28 May Overheard Amidst the Bombs
[Frédéric Mégret is a Full Professor and Dawson Scholar and co-Director of the Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University.]
Photo credit: AP Photo/Adel Hana
Concerned member of the public (CMP): Gaza! Civilians killed! Lots of them! WAR CRIME!!!
LOAC expert: Well, not really. Actually it’s much more complicated than that. Let me explain how this works…
CMP (still reeling from images of charred bodies of children): Ok, I don’t think so, but go ahead…
LOAC expert: Well, in the jus in bello tradition, specifically in article 51(5)(b) of API to the GCs…
CMP: Wait… First, don’t go all Latin on me. Second… Seriously, what??
LOAC expert: All right. The most important thing is that only deliberate killing of civilians or attacks that are indiscriminate, for example, attacks that may be expected to cause incidental loss of civilian life which would be excessive in relation to the concrete and direct military advantage anticipated are war crimes…
CMP: … You’re… joking, right? How does this even begin to speak to what I am seeing with my very eyes?
LOAC expert: No, I am not joking. It might be a war crime, of course, but we should not rush to conclusions. This is going to be exceedingly hard to prove. Accidents do happen in the fog of war and not every killing of civilians is disproportionate unfortunately. At any rate, the IDF is very serious about the laws of war, you know.
CMP: So you are telling me that as far as IHL is concerned, it is far worse to kill one civilian deliberately than a hundred collaterally? How does that even make sense?
LOAC: Well, killing one civilian deliberately is definitely a war crime. I guess collateral deaths are an unfortunate fact of war. But I wouldn’t be so negative about it. I’d rather think of the one life saved than the 100 lives lost. Call me an idealist!
CMP (visibly upset): Actually, calling you an idealist was the furthest thing on my mind…
LOAC: … Mind you, it would be a lot worse if IHL wasn’t there. There could have been many more victims. At least in IHL you can’t deliberately and directly target civilians…
CMP: … But you can still effectively harm them in large numbers “indirectly,” not to mention the colossal psychological harm or the damage to the infrastructure! Ok, just for the sake of argument since you seem intent on arguing this to death in the midst of a real, crying political emergency, isn’t the compound effect of all these deaths what matters, and doesn’t it tell a very different story, one of overall destruction, violence and victimization? Can you at least acknowledge that there is a piece missing in your story?
LOAC (slightly irked): Actually, we humanitarians believe it is important to decontextualize violence and strip it bare to a series of ad hoc kinetic sequences. Helps keep the legal analysis focused.
CMP (judgment clearly impaired by vision of centuries of unequal imperial violence): But then surely it makes a difference that, time and time again, most victims are on one side, always the same?!
LOAC: Sorry, we do not comment on relative ability to target.
CMP: All right, let me try another tack. Surely it makes a difference here that one party is a group of violent terrorists taking their population hostage – that’s how they are being portrayed – and the other is a powerful state with world-class military technology?
LOAC: Well, I’m not authorized to speak on matters of politics. Again though, I know this is going to sound a bit counter-intuitive, but it’s almost the other way round. The state has a lot of the obligations but also a lot of the prerogative to use force. Non-state groups have no business resorting to violence in the first place. So I’m afraid they can never get it fully right even if they wanted to. Funny how that works, isn’t it? But the state, ah well that’s a different thing. The state is a thing of beauty you know, it has courts, it can ratify treaties, it can be internationally responsible…
CMP: … Precisely. I seem to remember there was some concern about Palestine being denied statehood at every turn…
LOAC expert (looking genuinely puzzled): You’d have to go to the general public international law bureau to complain about that, top floor, spacious corner office. I’m sure they’re working on it.
CMP: Ok, but then at least clearly the state has particularly onerous obligations to minimize civilian casualties above and beyond the letter of the law and what it can get away with? Or are you telling me the law is basically a license to kill the innocent?
LOAC: I am certainly not telling you that. Yes, the state ought to be careful. But look, it’s not the state’s fault if terror groups place military hardware next to civilians. Sometimes you just have to do what you have to do… We couldn’t impose humanitarian conditions so onerous as to make the pursuit of war impossible, now could we? No one would take us seriously!
CMP: But what if there are civilians everywhere? At any rate, shouldn’t it make a difference even if that is the case that the violence has an origin, that it is deeply embedded in patterns of oppression?
LOAC expert: Oh dear, we really don’t deal with jus ad bellum issues here, they’re an entirely different office you see.
CMP: This sounds counterintuitive and wrong on so many levels….
LOAC: Look, consider the bright side. Bottom line is, the laws of war seek to reconcile the necessities of war with the principle of humanity. This is official, you can quote me on it. I know it sounds a bit theoretical, but this is what we do, day in and day out..
CMP: You’ve obviously thought about this a lot, haven’t you?
LOAC: Hmm, yes, I guess you could put it that way, for a few hundred years. We literally invented it. I hope you can see some of the beauty.
CMP: Who did you say you were again? And anyhow, who are you to say what a war crime is?
LOAC: It doesn’t matter who I am. It is just-the-law. I didn’t make it. It is what it is.
I am grateful to Helen Kinsella, Rebecca Sutton, Naz Modirzadeh, Ioannis Kalpouzos and Valentina Azarova for feedback on previous versions of this post.