Biden’s Use Of “indiscriminate bombing” To Describe Israel IDF Actions Results In Painful-To-Watch Verbal Gymnastics By Spokespersons At The White House And Department Of State. They Won’t Support Him
NOTE: Includes 14 December 2023 updates from The White House and United States Department of State.
President Biden’s Use Of “indiscriminate bombing” To Describe Israel IDF Actions Results In Painful-To-Watch Verbal Gymnastics By Spokespersons At The White House And Department Of State
When The President Makes A Statement, Is He Speaking For United States Government Since He Is Head Of State and Head Of Government?
Undermining The President Should Be Embarrassing. For Biden-Harris Administration Undermining The President Is Required When Discussing Anything Israel. Result Is A Weak-Looking Commander In Chief
Israel Can’t Be Unintentionally Indiscriminate- More Than Once
Is Accusing Israel Of “indiscriminate bombing” Antisemitic?
Difference Between Accusations That Armed Forces Of The Russian Federation Engage In Indiscriminate Bombing In Ukraine Resulting In Immediate Condemnation By Biden-Harris Administration And Devil-Encountering-Holy-Water Appearance When President Biden Delivers A Statement-Of-Fact
For Biden-Harris Administration, Government Of Israel Has Similar Immunity As Donald Trump, Candidate for Republican Party Presidential Nomination, 23 January 2016, Believed He Had: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? It’s, like, incredible.”
Why Is Anyone Surprised By The Reaction From Countries With Majority Muslim Populations?
Oxford Languages: in·dis·crim·i·nate /indəˈskrim(ə)nət/
adjective: indiscriminate
done at random or without careful judgment. “the indiscriminate killing of civilians”
REMARKS BY PRESIDENT BIDEN AT A CAMPAIGN RECEPTION
Salamander Washington D.C.
Washington, D.C.
12 December 2023
“But they’re starting to lose that support by the indiscriminate bombing that takes place… It was pointed out to me -- I’m being very blunt with you all -- it was pointed out to me that -- by Bibi -- that “Well, you carpet-bombed Germany. You dropped the atom bomb. A lot of civilians died.” I said, “Yeah, that’s why all these institutions were set up after World War Two to see to it that it didn’t happen again -- it didn’t happen again. Don’t make the same mistakes we made at 9/11. There was no reason why we had to be in a war in Afghanistan at 9/11. There was no reason why we had to do some of the things we did.” Joseph Biden, 46th President of the United States
From CNN (13 December 2023): “Nearly half of the air-to-ground munitions that Israel has used in Gaza in its war with Hamas since October 7 have been unguided, otherwise known as “dumb bombs,” according to a new US intelligence assessment. The assessment, compiled by the Office of the Director of National Intelligence and described to CNN by three sources who have seen it, says that about 40-45% of the 29,000 air-to-ground munitions Israel has used have been unguided. The rest have been precision-guided munitions, the assessment says. Unguided munitions are typically less precise and can pose a greater threat to civilians, especially in such a densely populated area like Gaza. The rate at which Israel is using the dumb bombs may be contributing to the soaring civilian death toll.”
An unanswered question submitted on 13 December 2023 to The White House and to the United States Department of State:
“Yesterday, President Biden referenced that the government of the State of Israel through decisions of the Israel Defense Forces (IDF) had engaged in “indiscriminate bombing” of locations in Gaza.
“But they’re starting to lose that support by the indiscriminate bombing that takes place.” President Joseph Biden (12 December 2023)
From Wikipedia: “Indiscriminate attacks are prohibited both by the Geneva Conventions Additional Protocol I (1977) and by customary international humanitarian law. They constitute a war crime under the Rome Statute of the International Criminal Court, and the perpetrators can be prosecuted and held responsible in international and domestic courts.”
Question: Does the statement by President Biden provide a basis for the Biden-Harris Administration (2021- ) to commence an investigation to determine a response to the State of Israel?”
