In New York Times v. United States, the famous Pentagon Papers case, Justice Stewart noted that “when everything is classified, then nothing is classified . . .” His point was important: overclassification undermines the significance of the word secret.
The same holds true for accusations of war crimes and other serious crimes like genocide. The tendency to level these accusations against Israel and almost every aspect of its ongoing military campaign seems almost obsessive. This “accusation obsession” is undermining the significance of the crimes themselves.
It is certainly understandable why many people would be deeply troubled by the human cost of this (or, for that matter, any other) conflict. Still, the significance of the very concept of war crimes and genocide is eroded by overbroad accusations, often coming from individuals with little or no expertise in international law or military operations.
Consider the genocide accusation. Palestinians make up approximately 20% of the Israeli population. While there is legitimate criticism that their social and economic conditions don’t match those of Israeli Jews, they benefit from the same civil rights and legal privileges as any other Israeli citizen. This includes participation in elections and government. How this aligns with the accusation that Israel is engaged in a systemic effort to destroy this ethnic group is perplexing. Nor is the accusation bolstered by casualties in Gaza. Even accepting the accuracy of civilian casualty numbers provided by Hamas, 10,000 deaths out of a population of nearly 2 million – a population that has actually increased over the past twenty years from around 1.6 million – does not align with the accusation. While all civilian wartime casualties are tragic, the gravity of a genocide accusation demands much more than this.
War crimes accusations are equally overbroad. In this conflict, these accusations focus on two primary aspects of Israeli operations. First, cutting off resources to Gaza – what is routinely and erroneously labeled a war crime of collective punishment (there is no such war crime within the jurisdiction of the International Criminal Court). Second, the alleged illegality of Israeli attacks that result in civilian casualties.
Civilians are suffering the consequences of combat operations in Gaza. But the leap from this to the war crimes condemnation is premature at best and invalid at worst. For example, cutting off resources to an enemy is not a war crime, absent proof of a purpose to starve the civilian population.
Even overlooking the fact that there is no evidence of civilian starvation, the accusations ignore the military necessity of depriving Hamas of important resources and Israeli efforts to facilitate the provision of humanitarian assistance to Gazan civilians. It is legitimate to question the timing and efficacy of these efforts. But ignoring them and the legally valid measures to prevent Hamas from diverting these resources exposes the overbreadth of the collective punishment accusation.
More importantly, collective impact and collective punishment are not the same. All wars have a detrimental collective impact on civilians. However, it is the intentional infliction of harm to civilians, or the infliction of harm that, while not intended, is excessive compared to the anticipated military advantage, that the law condemns. When the detrimental impact on civilians results from measures justified by military necessity – such as the necessity to deprive enemy forces of important resources like fuel – that intent is purely speculative.
Civilian casualties are another common basis for war crimes accusations. But such casualties do not automatically prove a war crime, even when they are expected from an attack. What is prohibited is intending to kill or injure civilians or attack an enemy target after determining the unavoidable civilian casualties will be excessive compared to the anticipated military advantage.
This is why civilian casualties resulting from an attack on an enemy target are normally insufficient in themselves to conclude the attack was a war crime. This is not to say that the effects of an attack are irrelevant in this assessment. Indeed, attack effects can justify questioning the legality of an attack or pressing for more information. However, a credible war crimes assessment necessitates information related to the nature of the target, the military value of the target, the quality of the intelligence confirming the target, the implementation of civilian risk mitigation precautions, and the anticipated civilian risk. And when the enemy itself commits the war crime of human shielding – a pervasive Hamas tactic – the assessment is even more complicated.
War crimes and other international crimes like genocide and crimes against humanity are unquestionably deserving of condemnation and efforts to hold perpetrators accountable. But ignoring the inconvenient truth about how those international crimes are defined, or the complexity of establishing a commission will not advance the cause of preventing them now or in the future.
It is certainly not impossible for Israeli Defense Force personnel to commit war crimes, as no military is immune from such incidents. And, when there is a reasonable basis to suspect such misconduct, Israel is obligated to investigate and, where appropriate, prosecute those responsible. But when every attack is a war crime, when every measure taken to weaken Hamas is a war crime, when nothing Israel does is considered consistent with its rights and obligations under international law, the very notion of war crime loses meaning. One can be sympathetic to victims of war and troubled by the carnage of war. But war is quite often “lawful but awful,” and wanting something to be a war crime does not make it so.
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Geoffrey Corn is the George R. Killam, Jr. Chair of Criminal Law and the Director of the Center for Military Law and Policy at Texas Tech University School of Law. Corn is a Lieutenant Colonel (retired) having served 22 years in the Army as both a tactical intelligence officer and a military attorney. His career culminated as the Army’s senior law of armed conflict expert advisor. He has authored or co-authored more than 60 scholarly articles and numerous texts, including “The Law in War: A Concise Overview.“
