22 May When the Left Shoots Itself in the Foot (IHL Version)
Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:
Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”
I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.
Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.
At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals:
Disguise it whatever propaganda terms you want, but the clear meaning of his threat to kill civilians is plain. [Simply dishonest. Watch the video yourself — the comments start at about the 9:00′ mark.]
Yes I’m sure you would talk about Hamas willingness to “accept civilian collateral damage.” [I tried to explain that, in fact, Hamas would not be committing a war crime if it launched a proportionate attack. Fell on deaf ears.]
No. *You* are accepting propaganda justifications at face value. Lebanese villages are not military targets. [No response when I pointed out rocket launchers are military targets., even when located in a village.]
Israeli army habitually transports soldiers on civilian public transport. Were Hamas bus bombings also “potentially legal”? [I tried to explain here that we had to distinguish between war crimes and violations of domestic law. The correct answer, of course, is that such attacks might not be war crimes (if they were proportionate) but would still be murder under Israeli law, because Hamas does not qualify as the armed forces of Palestine and thus does not have the combatants’ privilege to kill. That was obviously too “legal” for Winstanley, because…]
“Complicated” — yea right. Wasn’t so complicated for you to declare Israeli attacks on civilians “potentially legal”. [Not what I said, of course. I said Israeli attacks on military targets that incidentally kill civilians — the kind of attacks Ya’alon was discussing — were potentially legal, depending on their proportionality.]
And yet you use all your lawyer’s tricks to avoid a simple question: were Hamas bus bombings “potentially legal”? Y/N [By “lawyer’s tricks,” Winstanley meant the distinction between war crimes and crimes under domestic law. Apparently, all legal questions must have a simple answer — one that satisfies Winstanley’s moral sensibilities.]
And give YOU a break?!? You are the one sliding into my mentions uninvited. If you want a break, I suggest you piss off. [I said “give me a break” when Winstanley continued to insist, contrary to multiple tweets, that I was arguing it was legal for Israel to deliberately attack civilians.]
And that was that.
I don’t know whether Winstanley’s selective quoting of Ya’alon reflects dishonesty or simply a complete lack of understanding of IHL. Regardless, my twitter exchange with him is very frustrating, because anyone who reads Opinio Juris regularly knows how critical I am of Israel and the IDF — and never more so than during Operation Protective Edge. I am not Winstanley’s enemy; far from it. Yet he could not be bothered to engage with me rationally, much less acknowledge that he might have misunderstood Ya’alon’s comments. (Which seems to suggest dishonesty, not lack of understanding.) Instead, he immediately branded me some kind of reactionary Israel apologist and repeatedly attacked me. Zachary Korman nailed it in a tweet: “@kevinjonheller is under attack for being pro-Israel (which he isn’t). This is the twitter equivalent of friendly fire.”
The problem with the exchange isn’t that Winstanley criticised me. I have a pretty thick skin after nearly a decade of blogging. What bothers me is that Winstanley’s stubborn insistence on misrepresenting Ya’alon is actually profoundly reactionary, because it obscures all of the possible legitimate criticisms of what Ya’alon said. He could have denied that there was a rocket launcher in the civilian house and criticised Israel for not taking adequate precautions to avoid attacking civilians. He could have accepted that a rocket launcher was in the house but insisted that the incidental damage to civilians was excessive in relation to the military advantage of taking out a single rocket launcher. (Which is my position, as I noted above.) He could even have argued that Ya’alon was simply lying about the rocket launcher, because the attack was actually an example of the “Dahiya doctrine” (which he obliquely mentioned in a different tweet) in action.
Any of those criticisms could have led to a productive debate about Israel’s problematic approach to IHL — and perhaps even to a critical examination of IHL itself. But instead Winstanley insisted on misrepresenting what Ya’alon said, thereby not only alienating anyone who believes criticism should take its object seriously, but also misleading his readers about the basic principles of IHL.
And that is my basic point in this post. Winstanley’s version of pseudo-left critique may be great for stirring up readers who are already inclined to believe that everything Israel does is illegal. But it is useless for persuading anyone who doesn’t — including people like me who are otherwise natural allies. Nothing is accomplished — literally nothing — by caricaturing the views of those we disagree with or by distorting the rules of IHL. In so cavalierly doing both, Winstanley simply becomes the mirror image of Israel apologists who insist, literally as a matter of faith, that Israel is incapable of using force illegally. The truth, of course, is somewhere in between: Israel often violates the rules of IHL, sometimes shockingly so (the carpet bombing of Shujaiya); but it equally often complies with IHL, however grisly the results of its violence. Intelligent critique — critique that has the potential for convincing more than just the anti-Israel true believers — must always carefully distinguish between the two. It’s called intellectual honesty.