According to an old adage, “Truth is the first casualty in war.”
Israeli Prime Minister Benjamin Netanyahu has repeatedly asserted that in its response to the Hamas attacks in October 7, 2023, Israel has complied and is complying with International Himanitarian Law, popularly known as the laws of war.
Is this assertion true? Is Israel complying with International Humanitarian Law?
U.S. officials and ex-general commentators have either affirmed that Israel is complying with the laws of war, or have avoided a direct response, even when asked repeatedly for a clear answer.
This is an important question. How can we get an honest and impartial answer from experts?
Several observations are in order.
First, Israel has mounted a masterful war propaganda campaign. For example, the BBC has been strongly attacked because of an alleged pro-Palestinian bias by one of its reporters in Gaza. In response, the BBC coverage of the conflict appears to have given prominence to interviews with a spokesman for Netanyahu, often leading off the news program with an extensive interview. Day after day. The spokesman has a magnificent English accent.
Also, the BBC seems to have been giving great prominence to the personal stories of Israeli victims of the October 7 Hamas attacks, while a similar emphasis on the personal stories of Palestinian victims of the Israeli siege and bombing of the Gaza strip seems to have been absent. To be sure, this absence may be partly (but not entirely) due to the relative lack of access of Western reporters to victims in Gaza.
India McTaggart, “BBC reporters accuse it of favouritism towards Israel; Letter from eight UK-based journalists to media rival says corporation guilty of ‘double standard in how civilians are seen’,” The Telegraph, November 23, 2023 (2:47 pm).
Second, experts on International Humanitarian Law, often lawyers, appear to be extremely reluctant to render judgment on whether particular actions constitute war crimes. This reluctance is not limited to the present conflict, but rather seems to result from a confusion on the part of experts between describing what they are witnessing, on the one hand, and the conviction of individuals for the commission of war crimes in a criminal court, on the other.
It is as if a domestic reporter could not describe the murders in a mass shooting without there first being a conviction of the shooter in a court of law.
We need to be able to describe war crimes we see being committed, in full view, in plain and simple terms, without always qualifying our statements with reference to the lack of criminal convictions of the perpetrators.
Third, with respect to Israel’s siege and attacks on Gaza, we need to be particularly careful in assessing the validity of Isreali assertions that these actions meet the requirements in international humanitarian law.
Here, the need to gather opinions from international legal experts from countries other than Israel and the United States is especially great. Israel and the U.S. espouse somewhat idiosyncratic interpretations of key provisions of the laws of war, which may not be shared by any but a handful of countries.
U.S. interpretations of the proportionality requirement and the requirement of distinction between belligerent combatants and civilians, espoused in Afghanistan and in the world-wide “war on terror”, may not be shared by an overwhelming number of countries in the world today. The cases of Fallujah and Mosul are particularly relevant.
Consequently, in seeking to answer the question of whether Israel is complying with International Humanitarian Law in its siege and attacks on alleged Hamas facilities in Gaza, we must always remember that international law is INTERNATIONAL. See,
“What is International Law? Lesson One: International Law is INTERNATIONAL,” Trenchant Observations, November 17, 2023.
As we concluded in this article,
If there is one important thing to know and always remember about international law, it is that it is INTERNATIONAL.
It is not necessarily what officials and scholars in your country say it is.
If news reporters want to understand what the relevant international law in a given situation is, they need to call and talk to scholars and officials in foreign countries. This is always the case, because international law is always INTERNATIONAL.
For the views of Luis Moreno Ocampo, the former chief prosecutor of the International Criminal Court (ICC) and deputy prosecutor of the junta generals in Argentina in 1985 (portrayed in the film “Argentina, 1985“), see
Natalia Janquera, “Luis Moreno Ocampo, ex-ICC prosecutor: ‘To not allow water, food and fuel through is to turn all of Gaza into an extermination camp’; The former (prosecutor) of the International Criminal Court and part of the team that prosecuted Argentina’s dictatorship believes that Israel’s actions could fuel more terrorism in the world,” El País (English edition), October 23, 2023 (07:34 EDT).
1) Clive Baldwin (Senior Legal Adviser), “How Does International Humanitarian Law Apply in Israel and Gaza?” Human Rights Watch, October 27, 2023‘ (1:45PM EDT)
Clive Baldwin is Senior Legal Adviser at Human Rights Watch
2) Chris McGreal, “Have war crimes been committed in Israel and Gaza and what international laws apply? The UN has said there is evidence that international humanitarian law may have been breached by both sides in the conflict,” The Guardian, October 31, 2023 (05.00 GMT);
3) Jennifer Hansler, “US has not determined whether Israel has violated international humanitarian law, official says,” CNN, November 16, 2023 (3:17 p.m. ET);
4) Rachel Oswald, “US arms aid to Israel tests whether humanitarian law applies; Congress expected to revisit emergency request when it returns from Thanksgiving recess,” Roll Call, October 23, 2023 at 5:53 p.m. EDT
Under U.S. law, compliance with International Humanitarian Law is a requirement for arms transfers to other countries. The issue is likely to arise when the Senate and the Congress consider President Biden’s outstanding request for $14.3 billion in aid to Israel.
Truth may be the first casualty in war, but it is an absolute requirement in judging compliance with International Humanitarian Law.
The Trenchant Observer