Under Scrutiny Over Gaza, Israel Points to Civilian Toll of U.S. Wars
Israeli officials say it is impossible to defeat Hamas without killing innocents, a lesson they argue Americans and their allies should understand.
Falluja. Mosul. Copenhagen. Hiroshima.
Facing global criticism over a bloody military campaign in Gaza that has killed thousands of civilians, Israeli officials have turned to history in their defense. And the names of several infamous sites of death and destruction have been on their lips.
In public statements and private diplomatic conversations, the officials have cited past Western military actions in urban areas dating from World War II to the post-9/11 wars against terrorism. Their goal is to help justify a campaign against Hamas that is claiming thousands of Palestinian lives.
In those earlier conflicts, innocent civilians paid the price for the defeat of enemies. In Hiroshima and Nagasaki, as many as 200,000 civilians perished after the United States dropped atomic bombs to force Japan’s surrender. In Iraq, hundreds of civilians were killed in Falluja as U.S. forces fought Iraqi insurgents, and thousands died in Mosul in Iraqi and American battles against the Islamic State.
Israel insists that it is trying to limit civilian casualties in a war against a terrorist enemy, which began when Hamas killed 1,400 people on Oct. 7 in southern Israel, most of them civilians.
Human rights advocates and many governments in Europe and the Middle East scoff at that. They accuse Israel of committing war crimes in the weeks of airstrikes that have leveled entire city blocks in Gaza, destroying schools, mosques and other seemingly nonmilitary targets.
Israeli officials say they have no choice: Hamas fighters, numbering perhaps 30,000 by Israeli estimates, embed within Gaza’s population of 2.2 million and store weapons in or under civilian sites, daring Israel to launch strikes that fuel outrage. The officials also say Hamas is clearly guilty of intentionally murdering Israeli civilians.
President Biden and his aides have been careful not to even hint in public that Israel could be violating any laws of war. And the State Department continues to approve sales of weapons to Israel while refraining from making any assessments of the legality of Israel’s actions. Some diplomats are uneasy with that, especially since the department formally pledged earlier this year to investigate episodes of civilian casualties involving American-made weapons.
Israel says it is impossible to defeat its enemy without killing innocents — a lesson that Americans and their allies should understand.
“In 1944, the Royal Air Force bombed the Gestapo headquarters in Copenhagen — a perfectly legitimate target,” Prime Minister Benjamin Netanyahu of Israel said in an address to his nation on Oct. 30. “But the British pilots missed and instead of the Gestapo headquarters, they hit a children’s hospital nearby. And I think 84 children were harmed and burned to death. That is not a war crime. That is not something you blame Britain for doing.” (In fact the bombing was in 1945, hit a school, and is believed to have killed 86 children and 18 adults.)
Mr. Netanyahu added that the attack “was a legitimate act of war with tragic consequences that accompany such legitimate action. And you didn’t tell the Allies, ‘Don’t stamp out Nazism because of such tragic consequences.’”
Israeli officials have also invoked American battles against insurgents in the Iraqi city of Falluja in 2004, during the U.S. occupation of Iraq, and, in tandem with Iraqi government forces, against the Islamic State terrorist group in the Iraqi city of Mosul from 2016 to 2017.
And during Secretary of State Antony J. Blinken’s visits to Israel after the Oct. 7 Hamas attacks, Israeli officials privately invoked the 1945 U.S. atomic bombings of Hiroshima and Nagasaki.
“In any combat situation, like when the United States was leading a coalition to get ISIS out of Mosul, there were civilian casualties,” Mark Regev, an Israeli government spokesman, said in an Oct. 24 interview with PBS. Mr. Regev said that Israel’s “ratio” of Hamas fighters to civilians killed “compares very well to NATO and other Western forces” in past military campaigns.
It is impossible to determine that ratio accurately. More than 10,000 people have been killed in Gaza over the past month, 40 percent of them children, according to the health ministry there. It is unknown how many might have been Hamas militants.
The battle of Mosul was far bloodier than earlier fights in Falluja, costing as many as 8,000 civilian lives to kill perhaps several thousand Islamic State fighters. Much of the city center was destroyed. Echoing Israeli assertions today, U.S. officials said at the time that Islamic State fighters used civilians as human shields and even welcomed civilian deaths as a way of undermining support for the U.S.-Iraqi military campaign.
During the monthslong battle, Iraqi ground commanders often requested American airstrikes in densely populated areas, and in some cases were denied by U.S. officials who said the strike could result in a war crime.
But tragedies were inevitable. A March 2017 U.S. airstrike targeting a pair of Islamic State snipers atop a building in Mosul was later revealed to have killed more than 100 civilians sheltering inside. Pentagon investigators concluded that the deaths were caused not by the 500-pound American bomb but by ISIS booby traps rigged inside, and that ISIS had intentionally drawn fire on the building.
‘Disproportionate Attacks’
The questions over whether Israel is violating laws of war intensified last week after warplanes dropped at least two 2,000-pound bombs — among the largest in the country’s arsenal — on the Jabaliya neighborhood, killing dozens of people and injuring hundreds, most from refugee families. After the strike, the Israeli military said it had sought to kill a Hamas commander who had helped plan the Oct. 7 attacks. The military bombed the area again the next day.
“Israel dropping several large bombs in the middle of a densely populated refugee camp was completely and predictably going to lead to a significant and disproportionate loss of civilian life and therefore a war crime,” Kenneth Roth, the former executive director of Human Rights Watch and a visiting professor at Princeton University, wrote online.
The United Nations human rights office said it has “serious concerns that these are disproportionate attacks that could amount to war crimes.” Jordan recalled its ambassador to Israel, citing an “unprecedented humanitarian catastrophe” in Gaza.
