Many have decried perceived war crimes by the Israeli Defense Forces (IDF), Hamas or both, but what war crimes have actually been committed? The Smoky Mountain News spoke with David Crane, the man who successfully prosecuted former Liberian president and warlord Charles Taylor, who is now locked up in a North England Prison. In addition, Crane, who now lives in Maggie Valley, has led the effort in the United States to charge Russian President Vladimir Putin for war crimes his army has committed in Ukraine. 

Crane said that while the situation in Israel and Gaza is in some senses politically linked to the situation in Ukraine, the discussions of war crimes are quite different as no two conflicts are the same. Crane began by noting what he considers the most obvious crimes committed.

“Hamas attacking the music festival and some of the torturing of the women and children are definitely war crimes,” he said.

While many are making “both sides” arguments and crying for prosecution of both the IDF and Hamas, Crane made it clear there was no equivocation and that Israel, at least in the first couple of weeks following the attack, had a right and an obligation to defend itself by launching attacks against Hamas targets in Gaza. 

“I would really hesitate making the extreme statements that Israel is just doing the very same thing that Hamas is doing,” he said. 

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The problem with some of those attacks has been the growing collateral damage as more civilians die in those attacks. Crane said that collateral damage itself isn’t a war crime as long as there’s evidence that the actual target was military in nature, that the loss of civilians was proportionate to the expected military advantage and that the IDF took all feasible precautions to ensure the intended target was a combatant and that all efforts to minimize civilian harm were taken.

“If by chance you are aiming at a military target and civilians are collaterally killed, that is not a war crime,” Crane said. “The challenge with Israel, which tends to follow the laws of armed conflict, is that they are engaged with combat in the most densely populated part of the world; there are civilians everywhere. And even though it appears they are targeting Hamas, the issue is that Hamas is hiding behind this densely packed group.” 

In fact, Crane noted that Hamas hiding in and underneath civilian targets like apartment buildings and hospitals is itself a war crime. Crane said he believed that by using civilians as human shields, Hamas is victimizing the very people they are swearing to defend. 

“Hamas knows they would lose [in traditional combat],” he said. “The bottom line is, Hamas will have a missile battery in the basement of a residential apartment building, roll it out, fire, put it back in the basement and Israel has an invalid military target in the basement. If they take out the missiles which are killing Israelis indiscriminately, it may take out the building, and then Hamas takes pictures of the dead bodies, the screaming children.”

Crane’s opinions are backed first by his own experience in combat as an Army junior officer in Vietnam and then over 40 years in the legal field, including time as a Judge Advocate General (JAG) advising military officers on the laws of combat as they may apply to any particular mission.

Whenever such a mission is considered, a JAG is present to advise the brass on the its legality and potential pitfalls — even things that could, in the end, be war crimes. Crane said Israel has a similar practice for authorizing strikes against Hamas, but that doesn’t mean it may not be susceptible to making more mistakes as time goes on. 

“Hamas is egging Israel on to force them into a situation where they can’t win, and they want to embarrass Israel,” he said.

Crane recalled one mission where the United States was going after a high-level target who was going to be at a wedding. The key when advising in those situations is to determine the value of the target and weigh that against the potential collateral damage. If there are a lot civilians around and there might be another way to get that target, then a mission should be postponed or aborted. An egregious failure to do so may constitute a war crime.

“We had him dead to rights,” Crane said of the target at the wedding. “We had him in our drone sights, and we called it off because he had 50 civilians around him. We had to weigh the risk. All combatants have an obligation to consider civilian casualties.”

“We still got him later,” Crane added.

Had the attack been given the green light, it could have played out similarly to a United States drone strike in December 2013 that hit a wedding procession in Yemen. According to a summary of the incident  from Human Rights Watch, although the procession may have included members of Al Qaeda, there were numerous civilians killed or injured in the attack. 

While in his initial interview, Crane said Israel hadn’t blatantly committed any war crimes he knew of since he understood the IDF was targeting terrorists, in a follow-up interview on Nov. 2 he said the recent attacks on Gaza’s largest refugee camp would almost certainly meet that standard.

“I think they crossed that line with those two attacks,” he said. “If you know there are hundreds of people around who’d be killed, you have to weigh that.”

Crane’s main role was to advise leaders regarding the legality of a strike, but he pointed out that there must also be a political consideration, as well. He said that as Israel continues to aggressively attack areas with dense civilian populations and especially refugee camps, they’ll hurt their own cause at the international level.

“They’re slowly but surely turning the world against them,” he said.

And while Crane still thinks Israel has the right to defend itself and that Hamas was clearly the aggressor, he doesn’t want people to mistake that as a statement of support for the country’s current leadership, including Prime Minister Benjamin Netanyahu, who was indicted on charges related to bribery and fraud in November 2019. 

“I am not pro anything,” he said. “I am just calling it like it is. Israel under Netanyahu is basically a dictatorship. It is slowly but surely losing this strong democratic tradition because of him.”

“Politically, Israel has been the bad guy for over a decade,” Crane added. “And in some cases, longer than that. They have controlled Gaza. They’ve occupied it at times and they’ve literally put a fence around Gaza and control whatever goes in — food, water and what-have-you — for decades.” 

Crane said that ultimately prosecuting war crimes against either side could be tricky and added that there must be some international political will to get to that point. 

“If Israel by chance captured the leader of Hamas, that leader could be prosecuted under Israeli domestic law for various violations,” he said. “There’s no political will to go after Hamas from an international level, so even though they are committing international crimes, and the international criminal court has jurisdiction over it, I’m not sure where that’s gonna go.”

However, Crane said he still believes that if the will is there, Hamas could be prosecuted for war crimes in an international court.