John Oliver maintains the erroneous assumption that if there are civilian casualties in a combat situation, it necessarily means that a war crime has been committed, writes Hugh Fitzgerald
John Oliver is the host of the late-night talk-show “Last Week Tonight.” On May 12, after two days of fighting between Hamas and Israel — the war started with a volley of 140 rockets that Hamas, in Gaza, launched against Israel — Oliver delivered his thoughts on the conflict. He came down hard on Israel. Yuval Yoaz reports on Oliver’s palpable want of sympathy for the Jewish State here: “What John Oliver doesn’t get about the war in Gaza,” Times of Israel, May 21, 2021:
“There is a lot to unpack there,” John Oliver began his opening monologue of “Last Week Tonight” last Sunday, where he sharply criticized Israel for its crushing airstrikes on Gaza strip. “From the use of the phrase ‘tit for tat’ war in a conflict in which one side has suffered over 10 times the casualties, something that speaks to the severe power imbalance that played here.” Oliver’s conclusion: this ”severe power imbalance“ often “gets obscured by how we choose to talk about it.”
Oliver is, of course, free to criticize Israel, and, although he himself attests to the great difficulty in judging “the latest chapter in a long story you haven’t read” regarding the conflict in the Middle East, he is also free to draw conclusions and formulate a moral position. But Oliver should do this with the same standard he sets for others. Specifically, he’d better avoid obscuring essential facts in the way he chooses to talk about them.
The prism through which Oliver observes the latest flare-up between Israel and Hamas is that of power disparity. Israel has a strong and sophisticated army, fighter jets, and missile defense systems; Hamas does not. This much is true — there are huge, undeniable gaps in military power between Israel and Hamas.
In fact, the common notion is that these gaps are the exact reason the State of Israel exists: had it not built from the ground up a stronger army force than those of its enemies in the region, it is likely that it would have been erased from the map long ago.
Is Israel to be vilified because it has built up a strong army, allowing it to win every war that has been forced upon it, including three wars – in 1948, 1967, and 1973 – fought for the state’s very survival? Had Israel not had a stronger army, it would not merely have lost bits of territory, but as the Palestinian (and other Arabs) made clear, would have ceased to exist altogether. Does Israel have some kind of obligation to make sure that its military does not become unacceptably stronger than the terror group Hamas? Who decides that Israel must not be so much stronger than Hamas because that would be….”unfair”? On what theory? Were the Americans wrong – was it “unfair” of them — to keep fighting Nazi Germany, destroying its cities, long after the German army had been left in tatters and the Hitler Youth had in desperation been pressed into service, in order to help defend the Fatherland? When the Japanese were clearly beaten, was it wrong for the Americans to drop two atomic bombs on Hiroshima and Nagasaki, killing 140,000 in the first attack and 74,000 in the second? Was that “severe power imbalance” impermissible? Who decides? Is the side that is vastly stronger than its enemy therefore in the wrong for using that power? Should Israel have conducted half as many airstrikes on Hamas in order to correct that “severe imbalance” in power? John Oliver sounds as if that is what he believes.
But that’s not his main issue. Oliver’s primary failure stems from his complete disregard of three basic facts, without which it is impossible to even begin to understand the moral and legal significance of this round of fighting between Israel and Hamas.
Oliver maintains the erroneous assumption that if there are civilian casualties in a combat situation, it necessarily means that a war crime has been committed;
Oliver makes no distinction at all between the legitimacy of Hamas’ actions and those of Israel;
And he makes no attempt to distinguish between what is happening in the Hamas-controlled Gaza strip, in territories controlled by the Palestinian Authority, and in East Jerusalem, which is under Israeli governance.
Going by Oliver’s logic, since innocent women and children were killed in the Israeli bombings, it is clear that Israel is committing war crimes. He therefore expresses anger at the forgiving attitude of the United States towards its “unwavering friend” Israel, instead of doing what Oliver expects a good friend to do — tell him that he is committing war crimes.
The assumptions embedded in Oliver’s argument can be seen, for example, in his critique of the demolition of high-rise buildings in Gaza: “For the record, destroying a civilian residence sure seems like a war crime, regardless of whether you sent a courtesy heads-up text.”
Well… that’s actually not true. It is unpleasant to say this, and it always sounds heartless, but in terms of international law, harming innocent people does not necessarily mean that war crimes were committed. Combat operations can be conducted while adhering to international law, even if the result is that, during the operations, innocent people are harmed.