The law of armed conflict says the incidental killing of and harm to civilians and damage to objects must not exceed the direct military advantage to be gained. The Geneva Conventions, the widely accepted basis for international humanitarian law and codes of warfare, were adopted in 1949 with the aim of preventing governments from inflicting the level of mass casualties of World War II.
Israeli officials say they have been falsely accused of violations before. In 2009, a United Nations panel investigated an Israeli invasion of Gaza that year and issued a report concluding that Israel and Hamas had both committed war crimes — and that Israel had waged “a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population.”
The leader of that panel, the South African jurist Richard Goldstone, later publicly disowned some of its central conclusions about Israel, saying that as more evidence came to light he had concluded that “civilians were not intentionally harmed as a matter of policy.”
In his later explanation, Mr. Goldstone cited as an example the case of a family of 29 killed when their home was shelled. He said the attack was ordered based on “an Israeli commander’s erroneous interpretation of a drone image,” and that the officer was under investigation.
Israeli officials say they take extensive measures to protect civilians, including by dropping leaflets or making radio and television broadcasts and even phone calls urging residents to leave danger zones ahead of some attacks.
But such actions are not taken when they might cost a needed element of surprise, for instance when targeting a Hamas leader who could quickly flee, according to a senior Israel Defense Forces legal adviser.
In conversations with their Israeli counterparts, U.S. military officials have discussed the lessons learned from the battles in Iraq and in Raqqa, the ISIS headquarters in Syria.
In some instances, the U.S. military enabled many civilians to leave the cities well before the fighting.
Before the Marine offensive in Falluja in November 2004, for instance, many Iraqi civilians went to Baghdad or sought shelter in a concrete factory outside Falluja after being given assurances they could return. The U.S. military destroyed much of the city, but most of the Iraqis killed were insurgents.
“The U.S. made significantly more efforts to avoid civilian casualties in Falluja than what the Israelis are doing now,” said Josh Paul, a recently departed State Department official who worked in Falluja in 2004 and 2005.
For the two million residents of Gaza, there is no escape.
And Hamas has been burrowing into Gaza’s infrastructure for more than 15 years.
Israeli commanders thus repeatedly confront the presence of civilians at or near their targets. The Israeli military legal adviser said that in those cases, commanders use personal judgment before ordering a strike, assessing the likely cost in lives and whether the intended target is worth the price.
There is no agreed-upon formula for making such morbid calculations. One benchmark that Israel considers relevant was introduced by a United Nations investigation of civilian deaths during the 1999 NATO bombing campaign over Kosovo, whose aim was to protect ethnic Albanians from attacks by Serbian forces.
The resulting report, which did not find NATO culpable for war crimes, noted that it was “unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants,” or even that different military commanders with different backgrounds would agree.
The report proposed a vague standard: the judgment of “the ‘reasonable military commander.’”
U.S. Bombs and the Law of War
The vast scale of Israeli strikes — along with statements from Israeli military officials saying their operational intent is for damage and not precision — has left many doubters worldwide. And Israeli leaders say the goal for the campaign in Gaza is to eradicate Hamas, an open-ended aim that some Biden administration officials privately criticize.
Given those issues and the fact that much of Israel’s arsenal consists of weapons bought from the United States, there are growing calls for U.S. officials to determine whether Israel is using them illegally.
Biden administration officials said earlier this year they would do more to hold governments that buy American weapons accountable for civilian killings. The State Department sent a cable in August to its embassies and consulates announcing a new program in which U.S. officials would investigate such reports.
While Mr. Blinken has said Israel should do all it can to minimize civilian casualties, the department has so far refrained from looking into any possible war crimes by Israel.
On Oct. 20, Mr. Blinken said “there will be plenty of time to make assessments about how these operations were conducted.” Last Wednesday, after the mass deaths in Jabaliya, Matthew Miller, the department spokesman, avoided answering questions on whether a process was underway, saying only, “It is not an assessment that we are making now.”
The State Department declined requests for an interview on this subject.
In 2016, the department’s legal office circulated a memo that said U.S. officials could be found guilty of war crimes for selling bombs to Saudi Arabia that were being used in its war in Yemen, in which airstrikes by a Saudi-led coalition were resulting in mass civilian casualties.
“The Israeli strikes we’ve seen so far should be raising serious questions for people at the State Department about how U.S. weapons are being used,” said Brian Finucane, a recent State Department lawyer who is a senior adviser at the International Crisis Group.
The Israeli defense ministry said it had dropped at least 10,000 munitions as of Nov. 1, in three and a half weeks of war. By contrast, the U.S. military dropped about 2,000 to 3,000 munitions per month during the most intense combat operations against the Islamic State in Iraq and Syria from 2015 to 2017, according to a report by the RAND Corporation. Only in one month, in the battle for Raqqa in August 2017, did that number hit 5,000.
“The pace of bombing in Gaza is off the charts,” Mr. Finucane said. “The U.S. engaged in heavy bombing of Raqqa and Mosul. It was heavily regulated, but even then, there were lots of civilian casualties.”
Mr. Paul, the former State Department official, was a longtime employee in the agency’s political-military bureau, which handles weapons sales, until last month, when he resigned because of what he said was immoral U.S. support and lethal aid for Israel’s bombings in Gaza. Mr. Paul said there has been no real discussion within the administration about the use of American weapons in the strikes killing civilians and no way to influence policy on that from the inside.
He added that “in practice and in legal interpretation, there has not been a legal standard established for what constitutes misuse of U.S. weapons.”
Edward Wong is a diplomatic correspondent who has reported for The Times for more than 24 years from New York, Baghdad, Beijing and Washington. He was on a team of Pulitzer Prize finalists for Iraq War coverage. More about Edward Wong
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