been doing, twiddling their thumbs?

And I do notice that instead of repairing in any fashion the inadequacies of the hypothetical you posed, instead you pose another. That's quite a hamhanded and almost dishonest dodge.


Independently, we have a moral obligation to give deference to those credentials.


Actually no. There is no such obligation in treaty nor any moral obligation to give deference to those credentials when they are unilaterally misused. That preserves their significance when they are not misused.

Yours, TDP, ml, msl, &pfpp
8.23.2008 7:23pm
Oren:

It escaped your notice I was not speaking of meting out justice, but of being best able to save the innocent man's life? You have have a strange blindness.

If killing the boss means letting the person choke, then those two goals are in conflict.

Also, you are not criticizing Jewish law for being unjust, you are criticizing the hierarchy of values that is required input. In the Jewish faith, there is no higher value than human life -- since you don't like it, don't join.

The two different hypothetical scenarios, by the way, were intended to make different points. The former was about the irrelevant of third party actions to moral obligation, even if it means negative consequences. The latter was about the general duty to save lives, even if one would not be morally culpable for the deaths.

Finally, your last paragraph is something of a mystery. It has a very "we must burn down the village to save it" feel -- global respect for civilians is accomplished by local disrespect for civilians.
8.23.2008 9:43pm
TDPerkins (mail):

If killing the boss means letting the person choke, then those two goals are in conflict.


You misunderstand. From my modification to your hypothetical, they only way to save the choking person is to first kill the boss, which magnitude of relative threats is more like that which faced the tank crew.


Also, you are not criticizing Jewish law for being unjust


Hey. You're the one who claimed to speak to what Jewish law is, and what you stated then was unjust. So yes, yes I am. If Jewish law is as you say it is, it is unjust in that instance. You used the words "Jewish technical law", and what you then said it meant is unjust. Perhaps you meant something else?


In the Jewish faith, there is no higher value than human life -- since you don't like it, don't join.


My, my. Someone's confused. You just said that self defense was also commanded, therefore reasonable gradations of relative worth and innocence ARE drawn in the Jewish faith. Since this is antithetical to you, perhaps you should decamp and seek a purer, harder path in life. Perhaps Bhuddism.

No?


The two different hypothetical scenarios, by the way, were intended to make different points. The former was about the irrelevant of third party actions to moral obligation, even if it means negative consequences.


Of course the actions of third parties do not change what is moral, but they can set the context of the question. It's the hypothetical which became actual for the tank crew, the one you keep dancing around. Suicide is not moral either, yet you demand it of the tank crew if it comes to that.


The latter was about the general duty to save lives, even if one would not be morally culpable for the deaths.


Agreed as far as that goes, but so unlike what the tank crew faced as to be without relevance here. In fact, as far as that went, you can't see the tank crew's dillema from there.

Global respect for civilians is best ensured when local violators of the neutrality badge concept are not seen to profit by it, so the practice of faking them is the more discouraged. Since that also results in the locals being relieved of the presence of the unlawful combatants the more quickly, it's probably better for them too.

But then improvement on all scores isn't pure enough for you. No. You need top score in a rule book that doesn't even exist.

Yours, TDP, ml, msl, &pfpp
8.23.2008 11:39pm
Richard Aubrey (mail):
Elliott.
Ref al Durrah:

Depends on what kind of history you want. Around here, that's not entirely clear.
8.24.2008 8:54am
Richard Aubrey (mail):
Which brings up the question: At what point can a supposedly journalistic enterprise lose its protection as journalists when it deliberately manufactures propaganda for one side?
8.24.2008 9:16am
LM (mail):
Richard, Their "protection" derives from being civilians, not journalists.
8.24.2008 6:09pm
Richard Aubrey (mail):
LM.
What is the practical--not legal--difference between what the French tv crew did ref al Durrah and what a uniformed combat cameraman would do?
Is it possible to revoke, by one's actions, one's civilian status?
Or can one do whatever, while thumbing the nose and yelling, "Nyah nyah, can't shoot back, I'm a civilian."?
At some point, if not necessarily this one, a civilian will have revoked his status by his actions, notwithstanding his other violations of the GC (uniform, assault directed at civilians, no command structure, etc.).
A civilian directly working for the other side forfeits his status when?
8.24.2008 7:30pm
LM (mail):
Richard,

Ask OBL. He apparently thinks the civilians in the twin towers were culpable, fair targets in his war against us. Unless you think everyone is fair game in war, an arguable proposition to some, then you draw the line somewhere. For purposes of U.S. Law, International Law and most moral and religious codes, the line is drawn at civilians. Period.

