Do dead civilians change if incidents are viewed as war crimes?

According to the laws of war, whether a violation of the law occurred or not is supposed to depend strictly on the information the military commander in question had at the time he gave the order.

January 14, 2018 17:50
3 minute read.
A GIRL WALKS by the remains of a house in the northern Gaza Strip that was destroyed.

A GIRL WALKS by the remains of a house in the northern Gaza Strip that was destroyed during Operation Protective Edge.. (photo credit: MOHAMMED SALEM/REUTERS)

The outcome of incidents in war, especially where there are dead civilians, impacts whether the public views them as a war crime or not, a new study is expected to argue.

The study’s findings could have profound significance as Israel, the US, human rights groups and the International Criminal Court are engaged in a dialogue over a variety of messy alleged war-crimes cases.

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These cases in turn could massively impact Israel and the US, both legally and diplomatically.

Israel tends to allege that anti-Israel or “outcome bias” – the bias of knowing how many civilians died in a military operation after-the-fact – unfairly impacts critiques of its military conduct.

According to the laws of war, whether a violation of the law occurred or not is supposed to depend strictly on the information the military commander in question had at the time he gave the order – not on the unknowable outcome.

In contrast, UN fact-finding commissioner Mary McGowan Davis famously concluded in 2015 that the IDF had likely committed war crimes in the 2014 Gaza war on the basis of continued air force bombings in which the number of Palestinian civilian casualties steadily climbed.

Israel’s critics tend to allege that IDF investigators have pro-soldier biases and try to serve as a fig leaf for laws-of-war violations.
According to the laws of war, military prosecutors are not allowed to show any favoritism in judging a case against their own soldiers and officers.

Critics highlight the small number of indictments filed by the IDF against its own soldiers relative to the number of incidents in which civilians died.

Authored by Hebrew University law professor Tomer Broude and Melbourne University law professor and former IDF lawyer Inbar Levy, the study presents multiple hard or close-call war cases to both Israelis and Australians. It then checks if they give different judgments about whether a targeting decision was legal based on being told different outcomes.

The authors presented 337 people with three cases to judge.

One case mirrored the controversial killing of a famous Irish militant by British soldiers, where the soldiers made claims that they thought the militant presented a danger, but it turned out that the militant was unarmed.

Two other cases were in the realm of targeted killings.

One was regarding the targeted killing of an ISIS terrorist, where the commander ordering the attack knew civilians might be hurt; the other mirrored the German bombing of a Taliban tanker which led to a large number of unexpected civilian deaths.

In presenting preliminary findings to a group of academics on Thursday, the study’s authors implied that their findings would likely prove that there was outcome bias – that participants in the study were more likely to call a military action illegal if they knew civilians had died. The authors asked The Jerusalem Post not to publish the specific percentages and conclusions they had presented as they were viewed as preliminary.

A UNRWA lawyer present asked the authors to also look into the possibility of bias by military prosecutors, being more likely to give their fellow soldiers the benefit of the doubt due to being part of the same army.

Former IDF international law division lawyer Nimrod Karin said that the study was an extremely difficult endeavor. He said that it’s hard to objectively trace back what the military commander ordering a strike knew at the time of the order, and to assess that moral judgment and the situation’s proportionality, which are not well-defined by any kind of case law.

Karin said that some more recent cases, like the 2012 Gotovina ruling of the International Criminal Tribunal for the former Yugoslavia, had tried “looking at preparatory stages building up to proportional assessments” and asking whether estimates about how many civilians in an area were reasonable.

He also said that the authors should consider differentiating between “reactionary fire versus preplanned targeting,” contending that preplanned targeting might be less susceptible to questions about bias than air strikes ordered in real time to respond to suddenly being fired upon.

Further, he said that the study should try to “describe decision-making processes taking place and describe where the outcome bias is taking place – there is very little writing about the targeting decision-making process.”

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