The Volokh Conspiracy - International Law and the Gaza Conflict, Redux:

One thing that's clear from the recent Gaza conflict is that to many leftists, "violations of international law" is simply shorthand for "a country is engaging in military action that I don't approve of."

A case in point is a statement, via Brian Leiter, by self-styled "American Jewish progressives" (some of whom, I note, seem to assert their Jewish identity only when its useful for bashing Israel) on Gaza. The statement claims that Israel acted "with little or no consideration for human rights or the laws of war."

As usual with such statements, not a single documented violation of the laws of war is mentioned. Say what you will about the wisdom, or even morality, about the IDF's actions in Gaza, the idea that it acts "with little or no consideration for the law of war" is absurd. Not only does the IDF have strict internal rules promulgated by its version of the JAG, but it knows it has the entire international left breathing over its shoulder, looking for any violations of rules that could be exploited for propaganda purposes.

We could review for many paragraphs the various actions Israel took to limit civilian casualties, such as calling people living in Hamas weapons depots (also serving as apartment buildings) to warn them that a bombing raid was imminent, even though this also allowed the "bad guys" time to escape. And I can once again refer to the retired British army colonel who remarked that there has bee "no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the IDF."

But the argument against such broad indictments of Israel is even simpler. Even Israel's harshest critics claim no more than 1,400 or so deaths in Gaza, with a significant fraction of those Hamas fighters. If Israel truly "little or no consideration for human rights or the laws of war," why were the casualty figures that low? Surely Israel could have unleashed far greater devastation, while also achieving more of its military objectives. Israel could have, for example, demolished Shifra Hospital, which has underground bunkers that served as a command center for the Hamas leadership. That leadership survived the war because Israel wouldn't demolish a working hospital to get at them.

In any event, I'll lay down the challenge to the signators of the statement that one should issue whenever one sees similarly ignorant statements: Precisely what "laws of war" do you claim Israel violated in Gaza, what is your evidence for these violations, what treaties or legal precedents can you cite to support your claim, are you aware of legal authorities that disagree with your interpretation of international law, and under what legal theory is Israel bound by whatever particular international law principle that you are purporting to apply (e.g., if you are citing a treaty that Israel specifically declined to be a party to)? Comments are open below for the signators. [UPDATE: One more: Specifically, what could Israel have done differently in Gaza that would lead you to acknowledge that it had complied with the laws of war. If the answer is, as I suspect for many signators it would be, "not go into Gaza to begin with," then obviously we can go back to the first sentence of this post."]

Near as I can tell, only one law professor signed this statement, but surely he wouldn't have signed it without having answers to those questions readily at hand, so perhaps he can enlighten us. And note, while it's possible (though not yet proven) that there were isolated violations of international law by a unit here or there, such as the controversy over the alleged failure to allow Red Crescent ambulances to reach a certain neighborhood for several days [update: this article suggests that Israel may have known that Hamas was hijacking ambulances to transport its fighters], proof of isolated violations of international law, contrary to army policy, would still not support the claim that there was "little or no consideration," overall, of the laws of war.

	[David Bernstein, January 28, 2009 at 10:35am] Trackbacks International Law and the Gaza Conflict, Redux: One thing that's clear from the recent Gaza conflict is that to many leftists, "violations of international law" is simply shorthand for "a country is engaging in military action that I don't approve of." A case in point is a statement, via Brian Leiter, by self-styled "American Jewish progressives" (some of whom, I note, seem to assert their Jewish identity only when its useful for bashing Israel) on Gaza. The statement claims that Israel acted "with little or no consideration for human rights or the laws of war." As usual with such statements, not a single documented violation of the laws of war is mentioned. Say what you will about the wisdom, or even morality, about the IDF's actions in Gaza, the idea that it acts "with little or no consideration for the law of war" is absurd. Not only does the IDF have strict internal rules promulgated by its version of the JAG, but it knows it has the entire international left breathing over its shoulder, looking for any violations of rules that could be exploited for propaganda purposes. We could review for many paragraphs the various actions Israel took to limit civilian casualties, such as calling people living in Hamas weapons depots (also serving as apartment buildings) to warn them that a bombing raid was imminent, even though this also allowed the "bad guys" time to escape. And I can once again refer to the retired British army colonel who remarked that there has bee "no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the IDF." But the argument against such broad indictments of Israel is even simpler. Even Israel's harshest critics claim no more than 1,400 or so deaths in Gaza, with a significant fraction of those Hamas fighters. If Israel truly "little or no consideration for human rights or the laws of war," why were the casualty figures that low? Surely Israel could have unleashed far greater devastation, while also achieving more of its military objectives. Israel could have, for example, demolished Shifra Hospital, which has underground bunkers that served as a command center for the Hamas leadership. That leadership survived the war because Israel wouldn't demolish a working hospital to get at them. In any event, I'll lay down the challenge to the signators of the statement that one should issue whenever one sees similarly ignorant statements: Precisely what "laws of war" do you claim Israel violated in Gaza, what is your evidence for these violations, what treaties or legal precedents can you cite to support your claim, are you aware of legal authorities that disagree with your interpretation of international law, and under what legal theory is Israel bound by whatever particular international law principle that you are purporting to apply (e.g., if you are citing a treaty that Israel specifically declined to be a party to)? Comments are open below for the signators. [UPDATE: One more: Specifically, what could Israel have done differently in Gaza that would lead you to acknowledge that it had complied with the laws of war. If the answer is, as I suspect for many signators it would be, "not go into Gaza to begin with," then obviously we can go back to the first sentence of this post."] Near as I can tell, only one law professor signed this statement, but surely he wouldn't have signed it without having answers to those questions readily at hand, so perhaps he can enlighten us. And note, while it's possible (though not yet proven) that there were isolated violations of international law by a unit here or there, such as the controversy over the alleged failure to allow Red Crescent ambulances to reach a certain neighborhood for several days [update: this article suggests that Israel may have known that Hamas was hijacking ambulances to transport its fighters], proof of isolated violations of international law, contrary to army policy, would still not support the claim that there was "little or no consideration," overall, of the laws of war.