The Red Cross Destroys the Laws of War

The International Committee of the Red Cross, self-appointed guardian of the laws of war, has embarked on an exciting new online project: destroying the very laws it ostensibly seeks to protect. Of course, the ICRC would put it differently; it would say it’s teaching the laws of war. The problem is that the “laws” it teaches aren’t the actual laws of war, as codified in international treaties, but a made-up version that effectively denies countries any right of self-defense against enemies that fight from positions inside civilian populations. And it is thereby teaching anyone unwilling to concede the right of self-defense that the laws of war should simply be ignored.

When Israel Hayom reported on the “Don’t Be Numb” project last week, it sounded so outrageous that I suspected reporter error. But the project’s website proved even worse.

The website has four sections – “behavior in war,” “medical mission,” “torture” and cultural property.” But the big problem is the first one, which consists of three questions users must answer correctly to receive a “medal of integrity.”

Question number one: “You’re a military commander. The enemy is hiding in a populated village across the front line. Can you attack?” The correct answer, according to the website, is “no.”

This is simply false. The laws of war do not grant immunity to enemy soldiers simply because they choose to hide among civilians, nor do they mandate avoiding any military action that might result in civilian casualties. They merely require that civilians not be deliberately targeted (the principle of distinction), that reasonable efforts be made to minimize civilian casualties, and that any such casualties not be disproportionate to the military benefit of the operation (the principle of proportionality).

The second question was, “What if you know for a fact that many civilians would be killed? Can you attack?” Since the ICRC had already ruled in the first question that attacking populated villages is never permissible, I’m not sure what purpose this question served; it would only make sense if the answer to the first question had been “yes” and this were a follow-up meant to explore the limits of the license to attack populated villages. But let’s ignore that incongruity and examine the question on its own merits.

The ICRC’s answer, of course, was “no.” But the correct answer is “insufficient information.” As noted, the laws of war don’t prohibit civilian casualties as collateral damage of a legitimate military operation. They do, however, require that such casualties not be disproportionate to the military benefit, and the question doesn’t supply the information necessary to determine whether this attack would be proportionate. For instance, how many civilian casualties does “many” actually mean – 10? 100? 1,000? Even more important, what price will your own side pay if it doesn’t attack? For instance, how many of your own civilians might be killed if you don’t stop the enemy’s rocket and mortar fire?

The laws of war were never meant to be a suicide pact; they do not require countries to let their own civilians be slaughtered in order to avoid harming enemy civilians. But in the ICRC’s version, they do. Its website teaches users that military action which harms enemy civilians is never permissible, so all an enemy has to do to slaughter the other side’s civilians with impunity is set up shop among its own civilian population. By that logic, no action should have been taken to stop, say, the Islamic State’s genocide against the Yazidis, because it operated out of populated villages and couldn’t be dislodged without civilian casualties. Is that truly what the ICRC wants?

Incidentally, using civilians as human shields is a war crime in itself, but you’d never guess that from the website. The implication of the ICRC’s questions is that the laws of war actually encourage using civilians as human shields, because doing so buys you immunity from attack under those very same laws.

Before moving to the third question, the website provides the average scores of respondents from 16 countries on the first two. Unsurprisingly, Israel had the lowest percentage of respondents who gave the “right” answers (followed by America). That’s because Israelis, who are regularly attacked by enemies operating from populated villages, understand better than most that the “right” answers would require them to sit with folded hands while their enemies kill them.

This is highly relevant to the website’s third and final question: “The Geneva Conventions, the core of the international humanitarian law, are now 70 years old. Warfare today is very different; does it still make sense to impose limits in war?” The ICRC’s answer, which I agree with, is “yes.” But limits on warfare will gain wide acceptance only if they still allow for the possibility of effective self-defense. If obeying the laws of war requires letting your own civilians be slaughtered with impunity, no country under attack would agree to do so.

That is precisely the danger of the ICRC’s position. The real laws of war set a challenging but achievable goal: reducing civilian casualties to the minimum consistent with effective military action. But the ICRC’s made-up laws set an impossible goal: avoiding any civilian casualties whatsoever, even if this precludes effective military action. Thus any country that engages in military action would end up violating the ICRC’s laws no matter what steps it takes to minimize civilian casualties. And if so, why even bother to take those steps?

Indeed, this very argument has raged in Israel for years now. Despite Israel’s great efforts to comply with the real laws of war – it “met and in some respects exceeded the highest standards we set for our own nations’ militaries,” a group of high-ranking Western military experts wrote in a report on the 2014 Gaza war – it is repeatedly accused by the UN, “human rights” organizations, and world leaders of grossly violating those laws. Hence many Israelis wonder why they should keep making those efforts, which often increase the risk to their own soldiers and civilians, if they get no international credit for doing so.

The ICRC is not only encouraging terrorists to operate from among civilian populations by granting them immunity; it is also discouraging efforts to comply with the civilian protection measures mandated by the real laws of war. In other words, it’s actually making civilian casualties more likely on two counts – and thereby betraying its own humanitarian mission.

Originally published in Commentary on November 14, 2017