Australia / Israel Review

President Joe Biden was right to condemn as “outrageous” the decision on May 21 by the International Criminal Court Prosecutor to submit arrest warrants for Israel’s Prime Minister and Defence Minister. Unfortunately, an ill-informed report and comments last week by Biden’s own Secretary of State, on Israel’s use of American-made weapons, may have contributed to the Prosecutor’s decision.

Secretary of State Antony Blinken wrongly declared on May 12 that the civilian casualty numbers reported by Hamas make it “reasonable to conclude that there are instances where Israel has acted in ways that are not consistent with international humanitarian law.” As Blinken should know, a particular attack’s legality is not dependent on the number of casualties actually inflicted, let alone on a terrorist group’s fictitious figures.

Like Blinken’s ill-considered comments, the May 10 State Department report on Israel’s use of American-made weapons invented a new, casualty-numbers-based test for determining compliance with international humanitarian law. Blinken’s new test endangers US security. In particular, it incentivises terrorists and authoritarian regimes worldwide to imitate Hamas’ tactics of hiding behind human shields to increase actual casualties, of stealing food intended for starving civilians and of inventing additional civilian casualties out of thin air. 

The State Department report’s most substantive finding, unfortunately ignored by most headlines, was that the available information was insufficient to definitively identify even one specific Israeli violation of international humanitarian law, also known as the law of war. So why did the report also speculate, in a sentence that was highlighted in headlines worldwide, that “it is reasonable to assess” that US-made weapons “have been used by Israeli security forces since October 7 in instances inconsistent with its [legal] obligations or with established best practices for mitigating civilian harm.”

Blinken provided the rationale in a May 12 interview, saying that “what the report concludes is that, based on the totality of the harm that’s been done to children, to women, to men who are caught in this crossfire of Hamas’s making, it’s reasonable to conclude that there are instances where Israel has acted in ways that are not consistent with international humanitarian law.”

But the accusations by Blinken and in the report rely on false data from Hamas, mischaracterise international humanitarian law itself, and disregard Hamas’ frequent tactic of hiding behind civilians.

For example, the report explicitly adopted Hamas’ invented number of 34,700 Palestinians killed during the conflict. On May 2, a report demonstrated that Hamas’ list of Palestinian victims does not include names for 10,000 of the purported dead. And, unsurprisingly, on May 8, the UN halved its estimate of women and children killed in Gaza. 

Every civilian death is a tragedy, and there is no debate that the intentional targeting of civilians is a war crime. But the law of war makes clear that unintended civilian deaths are often not violations. 

Under international humanitarian law, an attack’s legality is not determined by the number of civilians killed, but by whether it was intended to harm civilians, or whether the attacker knew at the time of launch that the attack could cause collateral civilian harm that would be excessive in relation to the anticipated military advantage. If not for this, unscrupulous defenders would be incentivised to surround themselves with human shields. 

The test of a law-abiding military is therefore not how many civilians are inadvertently killed amid the fog and split-second timing of war. The test is rather whether that military vigorously implements and enforces robust compliance procedures. 

The State Department report makes clear that Israel meets that actual test of compliance with international humanitarian law. It describes Israel’s robust compliance procedures, says the US “has no direct indication of Israel intentionally targeting civilians,” and states that Israel aborts strikes when civilians are observed near their targets. The report also confirms that Israel is responding to Gaza-related misconduct allegations by examining “hundreds of incidents”, a number of which have become “ongoing, active criminal investigations.”

In contrast – and ironically absent from any headline – the report notes that “Hamas does not follow any portion of and consistently violates” international humanitarian law. It states that “Hamas has embedded itself deliberately within and underneath the civilian population to use civilians as human shields,” a flagrant violation. 

The report makes clear that Hamas units not only hide among civilians, hoping to blend in, but that in fact they purposefully launch attacks from amongst civilians. It says that Hamas persistently seeks “to hide behind civilian populations and infrastructure and expose [civilians] to military action.” It also accuses Hamas of repeatedly “launching attacks on Israeli troops” from designated safe zones. The report acknowledges that these Hamas tactics make Gaza “as difficult a battlespace as any military has faced in modern warfare.” 

Israel’s diligence has nevertheless ensured that the Gaza war’s ratio between Hamas fighters killed and Palestinian civilians killed is in fact historically low. In the 2016-17 battle for Mosul, supervised by the US, approximately 10,000 civilians were killed compared to roughly 4,000 ISIS fighters. In the Gaza war, if the new UN casualty figures are correct, the ratio is 5 times more favourable – only about one Palestinian civilian for every two Hamas fighters killed. 

Blinken’s comments suggest that US and allied forces must henceforth exceed that standard. Knowing that, US adversaries can conclude that they can simply insulate themselves from attack, making it impossible to defeat them, by surrounding themselves with human shields. 

The US Congress should insist that the Administration stop echoing Hamas’ fraudulent casualty figures and stop incentivising enemies to endanger civilians by using them as human shields. As it happens, the Strengthening Tools to Counter the Use of Human Shields Act, enacted just last month, requires the President to submit to Congress a list of, and impose financial sanctions on, all foreign persons involved in Hamas using human shields. Congress should insist that President Biden do so now. 

The message from the US should be clear and consistent: Responsibility for the tragic civilian casualties in Gaza belongs to Hamas as the result of its illegal tactics, and not on the shoulders of an Israeli military that makes extraordinary efforts to avoid such harm. 

Lt. Col. Geoffrey Corn (ret.), a Texas Tech University law professor and JINSA distinguished fellow, previously served as the US Army’s senior law of war expert. Orde Kittrie, an Arizona State University law professor and senior fellow at the Foundation for Defense of Democracies (FDD), previously served as a US State Department attorney. Reprinted from the Hill. © FDD (FDD.org), reprinted by permission, all rights reserved.