It may be that as a practical matter that rule is often observed in the breach, and victor's justice sweeps a lot of it under the rug. For all I know it may even be that scrupulous respect for that rule is fundamentally incompatible with winning. (For both those reasons I asked Oren these questions, which he hasn't answered.) And if that's true, it might also be true that human civilization could stand a reality check about some of the ideals we codify into criminal law. But unless you're willing to abandon the rule of law entirely, we can't just ignore the laws we don't like.
8.24.2008 8:34pm
Richard Aubrey (mail):
I'm not asking that we ignore laws we don't like. I'm asking if we've made the right laws.
Consider that the worst societies ignore such laws, which gives them an advantage in conflict. It might just be me, but I think having them win--which is to say, get to be in charge of more people--is a bad idea.
Some of the anti-war folks had the idea of spreading civilian immunity even further than it is today, with the purpose of making it easier for terrorists to hide among civilians. IOW, worse for civilians and civilized armies.
So, it appears that the concept of protected civilians is not written in stone and that one can lose it by virtue of one's actions.
The GC, in this view, makes things easier for those who defy it. You're supposed to wear a uniform if you're fighting, for example. If you don't...wrt the sentiments on this thread, you may be violating the GC but if you're fighting the US or Israel nobody cares. And, if you're not wearing a uniform while fighting, you are supposed to get extra protections. That is the take-away from this discussion.
If you don't like this conclusion, then there must be a line where civilians give up their protection by their volunaray actions. Or, as a practical matter, no civilians will have protection.

OBL was not alone in his view of the denizens of the WTC. A number of leftists thought so, too. American lefties, it should go without saying.
8.25.2008 6:50am
ejo:
people like Oren are quite tolerant of those who hide behind civilians and pursue "asymetric" warfare" by violating any rules of engagement. civilians die because of this tolerance but the supposed moral thinkers of the left don't really care. their hatred of all things american/israeli/western eclipses any level of decency.
8.25.2008 12:09pm
ejo:
any answer yet to why the international left has not mobilized against Russia in the same way they would against america or those pesky zionists?
8.25.2008 12:12pm
Richard Aubrey (mail):
None that we haven't known about for years.

Eason Jordan found it necessary to make up stories of journos targeted by US troops.
As did the head of the journalists' union.
Must be something about dead journalists--presuming the deaths were at the hands of the correct folks--that makes the lefties all warm and tingly. I mean, is politically useful.
8.25.2008 2:17pm
Oren:

people like Oren are quite tolerant of those who hide behind civilians and pursue "asymetric" warfare" by violating any rules of engagement.

You might as well grouse that people that negotiate with hostage takers are so tolerant of those that take hostages.

You guys are seemingly unable to come to grips that even those that are not morally culpable for deaths might be motivated by a desire to avoid those deaths. If my sister is taken hostage in a bank robber, I want the police to take whatever action is consistent with her continued survival. Full stop.
8.25.2008 7:50pm
Oren:

Is it possible to revoke, by one's actions, one's civilian status?

Yes, if one takes steps to materially aid or hinder combatants. For example unarmed spotters that direct combatants are fair game.
8.25.2008 7:52pm
Oren:

Consider that the worst societies ignore such laws, which gives them an advantage in conflict. It might just be me, but I think having them win--which is to say, get to be in charge of more people--is a bad idea.

This is a weak rationalization but then again, it's good to see that even Machiavelli still has a few followers. Every manner of horrific act imagined or carried out in the history of humanity can be justified by this simple premise.

In the long run, I have more faith than ejo in the premise of western civilization, which is, after all, just a set of ideals to live by. Those that seem to think we need to descend into barbarism to preserve civilization don't even understand what they are defending.
8.25.2008 8:02pm
Richard Aubrey (mail):
Oren.
Nice job of missing the point.

