War crimes

I sent an email to Andrew Sullivan of The Daily Dish yesterday:

-----------------------------------------------------------------------------------

Andrew-



Many thanks for your informative, insightful, and often relentless blog. I found my way here after your article a couple months back in Atlantic and have struggled to keep up since (enjoying every minute). So much more satisfying than the usual MSM (even my “usual,” the NYT).



Writing for the first time to ask about your ongoing discussion of the crisis in Gaza. Specifically the question of “war crimes.” Your more recent post presumes that the scene you describe in the former is in fact a war crime. I don’t pretend to be an expert on this topic, but I wonder if you could elaborate on this. Obviously, children sitting around their dead parents is terrible, but is it really your position that it is now the responsibility of armies to search for and evacuate the wounded-but-not-killed? And that failure to do so constitutes a war crime? It’s entirely possible that this is a settled question that I’m just not aware of, but it strikes me as a massive expansion in the moral responsibilities of our militaries. From my (and I presume your) perspective, maybe this is ok, but is that really the consensus?



I consider myself pretty “centrist” in this whole Israel/Palestine question. My understanding of the far history in the conflict is limited, but I take it that Israel’s capture of territory following the 1967 war, and especially the subsequent expansion and spread of “colonists” within the West Bank and Gaza, are fundamental and basically illegal catalysts for this whole conflict. On the other hand, the Arab world has provoked them mercilessly since then, most particularly with insistence by various players that Israel should not exist at all. More insidiously, given Hamas’ pervasive use of human shields, it strikes me as difficult to fault Israel for any civilian casualties in the conflict. Doing so sets up an impossible dilemma for modern states in general and Israel specifically. Hamas can strike at other states and then melt back within their civilian sympathizers with the expectation that moral concerns and media coverage will force the other state to stay their hand. This arrangement puts a state like Israel, which is admittedly fallible and mistake-prone but generally seeks to behave morally, at the mercy of a “state” actor like Hamas which deliberately seeks to kill civilians and (perhaps worse) uses its own citizens as human shields (I am playing with some ideas from Philip Bobbitt here, if you’re interested). It strikes me that this is parallel to the question of paying off hostage-takers. We don’t generally do so, even if it means civilian deaths, because paying ransoms would reward the perpetrators and thereby cause more deaths by encouraging hostage-taking. Similarly, western states may be erring in putting too much into avoiding collateral civilian casualties. Certainly we should negotiate and make every attempt to draw these actors out of the civilian populations. But this only works if the end game to the negotiation is overwhelming and unflinching force. Right now, groups like Hamas get to have their cake (inflict pain and embarrassment on Israel) and eat it to (Israel responds with enough force to kill civilians, making them look even worse, but not enough to actually wipe out Hamas, for fear of collateral damage). As an alternative and hyperbolic thought experiment, would any Gazan neighborhood be likely to tolerate militants in their midst if they knew that Israel was willing to level the whole thing, people and all, to eliminate the militant cell?

He wrote back:

joel
not evacuating children from war zones is legally a war crime. the
issue is whether there were israeli troops aware of the kids who did
not evacuate them or get them to hospital. some of them were abandoned
for days in those conditions. but we'll see what emerges

Really?