There is a strange quality to today’s story by the New York Times on the civilian casualty rate in Gaza (“Civilian or Not? New Fight in Tallying the Dead from the Gaza Conflict”).

The story raises a key legal issue: “Then there is the question of who counts as a “combatant.’”

In addressing that question, there’s much to learn from the story and its analysis of statistical information about existing casualties. But the story is lacking with respect to recognition of the international law on lethal operations and recognition of Israeli’s official position (whether one agrees with that position or not).  

More specifically, the story has two shortcomings:

1. The NYT analyzes the key legal issue without mentioning the existence of any international legal standard.

Indeed, a reader would not be faulted for concluding, after reading the story, that this is simply an amorphous area in which parties to a conflict and civil society groups might arrive at their own conclusions. Instead, the law of war is fairly well settled on this issue in many important respects (and Israel, including the Israeli High Court, does not disagree with many of those features of existing law).

As Sarah Knuckey and I noted in an earlier post at Just Security, a primer by HRW provides an excellent summary of the laws of war that apply to Gaza (see #2 for definitions of who can be targeted). For example, lawful targets include members of the armed forces of an opposing side and individuals who “directly participate in hostilities” such as helping to load and fire a weapon. The definition excludes purely political leaders, religious figures, financial contributors and others without a fighting function.

In the scholarly literature and at international conferences, there is a hypothetical “hard case” that legal experts and legal advisers disagree about: whether a person driving a military truck filled with ammo to the front lines is a valid target. Yup, that’s the difficult case of where to draw the line! As Derek Jinks and I once wrote, “That this is considered a hard case illustrates the substantial agreement” among the different views of the law. Indeed, this is much clearer an area of law than many areas of domestic law that affect matters of life and death.

2. The NYT story does not say what the Israeli government’s official position is in answering the question of who counts as a combatant (i.e., a lawful target).

I will have much more to say about this second shortcoming in a subsequent post. For now, it is important to note that it would be a terrific service if journalists would drill down on the latter question—who exactly is the IDF saying is a valid target in Gaza. I am surprised that the only lens we have to evaluate that issue in a NYT story about that very question is limited to: (i) the story’s amorphous reference to “in some eyes” which is then immediately followed with (ii) what the story says a senior member of Human Rights Watch says about the Israeli position.

Here are the key paras:

“Then there is the question of who counts as a ‘combatant.’

There are uniformed men actively firing weapons. But Hamas also has political figures, members of its security service and employees of its ministries. In some eyes, anyone affiliated with the organization, which professes a goal of destroying Israel, is a combatant.

‘Israel has a very liberal definition of who qualifies,” said Sarah Leah Whitson of Human Rights Watch. “Israel’s labeling of certain individuals as ‘terrorists’ does not make them military targets as a matter of law.’” (emphasis added)

Whether one supports or opposes the Israeli government’s position, it would be good for the public to be informed of what it is. I will delve into what’s publicly available on that issue in a subsequent post.