Here's how it works with human beings in the real world. Tsktsking from the executive boxes has a limited effect.

At a certain point, the good guys--citizens--are going to object to the losses of their sons and daughters, and possibly themselves and their neighbors and the nearest city because of our adherence to laws which are violated by the other side and adjudicated by courts staffed by our enemies.

And then it's Katy bar the door. It would be better to avoid that.

But if you want to continue your moral superiority, and if you can insist on its being carried beyond its logical limit, the door opens. Which is to say, your position seems to be a matter of self-congratulation than any reasonable moral or ethical conclusion. I have this picture of Oren fleeing from the law. As it gets better, from his point of view, being superior means distancing himself from it. So, no matter how much advantage it gives our enemies, and no matter how many of our people it kills, he will not be satisfied.

So, Oren. How's that for moral condemnation? Thought you had the franchise, huh?
8.25.2008 9:28pm
Oren:
It's very sad that you have no faith in the ideals of the western civilization, the very same that you insist on defending by dismantling. No worry though, if the point comes when we are so exasperated by burden of having to do the right thing then we will cast off this terrible ethics and revert right back to barbarism.

Also, "courts staffed by our enemies"? Seriously? Is there absolutely no room in your mind for anything but people that agree with you and people that want to destroy everything you hold dear? Is it possible, purely theoretically, that someone exists who agrees with all of your goals and values but disagrees on how to implement them? Or is opposition to your particular policy preferences itself proof of intent to destroy you?
8.25.2008 9:59pm
TDPerkins (mail):

You guys are seemingly unable to come to grips that even those that are not morally culpable for deaths might be motivated by a desire to avoid those deaths.


You are definitely unable to come to grips that interpretations of the rules of war which require soldiers to be unreasnably suicidal should not and most likely will not be adhered to. Neither have you addressed most of the points put to you, instead, you invent increasingly superfluous hypotheticals.


Those that seem to think we need to descend into barbarism to preserve civilization don't even understand what they are defending.


And those who think firing on such reasonably suspicious characters as that TV crew carelessly made themselves to appear to be are persons who have abandoned reason, which is the foundation of civilization.

Yours, TDP, ml, msl, &pfpp
8.25.2008 9:59pm
TDPerkins (mail):
...who think it wrong to be firing...

Yours, TDP, ml, msl, &pfpp
8.25.2008 10:13pm
Oren:
I've addressed every point you brought up, perhaps not to your liking (after all, anyone that disagrees with you is an enemy -- I'd hate to have to order pizza with you). As to whether the rules will be adhered to, that's hardly the point. The general social rules against murder and rape aren't really adhered to, shall we jettison them too?

Of course, if you insist on starting from a position that there is any good superior to preserving human life, I will have to grant you that. Just don't complain about those brutal terrorists willing to kill innocents to achieve their goals -- after all, they're just trying to further a higher cause.
8.25.2008 10:22pm
Oren:
Reason, by the way, is not the foundation of human civilization. Considering the ancient Egyptians who, by all accounts, sincerely worshiped their king as a God even when he was killed in battle and replaced with a new king from a faraway land, such a claim is preposterous beyond belief.

Even moreso, I hardly see how your judgment of a fellow's reasoning ability is at all relevant to the discussion. I see, on a daily basis, people that appear to have lost all hope of reasoning clearly (not the least of which on the internet) and yet somehow society has not collapsed.
8.25.2008 10:30pm
TDPerkins (mail):

I've addressed every point you brought up, perhaps not to your liking


No, you've actually just insisted your's is the correct interpretation and then supplied abstruse hypotheticals which in some cases have nothing to do with the actions of tank crew. The closest you came to responding to a point was your post of 8.23.2008 9:59am, and then you generally responded with unsupported assertions, for example, your ludicrous assertion civilians are under no obligation to distinguish themselves from combatants.


The general social rules against murder and rape aren't really adhered to, shall we jettison them too?


No, those are actual rules.


Of course, if you insist on starting from a position that there is any good superior to preserving human life, I will have to grant you that.


