Trying To Rewrite The Laws Of War

Last Thursday the IDF released the findings of its investigation into the death of four boys on the Gaza beach on July 16 of last year, during Operation Protective Edge. After reviewing live and affidavit testimony, as well as documentary evidence, it found that the deaths, while tragic, were accidental. The boys were playing in a Hamas military compound, one that had been targeted only the day before. According to affidavits from area residents, the fact that the area was a Hamas compound was widely known. Based on intelligence reports and fuzzy surveillance images, the boys were believed at the time to have been Hamas operatives.

There are still questions left unanswered by the IDF’s investigation into the beach incident. Specifically, why were these boys playing in a known military compound that had been the subject of strikes only the day before? Were they sent in intentionally, with the goal of creating an incident to horrify people? Or was this just a failure of supervision? It’s unlikely the answers to these questions will ever be known. For anyone watching with an open mind and attention to actual facts, however, it’s clear that in this case, although a tragedy certainly occurred, Israel was not culpable. For Israel’s detractors, however, the actual facts are irrelevant.

In this context, it’s worth a brief note at this point on the legal concept of criminal intent, or in legal jargon, mens rea. Most advanced criminal legal systems require intent to commit a criminal act as a prerequisite to criminal culpability (as pretty much anyone who has ever seen a courtroom drama knows) in most cases. Without intent, in most cases, there is no criminal act. Findlaw.com illustrates this with the example of a car accident in which the driver did not see a pedestrian until it was too law, tried to brake, but was unable to do so in time. It doesn’t take a law degree to understand that (assuming sobriety) no criminal liability is likely in such a case.

law libraryThere are rare exceptions, such as statutory rape and a few others, known as strict liability offenses. In such offenses, intent is irrelevant, and the fact that the act has occurred is sufficient to establish criminal liability.

Notwithstanding those few exceptions, intent is an indispensible element to establish liability not only in the vast majority of ordinary criminal offenses, but also in international criminal law. Although Israel, like the US, is not a party to the Rome Statute, what the Rome Statute has to say about intent is useful to consider as indicative of international norms.

Article 30 Mental element

  1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
  2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

  1. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Article 32

Mistake of fact or mistake of law

  1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

Like the American legal system, moreover, the Rome Statute includes a presumption of innocence.

Article 66

Presumption of innocence

1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.

As noted above, based on the facts as found by the IDF, the boys on the beach were believed, with good reason, to have been Hamas operatives. This was a tragic mistake of fact, to be sure. But it negates the intent required for criminal culpability under any modern standard of law.

For those who are predisposed to believe the worst about Israel, it is inconceivable that the IDF could have made a genuine mistake of fact. Such people demand of Israel — and Israel alone — that it be superhuman, even under fire, and that it never err. The fact that the boys died is sufficient to cast blame — in other words, they are trying, in effect, to rewrite international law and to redefine war crimes as strict liability offenses.

This would be bad news for any country that has fought in a war, because the truth is, its unlikely that any war in history has been fought without civilian casualties. It would be great news, however, for rogue regimes that can flout international law because they are impervious to international public opinion as well as to most forms of sanction. War crime liability for any civilian death, regardless of intent, would make it virtually impossible for any country that chooses to be a part of the community of nations to ever act to stem attacks.

hamashole4This would empower not only Hamas, but ISIS, Boko Haram, and the Iranian Revolutionary Guard Corps, to name just a few. The strict liability for any civilian deaths advocated by Israel’s critics, if applied consistently, would give all such rogue regimes unlimited opportunities to attack without fear of reprisal, because it would become impossible for any state to retaliate or defend within the bounds of international law. (Of course, that is, assuming that the “law” that is applied to Israel would be the same as the law applied to any other country – a big and possibly unwarranted assumption.)

Make no mistake – the ability to attack with impunity is exactly what Israel’s enemies hope to gain. Those who embrace this strict liability mindset do so with the goal of making it impossible for Israel to defend itself militarily. Making it impossible for Israel to defend itself, in turn, is one method employed by those who want to see Israel ultimately destroyed.

Note: The above post is not intended as legal advice.

8 thoughts on “Trying To Rewrite The Laws Of War”

  1. ahad_ha_amoratsim

    I forget where I saw the report that the boys were from a known Fatah family and were deliberately sacrificed by Hamas – they get rid of some rivals, remind the other Gazans who’s boss, and get a propaganda victory. Win-win-win.

      1. Yes, it may be all much more sinister than a simple mistake in the heat of battle. There are signs that these four boys were deliberately killed by Hamas operatives and afterwards placed on the beach.

  2. Norman_In_New_York

    Lawfare may be warfare by another means but it is still warfare and Israel should treat it as such, using whatever it takes to win a victory.

  3. I note that the leftists all screaming disproportionality when it comes to Israel without knowing the proportionality part in the Geneva Convention is a RECOMMENDATION and that it doesn’t mean if a foe throws a rock at you – then you can only throw a rock at them.

    Proportionality means not using more force than is necessary to stop them from attacking. With Hamas – they declare that their goal is the genocide of every single Jew in the entire world. So a proportional response would be to kill every person in Gaza.

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top