Israel does not target purely “civilian residences.” It targets places where weapons are hid, where rocket launchers are placed, where senior commanders – fighters not civilians – may live, where intelligence offices and research-and-development offices are located. The much-discussed attack on the Jala tower took place not because Israel wanted to destroy the AP and Al Jazeera offices in that building, but because it was where Hamas weapons development and intelligence offices were located; the Israelis presented their proof of this to the Biden administration, that found their evidence convincing. And as is its consistent practice, the Israelis warned the residents of the Jala tower well in advance of the attack – in this case, an hour before — so as to prevent any civilian casualties.
The laws of war require that the purpose of military action be to strike a combat force. If Israel were to deliberately strike women and children (and all civilian populations not involved in hostilities in general), its actions would have been deemed a serious war crime.
But that is not what Israel is doing. The international law department in the IDF’s prosecution accompanies all combat operations in the Gaza Strip, in order to ensure not only that the targets of the operation are military hostiles, but that all necessary actions are taken to minimize the accompanying harm to civilians.
Israel never deliberately attacks civilians. It recognizes that there will unavoidably be civilian casualties in wartime, and especially when fighting Hamas, given that the terror group deliberately hides its weapons and rocket launchers among civilians, next to or inside private dwellings, office buildings, schools, hospitals, and mosques. Hamas, on the other hand, not only deliberately attacks Israeli civilians, but puts its own civilians in harm’s way, hoping to increase the number killed and wounded, in order to provide Hamas with a propaganda victory against those “war criminal” Israelis.
Israel’s modus operandi is to warn the inhabitants of the buildings it has targeted, giving them anywhere from 15 minutes to two hours of warning. The IAF calls residents or, when they can be located, the owners, of the buildings that are targeted, instructing them to warn others about the need to leave within the time limit given. The IAF also employs the “knock-on-the-roof” technique, its practice of dropping non-explosive or low-yield devices on the roofs of targeted buildings to warn inhabitants to leave.
Here, too — as in other cases — the rules of proportionality apply. The concomitant harm (it is hard to use such clinical words when talking about human life) should be proportionate to the primary military benefit of the concrete action.
One can argue about how Israel applies the rules of proportionality in this context. Is the IDF really making every possible effort to gather intelligence on the presence of “uninvolved” people in the houses and buildings where Hamas is located in the heart of Gaza? Are the guidelines to evacuate a building a few minutes before it is bombed really 100% effective? But it is not legitimate to argue that Israel commits war crimes simply by virtue of civilian casualties in the operations.
The IAF makes endless efforts to warn civilians to leave buildings about to be hit.. It is seldom a warning given just “a few minutes before [a building] is bombed”; for the largest structures, one or two hours warning may be given; in the case of the Jala building (which housed both Hamas intelligence offices and offices of the AP and Al Jazeera), an hour was given. The IAF realizes, of course, that these warnings will allow the Hamas fighters and other operatives to escape as well, but it’s a price Israel is willing to pay to minimize civilian casualties.
Given this extraordinary attention by the IAF to minimizing civilian casualties, is there evidence that Israeli has committed “war crimes”? War crimes were indeed committed in this 11-day war, but not by Israel. The “war crimes” of Hamas were committed against both Israelis and the civilian population in Gaza. For it was Hamas, violating the rules of war, that deliberately fired 4,350 rockets at civilian targets in Israel. That 90% of those rockets were intercepted by Israel, and abut 650 fell short and landed in Gaza, does not mitigate the charge against Hamas of “war crimes.” Hamas behaved in this Gaza war just as it had in its three previous wars with Israel, targeting Israeli civilians, and deliberately endangering its own population by placing weapons, and rocket launchers, in the midst of civilian areas and in civilian buildings. Both are war crimes.
Beyond the general, seemingly self-evident accusation that Israel commits war crimes, Oliver seems completely indifferent to the basic legal difference between Israel’s actions and those of Hamas. In Oliver’s words: “Both sides are firing rockets. But one side has one of the most advanced militaries in the world.”
Well, Israel is a sovereign state and — like any other sovereign state — is allowed to protect its civilian population. Israel is part of the “family of nations” and operates, at least [sic] explicitly, in accordance with the norms of international law.
Hamas, on the other hand, is a terrorist organization that has controlled the Gaza strip for 14 years.
In fact, each of the rockets launched by Hamas at Israel — every single one of them — is a war crime, whether they hit Israelis or land in open areas or are intercepted in the air by the “Iron Dome” system.
Hamas has no intention of harming military targets; it deliberately fires at the civilian population, with the aim of harming them. That is the very definition of a war crime.