Soldiers being able to fire on persons who appear to be combatants is a part of preserving deserving human life, and yes, it is quite possible for people not to deserve their lives, and for them by their own actions to make them forfeit--else there is no right to self-defense--the existence of which you have already not merely conceded...

...You have said it is one of the creator's commandments.

So who are you arguing with? Sounds to me like you need to take it up with the higher authority. You are by your own words in disagreement with Him.


Just don't complain about those brutal terrorists willing to kill innocents to achieve their goals -- after all, they're just trying to further a higher cause.


That's a telling statement. There is no gray area here, there is no moral complexity or equivalency. They aren't trying to further a higher cause.

But you've just said they are.

Yours, TPD, ml, msl, &pfpp
8.25.2008 10:39pm
TDPerkins (mail):

Considering the ancient Egyptians who, by all accounts, sincerely worshiped their king as a God even when he was killed in battle and replaced with a new king from a faraway land, such a claim is preposterous beyond belief.


This is not ancient Egypt, to the degree it passed for a civilization, it has passed away.

There was this little thing called the Enlightenment, you might have heard of it (although lately I'm doubting you have). That's the foundation of our current civilization.

You would do better to reinforce it, and not indulge in thinking terrorists are simply seeking their own version of a higher good which has its own validity as much as does that of their opponents.

The Enlightenment's higher good is actually, umm, higher.

Yours, TDP, ml, msl, &pfpp
8.25.2008 10:45pm
Oren:

for example, your ludicrous assertion civilians are under no obligation to distinguish themselves from combatants.

Maybe we have a different version of the Geneva conventions. Mine says, in relevant part:

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Maybe my copy got smudged somewhere . . .
8.25.2008 10:54pm
TDPerkins (mail):
Oren, please quit blathering beside the point, you yourself said unarmed civilians (or in this case, persons in ambiguously civilian dress) who aid combatants are fair game. How much more so are persons in such ambiguously combatant gear as an armored vest and apparently operating and ATGM? If, as it seems you have yourself conceded, such persons are fair game, how then can there be no obligation incumbent on non-combatants to appear to be non-combatants, and concomittantly, how can there be an obligation on the part of soldiers to refrain from firing on "civilians" who cannot be distinguished from combatants?

You contradict and undercut yourself about every third post.

Do you really have any clear idea of what you expect soldiers to achieve and any reasonable mechanism by which they can do it? Or do you just expect them and the civilians they protect to pay the butcher's bill for your pretensions?

Yours, TDP, ml, msl, &pfpp
8.25.2008 11:09pm
Oren:
You'll find no intellectual support for barbarism in the works of the Enlightenment. It was the Declaration of the Rights of Man that asserted (IIRC) that the purpose of military force the common good, not to further the partisan ends of those that control it.
8.25.2008 11:12pm
Oren:
So again, we come to your absurd position that a civilian surrenders his protected status by putting on an armored vest and pickup up a video camera. Or a laptop. Or an apple. Or does anything whatsoever actually. At this rate, you'll manage to get a 100% survival rate for protected people because there won't be any at all.

And, I'm still waiting for any mention of the obligations of civilians. I've looked myself and all I can find are hundreds of articles pertaining to the obligations of governments and soldiers and not one that supports your claim.
8.25.2008 11:18pm
Oren:

how can there be an obligation on the part of soldiers to refrain from firing on "civilians" who cannot be distinguished from combatants?

If you don't know what you are firing at, you shouldn't pull the trigger. Awareness of your actions isn't part of morality, it's an absolute prerequisite. How you can possibly justify shooting at a target you haven't even identified is beyond me.
8.25.2008 11:21pm
Oren:

Do you really have any clear idea of what you expect soldiers to achieve and any reasonable mechanism by which they can do it?

I've set it forth rather clearly -- know what you are shooting at and know that it's a legitimate military target. Mistakes are allowed, wanton disregard for human life is not.
8.25.2008 11:24pm
Oren:
I should add that the Israeli army is a model of those values and has shown both restraint and compassion rivaling that of any other army in the world. Mistakes of judgment like this incident are an aberration, not the norm.
8.25.2008 11:26pm
TDPerkins (mail):

You'll find no intellectual support for barbarism in the works of the Enlightenment.


Wow. Way to not respond. Beautiful job of it.

