The experts' verdict: Every Israeli missile strike is a war crime

Yesterday's Guardian includes an article that appears to be excusing Israel of responsibility for the massive death toll it has inflicted on Palestinian civilians. But, more significantly, it includes a lot of useful -- and damning -- information about just how "indiscriminate" Israel's weapons really are.

This interests me a great deal because I have been warning about problems with the interpretation of international law used by leading human rights groups on this very point since the 2006 Lebanon War.

At that time I got into a dispute with Human Rights Watch's Middle East policy director, Sarah Leah Whitson. Her organization argued that Hizbullah was committing war crimes by definition whenever it fired rockets at Israel, even if it hit military targets, because those rockets were primitive and inherently inaccurate.

By contrast, HRW claimed, Israel's missiles were precise and therefore their use was not inherently inadmissible. Its view was that Israel did not commit war crimes by firing its missiles; the obligation was on observers to show that they had not been used within the rules of war -- which is a much harder standard of proof. For more on this debate, see my articles here and here.

In practice, HRW's argument was nonsense, as was clear even in 2006. During that war, Israel dropped millions of cluster munitions -- little bomblets that serve effectively as land mines -- all over southern Lebanon, endangering the whole civilian population of the area.

But Norman Finkelstein recently pointed out the more general problem with HRW's argument:

"By this standard, only rich countries, or countries rich enough to purchase high-tech weapons, have a right to defend themselves against high-tech aerial assaults. It is a curious law that would negate the raison d'etre of law: the substitution of might by right."

It may not be entirely surprising that HRW and others interpret international law in a way that serves rich and powerful western states, however many civilians they kill; and criminalizes developing states, however few civilians they kill.

The current fighting in Gaza illustrates this point in dramatic fashion. Some 95% of the 64 Israelis who have been killed during the current fighting are soldiers; some 75% of the nearly 1,500 Palestinians who have been killed are civilian.

But comments from experts in the Guardian article add another layer of insight into HRW's dubious distinctions.

One should ignore the irritating framing used in the article, which seems to suggest that the high Palestinian death toll may be down to human or systems errors. Experts discount this theory in the article and also point out that Israel is often not checking whether its shooting is accurate. In other words, it gives every indication of not taking any precautions to ensure it is hitting only military targets (or rather targets it claims are military in nature). That recklessness makes it fully culpable.

But we also have experts cited here who make the point that much of Israel's precise weaponry is not accurate at all.

Andrew Exum, a former US army officer and defense department special adviser on the Middle East, who has studied Israel's military operations, says this:

"There are good strategic reasons to avoid using air power and artillery in these conflicts: they tend to be pretty indiscriminate in their effects and make it difficult for the population under fire to figure out what they're supposed to do to be safe."