Dershowitz In WSJ - Obama Learns One Can't Avoid Civilian Casualties in War |
By ALAN M.
DERSHOWITZ
Oct. 2, 2014 7:36 p.m. ET
Last year the Obama administration issued, with
considerable fanfare, a new military policy designed to reduce
civilian casualties when U.S. forces are attacking enemy targets.
This policy required "near certainty" that there will be no civilian
casualties before an air attack is permitted.
When Israel acted in self-defense this summer against
Hamas rocket and tunnel attacks, the Obama administration criticized
the Israeli army for "not doing enough" to reduce civilian
casualties. When pressed about what more Israel could do-especially
when Hamas fired its rockets and dug its terror tunnels in densely
populated areas, deliberately using humans as shields-the Obama
administration declined to provide specifics.
Now the Obama administration has exempted itself from
its own "near certainty" standard in its attacks against Islamic
State in Iraq and Syria. In a statement on Sept. 30 responding to
questions by Michael Isikoff at Yahoo News, the administration said that in fighting Islamic
State, also known as ISIS, the U.S. military can no longer comply
with Mr. Obama's vow last year to observe "the highest standard we
can meet."
The statement came after a Tomahawk missile last week
struck the village Kafr Daryan in Syria, reportedly killing and
injuring numerous civilians including children and women. The
missile was directed at al Qaeda terrorists that the White House
calls the Khorasan Group, but apparently the Tomahawk hit a home for
displaced civilians. The Pentagon says it is investigating the
incident, but YouTube video of injured children and the appearance
by angry Free Syria Army rebel commanders at a congressional hearing
about the attack-an attack that prompted protests in several Syrian
villages-left little doubt about what happened.
If this sounds familiar, it is because in every attack
on terrorists who operate from civilian areas, there will be
civilian casualties. This is especially so when terrorists employ a
policy of hiding behind civilian human shields in order to confront
their enemies with a terrible choice: not attack a legitimate
military target; or attack it and likely cause civilian casualties,
which the terrorists can then exploit in the war of public
opinion.
Hamas has employed this approach effectively in its
periodic wars against Israel. Hamas fighters fire rockets at Israeli
civilian targets from densely populated areas near United Nations
facilities, mosques, hospitals and private homes. These areas,
rather than the less densely populated open areas between the cities
of Gaza, are intentionally selected. Hamas urges civilians to stand
on the roofs of buildings that are used to store rockets and that
serve as command-and-control shelters.
The fighters dare Israel to attack these shielded
military targets. Israel responds by issuing warnings-by leaflets,
telephone and noise bombs-to the civilians, urging them to leave.
When civilians try to leave, Hamas fighters sometimes force them
back at gunpoint. The fighters launch their missiles using a time
delay, giving themselves the opportunity to hide in tunnels where
only they are allowed to seek shelter; civilians are left exposed to
Israel's efforts to destroy the rockets.
When Israel does attack military targets such as a
rocket launcher or a tunnel entrance, and kills or injures
civilians, Hamas operatives stand ready to exploit the dead for the
international media, who are ever ready to show the victims without
mentioning that they died because Hamas was using them as human
shields.
Now ISIS and other jihadists in Iraq and Syria are
beginning to emulate the Hamas strategy, embedding fighters in towns
and villages, thus making military strikes difficult without risking
civilian casualties. That is why the Obama administration has
exempted itself from its theoretical "near certainty" policy, which
has proved to be unworkable and unrealistic in actual battle
conditions involving human shields and enemy fighters embedded in
densely populated areas.
For the U.S., the fight against ISIS is a war of
choice. Islamic State fighters pose no immediate and direct threat
to the American homeland. For Israel, by contrast, Hamas poses an
immediate and direct threat. Both the U.S. and Israel seek to
minimize civilian casualties. Neither can do so under an unrealistic
principle of "near certainty."
Israel has come closer to this high theoretical
standard than have the United States and its various coalition
partners-for instance, only Israel would employ small rooftop
"knock-knock" explosives to warn civilians of a coming missile
strike. Yet Israel is the only nation that is routinely condemned by
the United Nations, the international community, the media, the
academy and even the U.S. for "not doing enough," in Mr. Obama's
words, to reduce civilian casualties. As the president is learning,
war is hell. The possibility of waging it with "near certainty" of
anything is a chimera.
There must be a single universal standard for judging
nations that are fighting the kind of terrorism represented by ISIS
and Hamas. The war against ISIS provides an appropriate occasion for
the international community to agree on a set of standards that can
be applied across the board. These standards must be both moral and
realistic, capable of being applied equally to the U.S., to Israel
and to all nations committed both to the rule of law and to the
obligation to protect citizens from terrorist
attacks.
The decision of the Obama administration to abandon its
unrealistic "highest standard" pledge indicates the urgent need to
revisit anachronistic rules with which no nation can actually
comply, but against which only one nation-Israel-is repeatedly
judged.
Mr. Dershowitz is a law professor emeritus at Harvard
University. His books include "Terror Tunnels: The Case for Israel's
Just War Against Hamas" (RosettaBooks), available now as an e-book
and in hardback next month.
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