Hamas fired 4,350 rockets toward Israeli cities during this latest Gaza war. And while some of those rockets hit civilian targets – leaving gaping holes in houses and apartment buildings — not a single military target, save for one soldier, was hit during the 11 days of fighting. Hamas was more interested in “striking terror” in the hearts of Israel’s civilian population with volleys of rockets fired into cities than in trying to hit the hardened targets of Israel’s military.
Israel is doing everything in its power to minimize the harm not just to its own people, but to civilians in Gaza, as part of its war against a terrorist organization that has placed its weapons and fighters within civilian areas. Meanwhile, Hamas is doing everything in its power to increase the number of casualties among Israeli civilians and its own people.
True, looking at the region from across the Atlantic sometimes makes it difficult to discern nuances. The distance between East Jerusalem and Ramallah and between Ramallah and Gaza is really small, even when you don’t look from afar.
But in terms of international law, there is a complicated system of agreements backed by international norms between Israel and the Palestinian Authority, which controls the West Bank, and it bears no resemblance to the constant state of combat between Israel and Hamas, which controls the Gaza Strip. And that is even before we discuss the immeasurably complex legal regime in East Jerusalem.
Mixing all of these may give the impression that Israel controls all Palestinians in all territories that were part of historic Palestine — Gaza, Ramallah, Sheikh Jarrah, they are all the same for the popular HBO host. But they are not the same.
Since 2005, not a single Israeli has been left in Gaza, and following the 2006 elections, the Strip has been ruled despotically by the terror group Hamas. It is absurd to talk about Gaza as “occupied territory” or to claim that Israel “controls Gaza,” as John Oliver seems to think. If the IDF truly “controlled Gaza” there wouldn’t have been 14,000 Hamas rockets stockpiled and ready to rain down death on Israel (4,350 of then have now been used), nor would Hamas have been able to build that vast underground network of tunnels, 250 miles long, used to move weapons and fighters throughout the Strip.
Ramallah is the capital of the PA, headed by the colossally corrupt Mahmoud Abbas, an archenemy of Hamas who is now in the sixteenth-year of his four-year term. The PA is not controlled by Israel; rather, the PA controls the lives of the Palestinians who live in Areas A and B of the West Bank; only Area C remains fully under Israeli control. The PA differs from the terror group Hamas in matters of timing and tactics, but shares the same goal of the ultimate elimination of the Jewish state. While Hamas wishes to expel or kill every Jewish Israeli, the PA is prudently silent on what it would do to the Jews in case of a (highly unlikely) defeat of Israel by Palestinians and its allies such as Iran; it is possible it would allow Israeli Jews to remain as part of a “one-state solution”; those Jews could continue to live in “Palestine” so long as they benefited the Palestinians through their greater industry, inventiveness, and technological prowess. What those Jews living in a future state of “Palestine” — the “one-state solution” that a growing number of Palestinians now favor — could offer the Arabs would no doubt be understood as well-deserved Jizyah.
The conflict over some properties in the Jerusalem neighborhood of Sheikh Jarrah, John Oliver fails to realize, is not part of some Israeli government scheme to “Judaize” East Jerusalem. 209,000 Palestinians live in East Jerusalem; since 1967, they have lived there, without any Israeli attempt to “displace” them. The Sheikh Jarrah dispute has nothing to do with the Israeli government; it is a private property dispute. Jews claiming to be the owners of properties in which four Arab families now live, have presented their evidence of ownership, which has been recognized as valid, not just by Israeli courts, but also by the very Arabs living in those properties. In 1982, and in 2020, Arabs living in the properties admitted that they were owned by the Jewish claimants. But for decades, they have continued to refuse to pay any rent, and they will not move. They no doubt are hoping that a large outcry – including violent riots by Palestinians in East Jerusalem, and howls of protest from the many Israel-haters abroad – everyone from Jeremy Corbyn and Roger Waters to Ilhan Omar and Rashida Tlaib – will prevent the Israeli government from enforcing the law by expelling the Palestinian squatters and putting the true owners back into possession of their properties. John Oliver apparently knows nothing about this property dispute; for him it is just one more example of Israeli aggression and determination to push Arabs out of Jerusalem.
John Oliver is an extremely talented and funny comedian and TV personality. Quite often, he also holds commendable moral grounds. And he’s right: a friend should be told when he’s being an idiot.
Neither you nor I is a friend of John Oliver. But we’d nonetheless like to join in, and add our voices to the chorus of those who want to tell him that when it comes to Israel and Hamas, John Oliver, “you are certainly being an idiot.”