With the caveat that I won't play the numbers game other than to point out that Hamas' Death Ministry doesn't list combatant deaths. But let's assume that 15-25% of the 30-40000 Hamas terrorists are now KIA. That means 4500 to 10000 of the 18000 claimed fatalities (25-54%) are combatants. Then there are the 123 KIAs listed by Hamas whose names also appeared in 2014. That you take Hamas' KIA figures at face value and also take at face value the anti-Israel ICRC that refuses to ask Hamas to visit the hostages also gives readers the roadmap to your double standard only for Israel war crimes conviction.
These extracts from Iraq veteran David French's NYT article (https://www.nytimes.com/2023/10/12/opinion/israel-hamas-isis-gaza.html) illustrate my point about the UN war crimes statute's proportionality clause and your double standards applied only to Israel and nobody else. He and urban warfare expert John Spencer know much more than both of us, so I defer to them:
The Mosul comparison: Israel doesn't have the luxury of time that the US-led coalition had. So applying the Mosul casualty numbers to Gaza is another double standard shell game.
"There is a model for Israeli victory in Gaza, but that model also illustrates the magnitude of the challenge. In the fall of 2016, around 100,000 Iraqi security forces and their allies massed outside Mosul and faced a daunting task: to remove the Islamic State from a vast, densely populated city when that army was deeply embedded in the city and had been able to prepare elaborate defenses.
Compounding the problem were that the civilian population, unlike during other recent urban battles in Iraq, largely remained in the city and that ISIS had no desire to facilitate a civilian evacuation. When the United States entered Falluja in 2004 during its war against Al Qaeda in Iraq, a vast majority of civilians had already fled. When soldiers and Marines engaged insurgents in street battles there, there were far fewer civilians in the zone of combat.
Mosul, by contrast, was largely fought in and around the civilian population and was at the time quite possibly the largest and deadliest urban battle since the end of World War II. Iraqi soldiers — supported by American air power — assaulted a city of more than one million people. The resulting battle took nine months to complete; killed thousands of ISIS fighters, by most estimates; cost the Iraqi security forces thousands of casualties; and, despite considerable efforts to protect noncombatants, killed up to 11,000 civilians. But Iraq won, ISIS lost, and ISIS no longer controls Mosul.
How does this fight compare with a battle in the heart of Gaza? The Israel Defense Forces will be better trained and more prepared than the Iraqi security forces — with a greater capacity to protect noncombatants — but if Israeli military history informs the present situation, the Israel Defense Forces will not have the luxury of time. It will almost certainly have to execute its major combat operations in much less than the nine months it took to defeat ISIS in Mosul."
From French's interview with John Spencer about how Israel follows the laws of war by conceding the defenders' first punch advantage, to its cost:
Israel’s military mission is inseparable from its legal obligations. When a nation abides by the law of war, which Israel requires its soldiers to do, it fundamentally changes the way it fights and the experiences of its soldiers on the ground.
For example, a nation that disregards the law of war often approaches urban combat by destroying as much of the city as it can to weaken defenses before the attack and then, when it enters the city, it presumes structures are full of enemies and destroys buildings at will.
When a nation complies with the law of war, the presumptions switch. Civilian structures are presumed to be benign unless solid intelligence or hostile action demonstrates otherwise. As a practical matter, this means that air power alone is insufficient for the job. As Spencer told me, aircraft “can’t see through steel-reinforced concrete,” so tanks and troops have to enter a city to truly clear it.
But when they do, the defender gets an initial advantage. As Spencer said, the “attacker has to walk down the street and take a punch to the face.” Then it can respond. Israel understands that reality and adjusts its tactics accordingly, often leading with armored vehicles that can take the punch without incurring casualties.
The precision paradox:
"Spencer called the widespread destruction inflicted by precise weapons the “precision paradox.” ...or spiderwebbing. Imagine if you have 10 ISIS fighters in one building. Iraqi forces call in an airstrike, and U.S. forces hit the building with a missile or bomb, but it doesn’t kill every fighter in the building. The remaining fighters scatter to two or three nearby buildings, which are then precisely targeted by additional munitions. The result is a form of slow-motion demolition, in which each strike might be quite precise but the cumulative effect can eventually make the city look as if it had been carpet-bombed.
We’re already seeing the phenomenon in Gaza. We are witnessing nothing like the immediate mass destruction of an indiscriminate attack, but large numbers of precision attacks can still inflict extreme (and deadly) damage.
If civilians aren’t evacuated from the combat zone, the intensity of combat makes significant civilian casualties inevitable, even if Israel fully complies with the law of war. I also spoke this week to James Verini, a contributing writer to The Times Magazine, who wrote “They Will Have to Die Now: Mosul and the Fall of the Caliphate,” perhaps the definitive on-the-ground account of the fight for Mosul, and two things he said stood out in the conversation.
First, because precision weapons sometimes miss and intelligence often fails, airstrikes inevitably inflict serious collateral damage, including civilian casualties. Second, as the fight drags on and ramps up in intensity, concern for civilian lives often diminishes. That was the pattern for the less-disciplined Iraqi security forces, but we can’t for a moment presume that Israeli soldiers are superhuman. Most of them are draftees and reservists. They’re subject to the same fears and temptations under extreme stress and anger as any other soldier in any other army.
Then there’s the factor of time. Spencer observed that Israel always fights against the backdrop of a ticking clock. The United States is an independent economic and military superpower. We possess the world’s most powerful military and the world’s most potent economy. We have the luxury of fighting on timetables we set. If we want to slow down and take nine months to clear a city, we can take nine months to clear a city.