United States Department of State
Washington DC
13 December 2023
Briefing Excerpts:
QUESTION: Okay. All right. So yesterday there was a vote at the – in the General Assembly, which was pretty overwhelming, and the President came out and made his remarks saying that Israel is losing international support, specifically – or one of the reasons: for indiscriminate bombing. So I want to know, one, what does the administration think about the overwhelming nature of this vote yesterday? And two, does the State Department in particular share the President’s view that Israel has been indiscriminately bombing in Gaza?
MR MILLER: With respect your second question, so we have not made a formal determination to that question. What I believe the President was speaking to – and of course the White House can speak to his exact comments – was the impact of the large-scale bombing campaign that we’ve seen where thousands of civilians have been killed. And it’s something that we’ve spoken to that we have seen too many civilians killed. We understand Israel’s intent, but as the Secretary has said, what also matters is the results, which is why we have continued to encourage them to take additional steps to protect civilians from harm.
QUESTION: So there is no inquiry or ongoing, like, investigation into whether that has happened or not?
MR MILLER: We continue to monitor what’s happening, we continue to collect information at a variety of levels, but I don’t have any internal deliberations or processes to speak to.
QUESTION: Yeah, but is there —
MR MILLER: I’m just not going to —
QUESTION: — any credible collaboration or process –
MR MILLER: I’m just not going to speak to beyond what – beyond saying that we continue to monitor and collect information.
QUESTION: Well, does that – well, but, I mean, one could infer from that that, yes, there is an ongoing process inside the administration, or one could infer from it that there isn’t and it’s not something that is being considered.
MR MILLER: I’m – and I’m —
QUESTION: Is it something that is being considered —
MR MILLER: I am just not going to —
QUESTION: — as you look at, as you say —
MR MILLER: Sorry for interrupting you.
QUESTION: You’re continuing to monitor the situation, but as you continue to monitor the situation, is that something that you’re looking at?
MR MILLER: So I’m not going to speak to the internal deliberations. I’ll say we monitor – we are monitoring, we collect information, and we continue to engage in conversations with the Israeli Government about the importance of adhering to international humanitarian law as they conduct this campaign.
QUESTION: Can I just follow up on that, collecting information? Can you clarify what you’re – towards what end are you collecting information?
MR MILLER: Again, I – we are always monitoring the way this campaign is conducted. We are monitoring the way U.S. weapons are used. We are monitoring the way that other weapons are used. And we are in constant conversations with the government of Israel about steps that they can take to minimize civilian harm, about steps that they can take to establish enduring deconfliction routes – you’ve heard me talk about that from this podium before – so civilians can get out of harm’s way. There are a number of things that we continue to monitor and engage in conversations with the Israeli Government about.
QUESTION: Does the fact that you’re collecting information mean that you have seen potential signs of violations of international law that prompted you to start this?
MR MILLER: No, I would not take that conclusion at all. This is something that we always do with respect to conflicts all around the world, is that we monitor what’s happening, we collect information. But you should not read into it any more than that.
QUESTION: Thank you very much. Just to follow up on the points being raised by my colleague, if it is determined that there were war crimes committed in Gaza by either side again, is the U.S. committed to seeing accountability for the perpetrators of those crimes?
MR MILLER: So I don’t want to address a hypothetical. But of course, always in any country around the world, if we see violations of the laws of war or violations of international humanitarian law, of course we want to see accountability.
QUESTION: I have a quick question. Maybe you have touched upon it. If you have, indulge me. When the President said that Israel is doing indiscriminate shelling of the Palestinians, now wouldn’t that be sort of in violation of the Leahy law?
MR MILLER: So I did touch on this. And what I said, and I’ll repeat, is that we have not made any kind of formal determination of that nature. I think what the President was referring to is that large-scale bombing campaigns, even when carried out with the best of intentions and even when carried out against legitimate military targets, can lead to the unfortunate loss of civilian lives, which we have seen all too often in this conflict.
