Guns and Butter Blog on Hiatus
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Dear Mr. Burston:
As happens annoyingly often, you’ve written a column that I wish I’d written myself. Thanks for the good writing and the astute analysis.
I have one quibble with your argument regarding recent events in Beit Hanoun: You seem overly ready to convict the IDF of a war crime in the killing of 19 Palestinian noncombatants, considering that the law on the subject is highly ambiguous.
International law indeed requires that military attacks be directed only at military targets. Human Rights Watch contends that the standards used by the IDF in aiming and timing its artillery attacks are such as to constitute a war crime; but I don’t think they successfully make that case. The problem is that while international law does require certain intentions in targeting, the relevant treaties do not establish any particular standard for “quality control” in executing attacks; that is, there is no well-defined boundary between “legitimate” unintentional killing of civilians and illegitimate attacks carried out with reckless disregard for civilian deaths.
Lacking such a standard, there is no reliable way to judge the IDF’s shelling of Gaza on purely objective grounds.
According to HRW, “the IDF confirmed that it had fired 12 artillery shells at the site, having missed its intended target 500 meters away.” It would seem to me that if the shells that killed the Athamna family fell 500 meters from their designated target, the prima facie interpretation of the incident is that it was a tragic but non-criminal error. Since the legality of an attack is based on its intention (that is, its target) the attack does not become a war crime simply because of an error in aiming weapons – as long as a good-faith effort was made to procure accurate weapons and aim them properly.
HRW further claims that “the evidence suggests that Israel’s day-old information that homemade rockets had been launched from the area, with no specific information that rockets continued to be launched from the area, was an insufficient basis for considering the area attacked to be a legitimate military target.” This claim is problematic for two reasons: first, requiring “specific information” about Kassam firing in “real time” would make most forms of military interdiction of such firing virtually impossible, as Kassam crews arrive, set up their launcher, fire their rocket, and leave again within a very short span of time. The best that can possibly be done is to identify areas that are routinely used for firing Kassams and are not overly close to civilian dwellings or facilities, and then to try to time interdiction fire to achieve best results with minimum risk to the innocent. The second problem with HRW’s claim is that it is completely irrelevant: If the IDF artillery was off-target by 500 meters, the timing of the shelling was not the primary cause of the tragedy. Presumably, had the shells been aimed accurately, tragedy would have been averted even if nobody was firing Kassams from the target zone at the time.
Ultimately, the determination of whether the IDF shelling of Beit Hanoun constituted a war crime can be made only on somewhat subjective grounds:
- Did the IDF procure and use weapons that are normally considered accurate and reliable?
- Did the IDF select targets taking proper account of the accuracy and precision of its weapons?
- Did the IDF properly train its artillery crews to avoid targeting errors?
- Did the IDF select targets based upon the best intelligence that could practicably be obtained?
- Did the IDF select what it believed to be the best available tactics for combating Kassam fire while minimizing danger to innocent Palestinians?
And lastly - and perhaps most importantly:
- Did the IDF express and promote an attitude of proper care to avoid killing noncombatant civilians whenever possible?
(This last question is really the key: If the IDF acted with the proper attitude and intentions, it is innocent of war crimes even if some soldiers botched an operation or equipment malfunctioned; but if the IDF exhibited reckless disregard for the lives of innocent civilians – or, indeed, intended that innocent civilians be killed – then Beit Hanoun was a war crime.)
I cannot confidently assert that the IDF is entirely innocent regarding the Beit Hanoun tragedy; I simply do not know the answers to the questions I’ve asked above. (I’m fairly sure that the IDF’s artillery is normally accurate and reliable; but as I have yet to see an explanation of why the shells were fired inaccurately, I’ll assume that even this question remains open for now.) But until and unless answers to these questions do become available, it is unfair to “convict” the IDF of a war crime in Beit Hanoun. There is, I believe, a reasonably high probability that the shells were fired off-target due to legitimate (i.e. non-reckless) human error; and if this is the case, no war crime took place even given the sad results of the shelling.
Best regards,
-Don Radlauer
Thanks very much, Don, for your thoughtful letter. I believe that the crime here was not that of the gun crew, nor of the spotters, but of [Israeli Defense Minister Amir] Peretz and senior officers in the Southern Command and the General Staff, who lobbied for and gave the green light to artillery shelling even though more accurate means were available, and even though they had been warned – both by precedent in Gaza and Lebanon, and by predecessors in senior posts – that something very much like Beit Hanun was a very likely possibility.
Best regards,
Bradley
Dear Bradley -
Thanks for your kind response.
Indeed, if Peretz and the relevant IDF commanders believed that more precise means were available to combat Kassam launches, the decision to use artillery was problematic – and perhaps even criminal. That leaves us with two key questions:
- What information did Peretz and the generals have regarding the likelihood of a Beit-Hanoun-style disaster based on extensive use of artillery, particularly in comparison to the risks involved in using alternative means? What information did they have regarding the effectiveness of the various means of attack, as well as the risk to our own forces (e.g. from in-person operations)? (It may also be relevant to consider that if the Beit Hanoun disaster occurred because of human error, other methods of attack might be equally prone to human error.)
- Assuming that the answer to (1) would lead a reasonable person (generally defined as someone closely resembling me) to choose something other than artillery, why did our military leaders choose artillery?
I’m not sure that there really are measures available to the IDF that would effectively combat Kassams without endangering Palestinian civilians – particularly given that (as I see it) a large part of the motivation behind the Kassams is to provoke Israeli responses that would lead, sooner or later, to a Beit-Hanoun-style “massacre”. What method do you think would be both effective and safe?
At the same time, I must admit that I don’t have a great deal of confidence in the decision-making abilities of our political or military leaders; too often they seem to be playing to the local audience (which, judged by Haaretz or JPost forum participants, is rather bloodthirsty) rather than understanding the implications of their decisions in a broader context. But lacking a detailed answer to the questions above, I’m still not convinced that Beit Hanoun was a war crime, as opposed to a sad and stupid – but non-criminal - fuck-up.
Best,
-Don
Lynne Stewart’s sentencing is our crystal ball for the return of September 10th America. Indeed, as noted here yesterday, it even featured a plea for mercy from former top Clinton Justice Department official Jo Ann Harris, who championed an anti-American activist lawyer (unanimously convicted of terrorism offenses by a jury of twelve New Yorkers) while deriding the government’s efforts as “unwarranted overkill.”
If the Arabs do not want a binational solution or any form of peace, then they will not stop until Israel is fully destroyed; so doesn’t giving them land just speed up the “wiping israel off the face of the earth” process?

Gun-totin' epicurean misanthrope
Seth CooperBig-gunned legalist-turned-blogger.
Don RadlauerCat-junkie with a Browning High Power and a sniper wife.
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