If Only War Were a War Crime

Rocket attacks aimed indiscriminately at Israeli noncombatants are a war crime. Firing on Gazan noncombatants on a beach is a war crime. Starting a war is a war crime.

The idea of war crimes allows us to segregate some negative aspects of warfare. In one mental box we have war criminals. In another mental box we have war heroes.

The humane war that International Law tries to create hasn’t happened yet.

This makes it easier to think of war as a painless, bloodless, heroic thing when done properly. If only Israel were a little more interested in keeping Palestinians alive, the reasoning seems to go, they could make Hamas’s missile capability go away without hurting quite so many people in the process.

Navi Pillay, the United Nations High Commissioner for Human Rights, told the United Nations Human Rights Council that Israel hadn’t sufficiently protected noncombatants, and that Hamas had indiscriminately attacked noncombatants. She said that it is ‘unacceptable’ to locate military assets in densely populated areas. She said that there is a strong possibility that international humanitarian law has been violated in ways that ‘could amount to war crimes’.

Navi Pillay is reporting in a pretty straightforward way. She hasn’t judged that anyone has committed a war crime because she isn’t a judge empowered to make that judgement. Her words, however, convert easily to the conclusion that the slaughter of war is just fine as long as nobody is committing a war crime.

She is unknowingly making aspects of the Gaza War seem heroic by making other aspects seem criminal.

Slaughtering your enemies is generally not prohibited by international law. Judiciously blowing up old people and babies is permitted.

The International Law of Armed Conflict exists in order to make it possible to use armed force humanely. It draws distinctions between combatants and noncombatants, mandates humane treatment of prisoners and demands that casualties be treated equally whether friend or foe.

The Law of Armed Conflict is a useful appurtenance of warfighting, like a tank or a rocket or a field hospital, but the humane war that International Law tries to create hasn’t happened yet.

Law hasn’t made war humane. Slaughtering your enemies is generally not prohibited by international law. Judiciously blowing up old people and babies is permitted, and because the enforcement mechanisms for international law are at best spotty, blowing them up indiscriminately is sometimes rewarded and generally unpunished.

Conscripting youth over 15 years of age to fight is not prohibited, and marching them into your enemy’s guns is not a war crime.

We focus on labelling ‘war criminals’ and ‘war crimes’, and we play into the merciless hands of war itself.

One of the fundamental principles of this category of law is the distinction between combatants and non-combatants. Both categories enjoy certain protections under the Law of Armed Conflict, but the protections are different. Noncombatants do not, in this category of law, have the right to kill in war.

Because they do not have the right to kill, they have some special protections. They do not, however, have an absolute immunity from attack, as any number of wedding guests in Afghanistan and the. Northwest Frontier of Pakistan have discovered in the last decade or so.

Combatants are obliged to distinguish themselves from non-combatants. In decades past they were expected to wear uniforms and carry their arms openly. The requirement has eroded, however, to the extent that combatants are now required only to carry their arms openly while preparing for and conducting operations. They are not required to wear a distinguishing mark or uniform.

This erosion has been deliberate. During the Second World War the Nazis used loaded terms like ‘terrorist’ to describe partisans and resistance fighters and sought lawfully to punish them for fighting. Since then international law has been knit with loopholes to make it lawful for movements of national resistance to fight from the shadows.

What’s the penalty for a combatant who fails to distinguish him or herself from the surrounding noncombatant population? Well, there really isn’t one. Individual combatants or leaders could be prosecuted for failing to distinguish themselves from noncombatants.

Who would prosecute them? The Hamas-run courts of the Gaza Strip would be responsible for prosecuting the Hamas fighters who might fail to distinguish. Failing a local prosecution they might be prosecuted at The Hague. Or they might not.

If there were some grand enforcement mechanism for international law it might reach out it’s long arm and say that Gaza’s government began this war by indiscriminately rocketing Israeli noncombatants. The leaders of Hamas might be drawn from their bunkers in Gaza and their offices in Doha to a prison where they would serve long sentences commensurate with their war crimes. But there isn’t such a thing.

In the next cell might be an Israeli commander who had ordered an attack which killed noncombatants out of proportion to the military necessity of his task.

Bill Clinton and Tony Blair might be serving sentences for killing two or three thousand Serb noncombatants in the Kosovo War of 1999, or they might have got off scot-free because they were stopping the genocide of the Albanian minority in Serbia. Or they might be judged culpable because the NATO settlement in Bosnia encouraged the ethnic cleansing in Kosovo the first place.

But there isn’t such a thing. We focus on labelling ‘war criminals’ and ‘war crimes’, and we play into the merciless hands of war itself. War loves the illusions of legitimacy that these labels confer.

Something gets lost in this imagined system of justice for war crimes and war criminals. For all the Geneva Conventions and Hague Conventions and Red Crosses and UN Relief and Works Agencies, war has not become nice. It has not become bloodless or pleasant or as the Gemans said a hundred years ago as they prepared to attack France, ‘fresh and fun’ (frisch und fröhlich).

Hamas fighters don’t wear uniforms or separate their combatants and noncombatants because they’re fighting a war, and war isn’t courteous.

Israeli rockets kill the grannies and babies they aren’t aimed at because they’re fighting a war and war is full of killing.

The truces and cease-fires which created the non-borders and non-citizens of Israel and Palestine were in a sense meant to preserve the population from the horrors of war, but instead they have kept people pinned to barbed wire fences, shot at and bleeding, for decades.

I hear and read Israelis say that they take every precaution before blasting a building. I have heard the recording released by the IDF in which voices repeatedly ascertain that there are no patients nor staff in al-Wafa hospital. If only, they are all saying, people would just get out of the way; this could be a nice, clean war in which nobody gets hurt.

Just this minute I walked past a British tabloid headline: ‘I love Israel, but the brutality…’ If only, some hack is writing, Israel conducted warfare in a nice way; Israel could retain the hack’s love.

War is never nice.

When he was asked to spare Atlanta the torch in the American Civil War, American General William Tecumseh Sherman struggled to explain to its citizens why their homes and businesses had to burn. ‘War is cruelty,’ he wrote in a letter to them, ‘and you cannot refine it.’ If he spared Atlanta, the war would last longer and more would die.

When the BBC’s Jim Naughtie yesterday asked the hawkish Israeli national security advisor Dore Gold for his response to Navi Pillay’s comments about war crimes Gold was nonplussed. I could hear him struggling to fit the concept into his frame of reference. After a moment’s fumfering he said that Israel does not target noncombatants.

Like General Sherman, he was having trouble fitting the blood-soaked reality of war into the dry conceptual library of international law. One particular rocket might have been illegally directed to kill five when so many, properly directed, were killing hundreds. The suggestion borders on the obscene.

War is, to coin a phrase, nothing more than a continuation of policy. It is a means to achieving policy aims, but it is seductive, attractive and deceptive.  War pretends to be so much more than a mere implementation option.

I don’t know what doors the. Leadership of Hamas passed by before they opened the door marked ‘war’.  I don’t know what options were considered and rejected by Netanyahu’s cabinet before deciding that Israel had to join Hamas in that dark, dangerous place.  Now that everyone’s there, however, don’t expect it to be anything but an obscenity.

About the Author
Dr Lynette Nusbacher is a strategist and devil's advocate. She is Principal at Nusbacher & Associates, a strategy consultancy. She has been a senior national security official in the United Kingdom, was Senior Lecturer in War Studies at Royal Military Academy Sandhurst, and served as a military intelligence officer.
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