QUESTION: Yeah. Well, if the President’s terminology is accurate that it was used indiscriminately, would that be in violation of the Leahy law?
MR MILLER: Again, I’m not going to speak to ifs. I’m going to say we have not made that formal determination and —
MR MILLER: The White House can speak to the President’s specific comments, but that’s what I believe he was referring to.
QUESTION: But as far as – the Leahy law is very clear, right? So it would actually determine whether that whatever Israel did is in violation of that particular law.
MR MILLER: And as I said, we have not made that determination.
QUESTION: Okay, the other question: The American administration consistently express its concern about the safety of civilian in Gaza, but in fact, the weapons supplied by United States are responsible for the deaths of tens of thousands of civilian, most of them children, women, and elderly people. So why doesn’t United State administration put strict condition on the use of these weapons to protect the Palestinian civilians?
MR MILLER: So there – with respect to every weapon that we transfer, not just to Israel but to every country around the world, there are conditions on the transfer of those weapons and we expect that they will be used in full compliance with international humanitarian law. And one of the things that we continue to engage with the Government of Israel about is that – is steps that they can take to minimize civilian harm. You’ve heard me talk about those steps from here today. You’ve heard me talk to them other days, as has the Secretary, as has the President. We believe that far too many Palestinian civilians have died as a result of this conflict. We want to see Israel take additional steps to protect innocent civilians. We want to see them establish these enduring deconfliction zones and enduring pauses so – that are predictable so civilians know where they can go to get out of harm’s way, so civilians – so humanitarian assistants know that they can bring assistance in. I’ll go back to what I’ve said a number of times, which is this is such a difficult problem because you have Hamas continuing to embed itself in civilian homes, in civilian infrastructure, to use civilians as human shields, but that doesn’t in any way lessen Israel’s burden to do everything it can to protect civilians, and that is what we are engaging with them on a daily basis to try to achieve.
United States Department of State
Washington DC
14 December 2023
QUESTION: Okay. So I just want to go back to the President’s comments the other day about indiscriminate bombing and then reports that have been coming out since the weekend about U.S. assessments of what the Israelis are doing with U.S.-supplied munitions. The State Department clearly has a stake in this whole thing as part of the rest of the administration, and I am still finding it hard to understand how it is that you guys have not at least come to some kind of preliminary conclusion as to whether you think these weapons are being used in the correct way or if there are questions about that.
MR MILLER: So it remains the case that we just have not made that type of assessment. We are monitoring. We are collecting information, as we do in every conflict around the world. We are engaged in conversations with the Israeli Government about steps that they can take to minimize civilian harm, but that’s not an assessment that we have made.
QUESTION: Well, can I just ask why not?
MR MILLER: We’re not at that point. We are collecting information. We are monitoring —
QUESTION: Well, at what point – at what point do you think it would be appropriate to make an assessment?
MR MILLER: So I am going to – what I will say is —
QUESTION: Well, others seem – others have already.
MR MILLER: Of course they have. We have, I think, a responsibility to be careful and deliberate when we make those kind of assessments, and we’re not at the point yet where we have been able to state that with any degree of certainty.
QUESTION: So you think it is still possible or – not still possible. You think that it is possible that everything that Israel is doing with the weapons that you supply it is fine?
MR MILLER: That is just not an assessment we have made. We have been in conversation with —
QUESTION: No, I know, but —
MR MILLER: Yeah.
QUESTION: I’m asking you do you think that it is possible that there haven’t been any – they haven’t violated any of the end user agreements or —
MR MILLER: There is no way I can sit here from this podium in the middle of a conflict in which they have taken a number of – I mean, they have taken a number of airstrikes, they have engaged on a ground invasion – and make an assessment about how every single action that they have taken was conducted. There’s just no way I can do it. I don’t have the facts to do that. I don’t have the – we don’t have the legal determination to do it. These are always very fact-specific, legal determination. As I said, we’re collecting information and monitoring, as we do with any other – as we do with any conflict around the world, but we’re just not at the point where I can make an assessment.
