Profoundly ignorant filmmakers created NAZA
Yuval Abraham and Rachel Szor directed the film NAZA, which was rapturously lauded and applauded by the attendees at the recent Venice film festival. The directors want the world to believe that NAZA is a serious film about grave violations of the law of war allegedly perpetrated by the I.D.F., but they quite clearly have absolutely no understanding of that law.
Days after the film was released, Mr. Abraham was interviewed for a podcast; the interview is here. In the interview, Mr. Abraham asserts (in English translation beginning at 4:21) the following:
The person says in the film that Hamas uses human shields, but that the practice of attacking people in their homes at night when they are with their families is not because they use the family as a shield, that is, they are not conducting military activity from inside the house, they just go back to sleep there. And we do it [that is, the I.D.F. attacks Hamas operatives in their homes] because it’s easy for us right now [that is, when the Hamas operatives are at home]. And the important point here is that they kill everyone in the building along with them, entire families. (I have added the bracketed material for clarity. D.E.W.)
The foregoing quote makes it obvious that Mr. Abraham believes that fighting both for and against Hamas is essentially a 9 to 5 job. A Hamas combatant gets up at home in the morning, has breakfast, grabs his machine-gun, goes out and kills some Israelis—either soldiers or civilians, it really doesn’t matter—and then, at the end of the workday at 5:00 PM, he punches out the time-clock and returns home for dinner with the wife and kids.
And Mr. Abraham apparently believes that, once the Hamas gunman has returned home and unstrapped his machine-gun, he’s immune from attack, because he’s “not conducting military activity from inside the house, [he] just go[es] back to sleep there.” Therefore, any attempt by the I.D.F. to attack him at home apparently is a grave war crime. Mr. Abraham believes that, after your enemies have stopped killing for the day and gone home, they cannot lawfully be killed until a new day rolls around and they’ve started killing your compatriots again.
Mr. Abraham is entirely, completely, totally and comprehensively mistaken; he understands nothing of the law of war.
Military combat is not limited to a 9 to 5 schedule, and the laws of war do not prohibit attacking a combatant when he is asleep or home with the family. A combatant is never, under any circumstances, required to awaken a sleeping enemy and allow him to arm himself before he’s attacked. The enemy may be attacked and killed while he is sound asleep—that’s not a war crime.
And, in addition, civilians may lawfully be injured or killed in an attack on an enemy combatant (whether or not those civilians are related to a combatant). But an attack that is likely to harm civilians as well as enemy combatants may be launched only if there are no feasible precautions that would prevent those civilian injuries or deaths, and the likely harm to civilians is proportional to the value of the attack’s military objective.
If Mr. Abraham had ever been truly interested in learning about and understanding the laws of war rather than spouting nonsense, he would have found ample resources online. The U.S. Department of Defense has published a comprehensive Law of War Manual, and the U.K. Ministry of Defense has similarly published The Joint Service Manual of the Law of Armed Conflict. I will refer to the U.S. manual (hereinafter “USLWM”); there are no important differences between the two manuals regarding the relevant topics.
First, it is absolutely certain that it is permissible to kill enemy combatants who are asleep. The USLWM (at p. 220) affirms that appropriate military targets include: “Facilities in which combatants are sheltering or billeting.” So, combatants may properly be attacked wherever they shelter or sleep, and there is no exception for facilities that happen to be the homes of combatants.
If Hamas gunmen are at home with other family members who are non-combatants, the presence of those other persons complicates the analysis. But the analysis must begin with the realization that “[t[he protection of civilians against the harmful effects of hostilities is one of the main purposes of the law of war.” (USLWM, p. 188.) The USLWM goes on to assert:
The party controlling civilians and civilian objects has the primary responsibility for the protection of civilians and civilian objects. The party controlling the civilian population generally has the greater opportunity to minimize risk to civilians…. (Footnotes omitted, pp. 188-189.)
Thus, it is the Hamas gunmen themselves who have the “primary responsibility” for protecting their own civilian family-members, and they could easily discharge that responsibility by taking the obvious, common-sense step of sleeping somewhere away from their family home. That simple solution would eliminate entirely the risk that their presence at home presents to their family-members. Any Hamas combatant who sleeps alongside family-members fails in his primary responsibility to minimize risk to civilians, and thus is himself guilty of violating the law of war.
When the I.D.F. knows that a Hamas gunman is sheltering or sleeping in a building—and perhaps in the very same room—in which the gunman’s family or any other civilians are also located, a very delicate, difficult analysis must be undertaken by the I.D.F. before any attack may properly be launched. The general principles are these:
Parties to a conflict must take feasible precautions to reduce the risk of harm to the civilian population and other protected persons and objects. Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken when planning and conducting attacks. … Feasible precautions to reduce the risk of harm to civilians must also be taken by the party subject to attack. (Footnotes omitted, pp. 191-192.)
There can be no precise formula for determining what precautions are feasible in every conceivable circumstance. What the USLWM says, under the heading “What Precautions Are Feasible,” is this:
The standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible. A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited. (Footnote omitted, p. 193.)
Where it is clear that, even if all feasible precautions are taken, there is still the likelihood that a planned attack will result in serious harm to civilians, a “principle of proportionality” applies. That principle is expressed in two rules:
Combatants must take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack, and
Combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained. (Footnotes omitted, p. 249.)
(Incidentally, the concept of “proportionality” is relevant in the law of war only in the foregoing context. That is, “proportionality” is relevant only in considering whether, with regard to a contemplated future attack, the likely civilian harm would outweigh the expected military advantage. There is absolutely no support for the widespread but incorrect notion that the number of casualties on each side of a conflict must be more or less equal and, if they are not, a war crime has been committed. Thus, the fact that more Palestinians than Israelis have been injured or killed in the current conflict does not in any way imply the Israel has committed war crimes; a review of the USLWM will confirm that “proportionality” in the law of war has nothing to do with comparing aggregate numbers of casualties.)
The USLWM asserts the following with regard to proportionality:
The decisions and judgments required by the principle of proportionality normally require authority over military operations. For example, assessing the military advantage expected to be gained from an attack may require knowing the broader strategy being employed by the attacking party or knowing intelligence information about the strategic and operational context in which the attack takes place. Lower-level personnel may not be privy to the strategic or operational significance of a specific attack, and thus may not be competent to evaluate the expected military advantage of the attack against the expected harm to civilians and civilian objects. (Footnotes omitted, pp. 251-252.)
It therefore might well be the case that the I.D.F. soldiers interviewed in NAZA had little or no knowledge of the information their commanders were relying on in ordering the attacks. It is certainly the case that the directors of NAZA had no knowledge of any intelligence information that might have supported decisions to attack Hamas gunmen in their homes.
Armed conflict is a tremendously messy business, and the decisions that must be made in conducting armed conflict are certainly harrowing. We do know, however, without any doubt, that Hamas gunmen who return to their families to sleep at night violate the law of war by placing civilian family-members in harm’s way. Those gunmen bear legal and moral responsibility if family-members are killed in attacks targeted at the gunmen.
There is no question that I.D.F. decisions to attack Hamas terrorists sometimes result in the deaths of innocent civilians. But if anyone presumes to second-guess those decisions and accuse the decision-makers of perpetrating war crimes, it behooves such a person to learn the basics of the law of war. The directors of NAZA have made successful careers based on allegations of I.D.F. war crimes, but they obviously have no understanding whatsoever of the principles of the law of war. They ought to be ashamed of themselves, but I would guess they are not.