There is nothing of barbarity as you mean it in soldiers firing on persons who reasonably appear to be combatants, which is what we are addressing here.


It was the Declaration of the Rights of Man that asserted (IIRC) that the purpose of military force the common good, not to further the partisan ends of those that control it.


If you didn't pick up on it, the Declaration of the Rights of Man is from the French Revolution. The American Revolution is the Revolution That Worked(TM). This distinguishes it from the French attempt which led to the abnegation of the Enlightenment seen in the tumbrels heading to the guillotine. The French Revolution is when the Enlightenment began it's leftward death spiral towards socialism and fascism, becoming the Endarkenment (hat-tip to Billy Beck, although I doubt he's the first to think it).

Of course the purpose of military force is to further the partisan ends of the people controlling it, and nothing else is true in that regard. More support from you for moral equivalence, in that you implicitly fear to acknowledge some partisan ends are far, far better ones than others--and that the proper yardsticks by which to judge military means are whether they are contradictory of a good end and appropriate to it in terms of destructiveness, expenditure, and in improving the odds of securing victory.

And you still do not address the plain obligation on the part of civilians--if they are not to be mistaken for combatants--to appear to be non-combatants, else they appear to be combatants and are thus legal targets.

You do not address how meeting that obligation in fact results in civilians being the better protected.

Yours, TDP, ml, msl, &pfpp
8.25.2008 11:33pm
TDPerkins (mail):

So again, we come to your absurd position that a civilian surrenders his protected status by putting on an armored vest and pickup up a video camera. Or a laptop. Or an apple. Or does anything whatsoever actually.


I have already responded to your ludicrous assertion that a laptop looks enough like a mine to be a justification for killing the bearer, likewise you assertion that an apple would be a deadly thing to carry. Circumstances matter, you would do yourself credit to admit that.


At this rate, you'll manage to get a 100% survival rate for protected people because there won't be any at all.


That is exactly the self-contradiction you keep on tangling yourself in.


And, I'm still waiting for any mention of the obligations of civilians. I've looked myself and all I can find are hundreds of articles pertaining to the obligations of governments and soldiers and not one that supports your claim.


I've just shown it. If persons in civilian dress (nevermind the camera crew in question had armored vests on) are legal targets if they are participating in hostilities, then it follows directly that civilians have an obligation to take care to not appear to be participating in hostilities.

It cannot be stated more plainly than that.

Do you really imagine that the GC are a complete statement on what is right an wrong in war, and if so, do you then claim there was no right or wrong in warfare prior to the GC? Or are they neccessarily flawed, incomplete attempts to codify pre-existing truths?


If you don't know what you are firing at, you shouldn't pull the trigger.


They did know what they were firing at. That they were wrong does not contradict that.

Being wrong is not an aberration, it is an inevitability. To be as sure as you would have them be is to require suicidal soldiers, and that's too much to ask of them. Also, it is nothing the GC asks of them.

Yours, TDP, ml, msl, &pfpp
8.25.2008 11:50pm
Oren:

If persons in civilian dress (nevermind the camera crew in question had armored vests on) are legal targets if they are participating in hostilities, then it follows directly that civilians have an obligation to take care to not appear to be participating in hostilities.

"Follows directly" here is used a synonym for "rhymes with orange". By your logic, if thieves walk around at night then it follows directly then honest folk should take care not to walk around at night. If drug dealers drive around in fancy cars, then law-abiding citizens should take care that their cars don't look so good.

In my entire life, I have *never* heard anyone come anywhere near making the claim that the person that is doing nothing wrong must change their actions for the sole purpose of ensuring that a third party does not mistake them for an evildoer. Bolded so you might read over it and consider what you are saying. The person that has done no wrong has to change what he's doing so that you don't mistakenly blow him up.
8.26.2008 12:15am
Oren:

Do you really imagine that the GC are a complete statement on what is right an wrong in war, and if so, do you then claim there was no right or wrong in warfare prior to the GC? Or are they neccessarily flawed, incomplete attempts to codify pre-existing truths?

