War Crimes, Syria, Israel, and Indiscriminate Rocket Fire

Note from Brant:  Rex Brynen has kindly allowed us to repost his excellent summary of 'war crimes' that he originally had up over at Facebook.  He also recommended this link for many of legalisticisms that people may want to dig into.

At the risk of upsetting just about everyone on all sides of every conflict in the Middle East and elsewhere, some clarity on what is--or is not--technically a "war crime":

1) Attacking a military commander or rocket launching site in a way that results in civilian casualties. Usually not a war crime, if the force use was appropriate to the military advantage gained (a very fuzzy/elastic concept) and the civilians were not deliberately targeted. Whether it is a sensible thing to do is another issue.

2) Imposing an embargo on key economic goods for the purposes of collective punishment of a civilian population. Usually yes. An embargo is permissible for other purposes, however.

3) Declaring a naval blockade, and stopping ships in international waters. Perfectly legal. However, the actual policy being supported by the blockade might be illegal (see #2).

4) Firing inaccurate rockets at civilian areas. Definitely a war crime. If they were accurate rockets fired at a military target it would probably not be a war crime, even if civilians were hit too (proportionality/military advantage).

5) Syrian army firing at FSA in a residential building that also contains civilians. Usually not a war crime (see #1).

6) FSA firing at Syrian troops in a residential building that also contains civilians. Usually not a war crime (see #1).

7) Indiscriminate Syrian aerial or artillery bombardment of rebel-held civilian neighbourhoods. War crime (see #4).

8) Denying Palestinian right to self-determination. Immoral, politically-short sighted, a violation of other aspects of international human rights law, but not a war crime per se.

9) Settlement activity in occupied territories. Yes, a war crime (Rome Statutes, Art 8.2.b.viii)

10) Deliberately using civilians as human shields. Yes, a war crime.

11) Conducting military operations in built-up areas where there are lots of civilians around. No. The difference between this and #10 is hard to discern in practice, of course, since it hinges on intent.

12) Hiding rockets in the basements of houses. Not a war crime. Bombing those houses is also not a war crime. Shooting those rockets is a war crime if they aren't really aimed, or are aimed at a civilian target. It is not a war crime if they are aimed at a military target or a strategic economic target.

13) Deliberately bombing UN facilities. Yes, war crime. Ditto Red Cross facilities, hospitals. Deliberate targeting of religious establishments and cultural institutions is a war crime too--UNLESS those installations have lost their protection by being used for military purposes (like weapons storage or firing positions). In that case bombing them is permitted.

14) Accidentally bombing UN facilities, etc. No, unless one could show some willful disregard for the presence of such facilities.

15) Car bombs and suicide bombers. Depends on the target (and hence proportionality/military advantage). See #4.

In general, international law clearly allows military forces to kill civilians. However, it places limits on that killing: it must not be deliberate, the use of force may not be indiscriminate, and the use of force (and collateral damage caused) must be proportionate to the military advantage gained.

Finally, the extent to which actions are or are not technically "war crimes" is a separate issue from the morality (and legality) of the larger purpose for which military force is employed (although that can get fuzzy if notions of aggression vs legitimate self-defence are introduced).

By: Rex Brynen