What Defines a War Crime in International Law?

by | Nov 4, 2023 | The Truscott Commentaries

Jabalia Refugee Camp in Gaza. Image: Google Earth

What Defines a War Crime in International Law?

by | Nov 4, 2023 | The Truscott Commentaries

Jabalia Refugee Camp in Gaza. Image: Google Earth

The contrast between World War II photos and two of the Jabalia Refugee camp in Gaza are evidence of what international law now defines as a nation acting in its own defense.

Republished with permission from Lucian K. Truscott IV

This is a picture of hundreds of potential war crimes, according to some who are accusing Israel of committing war crimes in Gaza.

Above is a satellite photo of the Jabalia Refugee Camp in Gaza. Imagine for a moment that you are a senior member of Israel’s Defense Forces, the IDF. This, or a satellite photo like it, is what Israel’s military officials and generals are looking at every day as Israel strikes back at Hamas for its attack on Israel on October 7.

This photo is from Google Earth, and it depicts the houses and apartment buildings and grid of streets before Israel’s aerial strike on Jabalia on Tuesday. Somewhere in that photo is the location of the Ibrahim Biari, the Hamas commander who planned the October 7 assault on Israel that killed 1,400 Israeli citizens, the great majority of whom were civilians.

Israel had intelligence that Biari, along with a number of his Hamas lieutenants, was hiding in a Hamas headquarters bunker. But where is it? Beneath which one of those houses, apartment buildings, streets and parking lots is the bunker that held him and his fellow Hamas fighters?

What do you do if you are an Israeli military official and you determine that Biari’s location is in Jabalia? As you can see by the satellite photo, practically every square inch of Jabalia is occupied by a civilian home or business or street. How do you kill your enemy in such a situation?

Right now, Israel’s army is inside the borders of Gaza, but they have not yet entered Gaza City or Jabalia or any other city or town, so Israel does not have any soldiers on the ground in Gaza they can send into the Jabalia refugee camp to kill Biari, even though on Tuesday, they knew where he was. They know that Hamas commanders, and other Hamas fighters, change their locations frequently in order to confound Israel’s intelligence services which are trying to locate them.

So, if Israel determines Biari’s location on Tuesday, but does not have the kind of special operation forces like the ones we used to kill Osama bin Laden in Jabalia or even close to it, what do they do with that information? If they don’t act on it, they know Biari will move, and they’ll have to get the intelligence to nail down his location all over again. Israel is not just seeking vengeance on this Hamas commander for the October 7 attack. They are trying to prevent him from doing it again.

Somewhere in Tel Aviv or Jerusalem or on an air force base in the Sinai desert, a bunch of Israeli intelligence officers and air force targeting specialists sat down with a map like the one above, and knowing Biari’s location, they prepared an airstrike to take him out. Looking at that satellite photo, you can see with your own eyes the dilemma Israel has faced every day since Hamas launched its attack. They can see as well as you or I that no matter where their bombs hit within that grid of streets and houses, some civilians will be killed.

But was ordering and carrying out the airstrike that killed Biari a war crime because it also killed an unknown number of civilians?

The answer to that question is no. Certain facts are involved in determining whether something that happens in a war is a crime. First among them is, who is the aggressor? In this case, it was Hamas with its attack on Israeli civilians on October 7, which was a war crime under international law. When Hamas rocket launchers fired more than 5,000 missiles into Israel, each and every one of them was a war crime. When Hamas terrorists broke through the fence defending Israel from Hamas militants inside Gaza, they invaded a sovereign nation militarily, which is a war crime. When they killed civilians with AK-47’s and RPG-7 rocket propelled grenades or any other weapon, it was a war crime.

So when Israel hits back with rockets and ground troops, is that a war crime? The answer is no, because under international law, any nation attacked militarily has the right to defend itself. How Israel defends itself determines whether its forces are committing war crimes.

If you are a nation like Israel that has sophisticated weapons capable of precision targeting like smart bombs and missiles and 155 mm artillery that can fire smart rounds that are guided to hit a precision target, then you are obligated to use all that technology to the best of your ability to prevent as many civilian deaths as you can. If your troops engage in ground combat with the enemy, in this case Hamas militants, ground forces have the same obligation.

For example, if Israeli forces are being fired at from within a building they can see with their eyes, or with drones, or on satellite imagery, they can fire back with small arms or artillery or even an airstrike to defend themselves. If civilians are killed along with the Hamas fighters who were shooting at them, it is not a war crime.

Similarly, if Israel discovers that a Hamas commander like Biari is in a bunker under a parking lot or a building within Jabalia, Israel’s military is entitled to bring a precision airstrike on that area in order to kill Biari and defend themselves from Biari commanding another assault on Israel. Israel is not allowed, under international law, to “carpet-bomb” the neighborhood or city where Biari is hiding. Israel is obligated by law to use the best intelligence it has and its precision munitions to accomplish its goal.

Israel cannot do what Nazi Germany did to London and Allied forces did to Dresden and Tokyo and then to Hiroshima and Nagasaki when they leveled whole cities with bombers carrying conventional and nuclear weapons.

Here is a photo of what Dresden looked like after Allied bombing in World War II:

Aftermath of Allied bombing of Dresen in WW2. Image: Wiki Commons

Here is a photo of Hiroshima after the U.S. nuclear strike:

Hiroshima after the atomic bomb. Image: Wiki Commons

Here is a satellite photo of the area in Jabalia before Israel’s airstrike that targeted Ibrahim Biari on Tuesday night, compared to the aftermath of the IDF strike. [Drag the slider left and right to compare the images.]

It’s difficult to determine how many civilian buildings were hit and destroyed in the airstrike, and it is certain that several hundred civilians lost their lives along with Biari and his Hamas fighters who were in the tunnel complex beneath them.

The contrast between the World War II photos and the two satellite photos above are evidence of the difference between barbarity and what international law now defines as a nation acting in its own defense. Since before the time of Alexander the Great, armies have ravaged and destroyed cities and killed civilians in pursuit of conquering and seizing territory. For thousands of years, that is the way civilization made its way into the future, with mass death and destruction and enslavement of those conquered.

Today, we have the International Criminal Court and a set of international laws agreed to in the U.N. that attempts to police how nations fight wars. But as we can see by what Russia did in attacking Ukraine on February 24, 2022, and what Hamas did in attacking Israel on October 7, 2023, and what both Ukraine and Israel have been caused to do to defend themselves since then, we’ve got a long way to go.

Lucian K. Truscott IV

Lucian K. Truscott IV

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.

You can read Lucian Truscott's daily articles at luciantruscott.substack.com. We encourage our readers to get a subscription.

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