No, but if this mysterious obligation of innocent civilians were anywhere near as logical as you claim, you'd think they'd have mentioned it at least once? Maybe in a footnote?
8.26.2008 12:16am
Oren:
They did know what they were firing at. That they were wrong does not contradict that.
Actually, if you RTFA'd, you'd know that there was debate between the tank crew as to whether it was a mortar, an ATGM or a camera. They were, at the time, unsure at what they were firing.
8.26.2008 12:19am
LM (mail):

If persons in civilian dress (nevermind the camera crew in question had armored vests on) are legal targets if they are participating in hostilities, then it follows directly that civilians have an obligation to take care to not appear to be participating in hostilities.

The only clear obligation is a practical one, assuming the civilian doesn't want to be a casualty of a mistaken ID. There's certainly no legal obligation. And the only argument for a moral obligation would be that it's wrong to seduce a soldier into mistakenly killing you and thus incurring legal punishment. But to the best of my knowledge, those inclined to such martyrdom prefer missions with a higher, more dramatic return on their investment. But if you can show that civilians are going out of their way to look like combatants (not combatants going out of their way to look like civilians), you may have a fair point. Can you?
8.26.2008 12:58am
TDPerkins (mail):

By your logic, if thieves walk around at night then it follows directly then honest folk should take care not to walk around at night.


No. Walking around is a perfectly legal and common activity. If they do not want to be taken for thieves, honest folk need only avoid prying at other people's windows at night. You persist in commenting as if the very uncommon activity of operating a large all black TV camera while wearing no observable press markings, is, on a battlefield, such a common thing that when presented with the site of it, in spite the use of manifold ATGM's earlier--that the tank crew came to an unreasonable conclusion the the TC crew was an ATGM crew. It was instead a reasonable conclusion and one made with a very high degree of certainty.


In my entire life, I have *never* heard anyone come anywhere near making the claim that the person that is doing nothing wrong must change their actions for the sole purpose of ensuring that a third party does not mistake them for an evildoer. Bolded so you might read over it and consider what you are saying. The person that has done no wrong has to change what he's doing so that you don't mistakenly blow him up.


&


No, but if this mysterious obligation of innocent civilians were anywhere near as logical as you claim, you'd think they'd have mentioned it at least once? Maybe in a footnote?


You are entirely finding the wrong emphasis here. It is not that they must change their everyday behavior for the sole purpose that a third party does not mistake them for an evildoer, it is that they must if they are not suicidal not act in a manner which closely mimics evildoing, which most people manage to avoid without effort or modification of their behavior, and can probably do so even on a battlefield.

Like I said, a having a laptop with you wouldn't get you into trouble unless you were burying it in the road, and likely only then seen doing it at a great distance. If the soldier could see what you were doing, they'd just wonder WTH you were burying a laptop.

And no, considering the GC were written over a hundred years or more, parts that seem vital now were at one point not even considered.


Actually, if you RTFA'd, you'd know that there was debate between the tank crew as to whether it was a mortar, an ATGM or a camera. They were, at the time, unsure at what they were firing.


There was a question. It was erroneously resolved. That is a very different thing.

Yours, TDP, ml, msl, &pfpp
8.26.2008 7:38am
TDPerkins (mail):

And the only argument for a moral obligation would be that it's wrong to seduce a soldier into mistakenly killing you and thus incurring legal punishment.


Hardly, there is a component of negligence to the actions of the TV crew. If you are going about on a battlefield, there is an obligation to take care to appear not to be a combatant. Just walking around is probably not big problem--not that it's wise--but operating something that can appear to be a crew served weapons system is not so common it should not be on the civilian's mind.

Really, they should have presented any observers with a flag marked TV, and given Hamas' predilections towards the misuse of badges of neutrality, the TV crew should have had several in use of a different color, communicating what colors they were using to the Israelis on a timely basis.

At that point, it becomes the Israelis job to disseminate the inforamtion.

And TV crews would still be occasionally killed, but not through their own negligence.

And when that then happened it would likely not be through negligence, and not likely a violation of the Geneva Conventions.

Yours, TDP, ml, msl, &pfpp
8.26.2008 7:47am
Oren:
Actually, on that we can agree. The press and the army should come to a mutual understanding on identification and disclosure.
8.26.2008 10:32am
Richard Aubrey (mail):
Oren.
Then the terrs would be well to find out the password of the day, wouldn't they? But, being terrs, no problema.