Israel possesses a powerful military and a strong economy, but it is still ultimately a dependent power. It cannot ignore international (and especially U.S.) pressure. In addition, calling hundreds of thousands of reservists out of the work force weakens the economy. In every major conflict since its war for independence, Israel has had to race to accomplish its military objectives before international pressure forced a cease-fire. The sheer scale of Hamas’s atrocities may increase the patience of the international community for an Israeli offensive, but that patience has never been unlimited.
Put all this together, and you can immediately perceive Israel’s asymmetric challenge. Hamas scorns the law of war. The reports of its intentional mass killing, mutilation, rape and civilian hostage taking are evidence enough of that fact. Israel legally and morally obligates the Israel Defense Forces to comply with the law. As a result, civilians become one of Hamas’s principal military assets. The presence of civilians gives Hamas the ability to punch first in any given street fight. The presence of civilians raises the bar for approving airstrikes or any other use of long-range weapons. And when civilians die, Hamas uses their deaths to inflame the international community and to help run out the clock on international patience for Israeli military operations.
Two legal concepts you misunderstand: proportionality and distinction".
As the war continues and as the destruction mounts, you will hear a number of voices condemn Israel for a disproportionate response, but many of these critics fundamentally misunderstand what proportionality means in the law of war. The U.S. Army’s “Law of Land Warfare” field manual — which is deeply grounded in the international law of armed conflict and governed our urban operations in Iraq and Afghanistan — defines the legal obligation of proportionality as requiring “commanders to refrain from attacks in which the expected loss or injury to civilians and damage to civilian objects incidental to such attacks would be excessive in relation to the concrete and direct military advantage expected to be gained.” It also requires that commanders “take feasible precautions to reduce the risk of harm to civilians, other protected persons and civilian objects.”
Proportionality does not require the Israel Defense Forces to respond with the same degree of force or take the same proportion of casualties as Hamas. In addition, as the manual states, “the proportionality standard does not require that no incidental harm results from attacks.” If you’re a soldier on patrol and someone fires at you with a rifle, you don’t have to respond with a rifle. You can use a tank round or a missile in response, unless you have reason to believe the tank round or missile will cause extraordinary collateral damage. But if you’re taking fire from a single house, proportionality prohibits you from destroying the entire block. Throughout the war on terrorism, American forces used powerful, longer-range weapons to attack individual targets. That does not violate the laws of war.
Hamas abandons the principle of distinction between civilians and combatants. Hamas itself has said civilians are its main asset:
There is a similar public ignorance problem with the concept of distinction, which “The Law of Land Warfare” defines as requiring combatants to distinguish “between combatants and military objectives on the one hand and civilians and civilian objects on the other in offense and defense.” Distinction requires soldiers to separate themselves from civilians by wearing uniforms, for example, or by fighting from marked military vehicles. It prohibits militaries from fighting from places like hospitals, schools and mosques.
Hamas disregards the principle of distinction. Its fighters take aim from civilian buildings while wearing civilian clothes and using civilian vehicles. This presents an attacking military with serious targeting problems. It is easy to identify, say, an armored personnel carrier as a military vehicle. But what if there are four Toyota Tacomas in the street and only one is full of Hamas fighters?
But here’s the key point: When Hamas abandons the principle of distinction, then Hamas is responsible for the civilian damage that results. If Hamas fights from a hospital — or stores munitions in a hospital — damage to that hospital is Hamas’s responsibility. If Hamas fighters shoot at Israel Defense Forces from a home that contains a Palestinian family, then Hamas is responsible for the civilian casualties if that family is harmed in the resulting exchange of fire.
There is also the unique military legal doctrine of siege warfare. On Monday, Israel announced a “complete siege” and said that “no electricity, no food, no water, no fuel” would be allowed inside the Gaza Strip. A siege is an ancient form of warfare, and the modern legal obligations of a besieging party are a matter of dispute, but again, “The Law of Land Warfare” is instructive. It explicitly declares it “lawful” to cut off “reinforcements, supplies and communications,” but it also states that the belligerents should “make reasonable, good-faith efforts to conclude local agreements for the removal of wounded, sick, infirm and aged persons, children and maternity cases from the besieged or encircled area.”
Given these realities, you can see the dynamic that will unfold. Bound by the laws of war, Israel has every incentive to decrease civilian casualties. The Israel Defense Forces are already providing detailed evacuation instructions for civilians to remove them from the zones of expected conflict. Netanyahu has urged residents to leave Gaza. Disregarding the law of war, Hamas has concrete tactical and strategic reasons to keep civilians in harm’s way and capitalize on their deaths.
This point explains your ignorance of the laws of war, which deploys a colloquial, not a legal definition of proportionality that jumps to your "by any means necessary" conclusion about Israeli tactics and plays into Hamas' propaganda aims:
"The Israel Defense Forces also rely heavily on their lawyers. When I served in Iraq with the Third Armored Cavalry Regiment, that was my job. Yet our military still made mistakes. Some American soldiers (not in my unit) committed war crimes, in spite of comprehensive training and numerous constraints placed on the use of force.
Every violation of the law should carry a consequence, but the law of war does not prevent Israel from destroying a terrorist army embedded in a civilian population. It can be done. It has been done. And as Israel embarks on perhaps its most difficult military operation since its war for independence, public clarity about the law of war will be indispensable for depriving Hamas of one of its chief propaganda weapons, and continued enforcement of the law of war can prevent atrocities that could fuel this conflict for generations to come."
To paraphrase Groucho Marx, before you make war crime accusations, "call your lawyer as soon as he gets out of law school."
