David Traven has an interesting post over at Monkey Cage about the Report of the Commission of Inquiry into the 2014 Gaza Conflict and ongoing debates about whether each side committed war crimes during that conflict.
Many of these arguments revolve around the issue of intentionality. Did the Israelis intentionally target Palestinian civilians? Did the Palestinians intentionally target Israelis civilians? These are valid and important questions, especially since it is always a war crime to intentionally target civilians.
However, a strong focus on intentionality can be counter-productive since intentions are difficult to prove. As Traven points out:
…international law can enable “plausible deniability” — intentionally aiming at civilians, but claiming that their deaths are accidental. It can be hard to determine whether military decision-makers intend to kill civilians. They can always misrepresent their motives — or, to be blunt, they can lie.
Moreover, an unsuccessful attempt to prove bad intentions may convey to many people a false sense that everything is fine….as in….”Regrettably, we killed some civilians but we didn’t mean it. Next question please.”
Interestingly, the press release for the Commission of Inquiry uses the word “intention” only once:
The indiscriminate firing of thousands of rockets and mortars at Israel appeared to have the intention of spreading terror among civilians there.
The Commission report itself also uses the word “intention” only once, mostly for theoretical clarification:
Israel should provide specific information on the effective contribution of a given house or inhabitant to military action and the clear advantage to be gained by the attack. Should a strike directly and intentionally target a house in the absence of a specific military objective, this would amount to a violation of the principle of distinction. It may also constitute a direct attack against civilian objects or civilians, a war crime under international criminal law.
In fact, the Commission mainly tries to focus discussion here on the question of whether civilian damages from Israeli military actions are out of proportion to the military advantages the Israelis gained from these actions (which would also be a war crime, if true).
Shifting attention to proportionality certainly does not resolve all problems since, as Traven points out, there can never be a fully objective test of whether or not particular military actions are proportional to associated civilian damages. But such a shift does at least eliminate defences taking the form of “I didn’t mean it.”
A few years back Madelyn Hicks and I introduced what we called the “dirty war index” which is relevant to the present discussion. The dirty war index specifically sidesteps the question of intent. Rather, we focus on predictable consequences of using particular weapons or tactics as well as on the established patterns of harming civilians that particular armed groups have established over time.
If, for example, using explosives in densely populated areas is known to cause substantial harm to civilians then this fact must be integrated into evaluations of military decisions, regardless of whether or not the users of these weapons intend to harm civilians.
A quantitative approach such as the dirty war index cannot settle any one proportionality question but it can help organize our thinking. For example, if data indicate that mortars tend generally to be more indiscriminate than gunfire then the use or mortars should be inherently more suspect than the use of gunfire.
Perhaps the UN can adopt such an approach in future work.