This same thing happened about twenty years ago. I was with a group getting ready to go to Central America and brought up the subject. Videocams and boom mikes were bigger in those days, looked more like weapons, and a news crew got vaporized by an IDF tank from about three miles away. Optics were not so good. I was concerned that some of our good folk would want to challenge The Man (El Hombre) by faking it.

After several tragedies, toy guns are now mostly identified by having red around the muzzle. If a cop shoots a kid having a non-identified toy gun, in an ambiguous situation, possibly in an area where the law requires those sold to be so identified, the lack of ID will no doubt feature in the investigation. IOW, the duty of a civilian to take positive action to not look like a gunman would become de facto law.
I hope the analogy is clear.
8.26.2008 11:02am
Oren:
Richard, I'm sure a suitable solution could be found. Something along the lines of a transponder with unique daily codes given to each organization. If we find Hamas with your transponder codes, you don't get any more and some other reputable news organization gets the slot.

Nice to know that you license the police to shoot my kids and ask questions later though, I hope I never live anywhere near you guys.
8.26.2008 11:11am
Richard Aubrey (mail):
Oren.
Wrong again. The cops have already been licensed to shoot your kids, and have. They've even gotten away with it. That's why the toy guns are supposed to be identifiable.
If they are not...Oren's snark isn't going to stifle the question of what effect the lack of identifiable markings have on the investigation of the shooting. And the result will be de facto law in the future. And I won't even have been consulted.

You have to grow up. Just because you don't like something doesn't mean there's a Big Mean Ol' Daddy making bad things happen. That's so 1968.
8.26.2008 11:30am
Yankev (mail):

I should add that the Israeli army is a model of those values and has shown both restraint and compassion rivaling that of any other army in the world. Mistakes of judgment like this incident are an aberration, not the norm.
Agreed. And I should add that Jewish law -- which does indeed demand that none not turn an innocent person over to bandits or enemies to be killed as the price of saving a town -- has its limits. The same discussion in the Gemara points out, I believe, that if the invaders name a specific individual to be handed over and it is clear that they will otherwise kill out everyone in the city, we hand over the person they are looking for. Elsewhere, R. Akiva holds that if two are crossing the desert and one runs out of water and the other has enough water to sustain only himself, the one with the water drinks it and lives rather than both dying. The sages agree that the law follows R. Akiva. And most important, none of the rules about preservation of life apply to the residents of an enemy town that has attacked you and refused to surrender; the inhabitants, including civilians, can be killed, beseiged, starved, and even attacked by hurling diseased animal carcasses into the city to start a contagion. If as and when they surrender, they aquire the rights of civilians. Not before.

As to innocent people not having to change their behavior, did your father never tell you to keep your hands in plain sight when talking to a police officer, and to avoid sudden moves? Did your mother never tell you to avoid certain neighborhoods after dark (or even during the day), and not to wear clothing identified with gang members? Innocent people with common sense do these things all the time.

What were the consequences to the tank crew if they mistakenly held their fire in a combat zone? They die and their comrades (in other tanks or in infantry units) who are counting on them may well die. And if the battle goes badly enough, their families at home die.

Having seen the photos taken from the distance between the tank and the camera crew, no one would echo Reuter's or AI's charge that the IDF crew must have certainly known that it was a bunch of reporters and not an anti-tank crew.
8.26.2008 4:19pm
Richard Aubrey (mail):
Yankev.
Come to think of it, having seen Reuters and AI in action in the ME, no one with good sense would take their unsupported word for anything.
8.26.2008 5:54pm
Oren:

Did your mother never tell you to avoid certain neighborhoods after dark (or even during the day), and not to wear clothing identified with gang members?

Actually, she specifically counseled against such logic. Her reasoning was that if we start to adopt these policies, we surrender those neighborhoods or clothing types to the gangs, effectively acknowledging their claims as legitimate. It is our responsibility, she would argue, to walk through those areas without fear as a direct statement that we do not allow our lives to be controlled by violent thugs.

The whole world is a narrow bridge, right?
8.26.2008 10:34pm