US Joint Chiefs chairman schools Amnesty and HRW in international law

Yesterday, Gen. Martin Dempsey, Chairman of the Joint Chiefs of Staff, gave a lecture at the Carnegie Council for Ethics. He was asked by an audience member to comment on IDF's ethics during Operation protective Edge, and here was his answer:

I actually do think that Israel went to extraordinary lengths to limit collateral damage and civilian casualties. In fact, about 3 months ago we sent, we asked [IDF Chief of Staff] Benny [Gantz] if we could send a lessons learned team – one of the things we do better than anybody I think is learn – and we sent a team of senior officers and non-commissioned officers over to work with the IDF to get the lessons from that particular operation in Gaza. To include the measures they took to prevent civilian casualties and what they did with tunneling, because Hamas had become very nearly a subterranean society. And so, that caused the IDF some significant challenges. But they did some extraordinary things to try to limit civilian casualties to include calling out, making it known that they were going to destroy a particular structure. Even developed some techniques, they call it roof knocking, to have something knock on the roof, they would display leaflets to warn citizens and population to move away from where these tunnels. But look in this kind of conflict, where you are held to a standard that your enemy is not held to, you’re going to be criticized for civilian casualties. So I think if Benny were sitting here right now he would say to you we did everything we could and now we’ve learned from that mission and we think there are some other things we could do in the future and we will do those. The IDF is not interested in creating civilian casualties they’re interested in stopping the shooting of rockets and missiles, out of the Gaza Strip and in to Israel, and its an incredibly difficult environment, and I can say to you with confidence that I think that … they acted responsible.

This came right after Amnesty released an incredibly biased report charging Israel with war crimes, claiming that Israel violated the principles of distinction and proportionality when fighting in Gaza, because, they say, the military targets Israel was aiming at - if there were any - were not valuable enough targets given the number of people who were killed and injured. But Amnesty made that determination without any military expertise and without even knowing what the military targets were - nothing in their 50 page report mentioned anything about tunnels, weapons bunkers or rocket launchers, which would clearly be military targets.

Under international law, who decides whether a military object can be targeted when it is being hidden among civilians?

The answer is: not Amnesty or HRW.

As my links above show, under international law as noted by the ICRC, the decision as to whether something is a valid military target, as well as the decision as to whether the expected collateral damage is justified by the value of the target, is based on what a reasonable military commander would do with the information he has at the moment of the attack.

In order to find that the commander has committed a war crime, the bar is set quite high. ICRC commentary on art 85 of the Additional Protocol states:

The accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the ("criminal intent" or "malice aforethought"); this encompasses the concepts of "wrongful intent" or "recklessness"....

It is also the military commander who can decide proportionality. The Prosecutor of the International Criminal Tribunal for the former Yugoslavia determined who can make that decision:

The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants. … It is suggested that the determination of relative values must be that of the “reasonable military commander”. [Final Report to the Prosecutor by the Committee established to review NATO bombings in Yugoslavia para. 50-1]

General Dempsey is a reasonable military commander. Unlike Amnesty and HRW, he knows what international law requires. He feels not only that Israel acted in an exemplary manner, but that US forces could learn from Israel how to deal with these new kinds of terrorist tactics that so cynically use the civilian population for their purposes. He sent people to Israel to talk to their soldiers and understand the issues.

If the US military had even the slightest indication that Israel was violating international law, they would not be sending their own experts to learn from Israel's experiences. 

Real-life international law, as ICRC documentation shows, comes very often from the military manuals of nations. Those manuals are written so that military commanders know what they may or may not do under the laws of armed conflict. They are written for the real world, not for the make believe world of Amnesty and Human Rights Watch where all military activity is considered evil by default.

General Dempsey knows more international law than the entire staffs of Amnesty and Human Rights Watch combined. So do IDF commanders. They know that decisions need to be made in the field, sometimes with limited information, to protect not only civilians on the enemy side but also one's own soldiers and one's own civilians - two factors that do not come into play in the deeply flawed reports that HRW and Amnesty release.

The more one researches what real human rights law is, the more one sees how utterly ignorant and indeed malicious the "human rights" organizations are.