Analysis from Israel

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

3 Responses to The Red Cross Destroys the Laws of War

  • J.J. Surbeck says:

    I couldn’t agree more with your assessment of this oversimplified and dangerous interpretation by the ICRC.

    I should know: I was a member of the ICRC legal team that suggested and defended between 1974 and 1977 the additions to the 1949 Geneva Conventions known today as the 1977 Additional Porotocols to the 1949 Geneva Conventions.

    That’s where and when everything started to unravel. With the acquiescence of several of my ex-colleagues and the support of the then powerful coalition of third world and Soviet-dominated countries, the Diplomatic Conference that adopted these new texts did away with the fundamental four rules that had until then been needed for any combatant to be granted legitimacy, which in turn meant they were entitled to be protected under the IIIrd (PoWs) Geneva Convention even though they were not members of regular armed forces. After that, everything went downhill, and the ICRC has since been waging a losing battle to convince the world that the rules of the “Law of War” are worth being respected no matter what, even if the enemy is not repecting them at all. Talk of a fool’s bargain.

    In this battle, the ICRC is not always showing intellectual honesty. And it is not afraid either to apply shocking double standards that have weakened considerably its once pristine credibility. Example: its very self-serving interpretation of Art. 49 of the IVth Convention, vociferously brandished by the enemies of Israel, which it claims apply to the case of the Occupied Territories when in fact and in law it doesn’t since the latter where acquired during a defensive war. The ICRC knows that, but it has preferred to join the anti-Israel choir because a) it is afraid of antagonizing the Muslim world, like so many others, and b) its still ongoing operation in Israel is the longest in its history, starting with the War of Independence, an operation that actually saved the ICRC from oblivion: see “The Imperiled Red Cross and the Palestine-Eretz-Yisrael Conflict, 1945-1952” by Dominique Junod, a former colleague of mine at the ICRC (http://tinyurl.com/y78ymzfx). The ICRC has never shown the same zeal to apply that very same provision to the invaded nation of Tibet and scores of other lands either invaded or illegally annexed. Hypocrisy therefore rules also in Geneva, and that means the humanitarian institution is not the moral authority it fancies itself to be when it shows such dishonesty.

    Your conclusion therefore is correct: by demanding impossibly high standards of behavior from some parties only and closing its eyes, its mouth and its ears (not to mention holding its nose) in the face of innumerable violations by most others of the very same Laws of War the ICRC wants now to lecture us about (Syria, anyone?), it is further damaging not only its own image but also the credibility of IHL itself (International Humanitarian Law, the updated name for Laws of War). The likely result will be a return to the previous, more brutal but in a sense more equitable rule of reciprocity: IHL will be respected and applied by one party only if the other side respects and applies it, too. Otherwise, we’ll go back soon (it’s a lready the case in many places) to the law of the jungle, and no one is likely to come out a winner.

  • YJ Draiman says:

    The U.N. impact is much worse – people treat the U.N. resolutions as if its the holy grail

    The U.N. is a useless organization and counter-productive – Issues Non-binding resolutions with no legal standing that includes the ICJ advisory only.

    The U.N. cannot create State or modify borders, they have no such authority.
    In a Democratic legal system if you have decision that you think is erroneous or unjust you can appeal that decision and many times it is reversed.
    U.N. opinions and or resolutions are (non-binding) biased, unjust, arbitrary and capricious (the same apply to the ICJ – International Court of Justice).
    The U.N. has issued numerous opinions and non-binding resolutions that are biased, unsubstantiated and contrary to historical and factual evidence. This U.N. collusion with corrupt and biased countries and the issuance of non-binding egregious opinions and resolution has eroded the credibility of the U.N. beyond repair.
    This has raised the ire and an outcry by many nations, politicians and institutions to de-fund the U.N. and dismantle it.
    It is well known that the U.N. and the ICJ can only offer and issue a non-binding advisory recommended opinions and resolutions which carry no legal standing or affect. They can only issue a non-binding recommendation and resolution and if it is accepted by all parties in writing, then their recommended opinion and resolution is applicable (Provided the parties abide by the terms). Otherwise it has no meaning, validity, and no legal standing.
    Therefore, my suggestion is stop panicking and aggrandizing these biased criminal organizations. Their recommended non-binding opinion has no meaningful value and no legal standing.
    By reacting to and citing the non-binding recommendations of this criminal organization as having any validity, you are misleading the public that the recommended opinions by these criminal organizations might have some validity, which it does not.
    It is time to expose the fraud and deception by these unethical, corrupt and unjust organizations and dismantle them completely.
    It will also save a substantial amount of money and resources that could be put to a better use.
    YJ Draiman

    P.S. The League of Nations was replaced by the United Nations, since the league did not accomplish its purpose. The U.N. has not accomplished its purpose for what it was created to perform ethically and honestly.
    In today’s society the Nations of the world can function without an organization such as the U.N.

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On Jerusalem, Trump shows that the emperor had no clothes

After President Donald Trump announced in December that he was moving the U.S. embassy to Jerusalem, a friend lamented that the move would have less impact than it should because Trump was so widely disdained both in America and overseas. Yet since then, I’ve heard more foreign acknowledgments of Jerusalem as Israel’s capital than I can ever remember before.

So far, only one other country is definitely moving its embassy—Guatemala, whose Jerusalem embassy is slated to open two days after America’s does. But at least four other countries—two in Latin America and two in Europe—are actively discussing an embassy move. And even if none actually happens, the very fact that this issue is now openly being debated in regions of the globe where Israel has faced considerable hostility in recent years is a remarkable change.

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But now, a decades-old taboo has been broken. Suddenly, several other countries are where America was 20 years ago, with different branches of government actively arguing over Jerusalem’s status.

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On April 19, Israeli Independence Day, Romania broke an even more significant psychological barrier by becoming the first European country to announce plans to move its embassy. The president of Romania’s Chamber of Deputies told a Romanian television station that the decision had been made the previous evening. Whether it will actually happen remains unclear; the country’s president opposes the move, and the cabinet hasn’t yet approved it. But the prime minister has formally asked the cabinet to do so.

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