QUESTION: Well, I get that you haven’t made a determination. But what I’m asking you right now is that because you haven’t made one, is still possible in the minds or the eyes of the administration that everything that Israel is doing is perfectly legit?
MR MILLER: Again, I just don’t want to – I don’t want to speculate about where we might land on every strike, every action that has been taken. We are at the place now where we’re collecting information and monitoring but not able to make an assessment.
QUESTION: There’s legislation that’s been – being – if it hasn’t already been, it’s being introduced on the Hill today that would require you to make such a determination. Is that something that you think is necessary, or is it something that you will make at some point whenever you find it appropriate, that you will make a determination either, yes, they are complying or, no, they’re not complying, or somewhere in the middle? Like —
MR MILLER: Yeah, I haven’t seen that legislation yet so I can’t comment on it.
QUESTION: All right, last one. I just want to ask about Kerem Shalom and the aid. Is it your understanding that it is still only open for inspections and it has not yet been opened as an actual route?
MR MILLER: That is my understanding: it’s open for inspection, not for a route. We continue to push for it to be open and hope that we will achieve that.
QUESTION: Okay. Thank you.
MR MILLER: Humeyra.
QUESTION: Can I get into the details of this collecting information a little bit, Matt? What kind of information are you guys collecting exactly?
MR MILLER: I’m just not going to speak to that with any degree of specificity, other than to say that we are doing the same thing in this conflict that we do with respect to any conflict in the – around the world.
QUESTION: Okay. And —
MR MILLER: We monitor what’s happening and collect information, but I’m not going to get into any specifics.
QUESTION: And what would that process look like? Are you looking at sort of how Israel is carrying out the airstrikes, the ground offensive? Is it only the military conduct, or does it include things like, for example, these Gazan men who were stripped down to their underwear? Does that include those kinds of incidents as well?
MR MILLER: I just don’t want to get into our internal deliberative process, other than to say that we follow the same actions with respect to this conflict, as I said a moment ago, as we do with every conflict in the world. We engage in conversations with our Israeli Government – with our Israeli counterparts about things that we think they can do better. We’ve seen them make progress on a number of areas. And when we have concerns, you often seem them point – speak to those concerns publicly, as we did with respect to those images of detained Palestinian men.
QUESTION: With our Israeli Government?
MR MILLER: I said counterparts, counterparts. (Laughter.) You try getting up here and – you try getting up here and —
QUESTION: I wouldn’t want to do it. (Laughter.)
MR MILLER: Yeah, go ahead.
QUESTION: Thanks, Matt. I wanted to ask about my colleagues reporting on the use of dumb bombs in this conflict. How does the – how does that square with the repeated statements we’ve heard from this building that Israel is taking steps to protect civilians, that they do have the intent to protect civilians?
MR MILLER: So I’m just not going to comment on how they are using any specific weapons. Obviously, the circumstances would – the circumstances of how any weapon are used would be required to draw any kind of definitive judgment. There are different ways you can use any number of munitions. It’s not something I can do from here.
But I will say, I will reiterate, that we have these conversations with our Israeli counterparts at a range of different levels and talk with them about steps we think they can take to minimize civilian harm. We’ve seen them take some of those steps. There are always things that we think that they can do better, and we’ll continue to engage in conversations with them to that effect.
QUESTION: And last one. Given the President’s comments the other day about the waning support for Israel given this indiscriminate bombing, is the U.S. position that it would be tenable to support Israel at the same pace that you are right now for several more months?
MR MILLER: So again, you’re asking me – it wasn’t the way the question was framed, but to answer that question I’ve got to speculate about how long the campaign would go, and that’s just not something I’m willing to do.
QUESTION: I have a couple more. Now, when the President said indiscriminate, he knows what he’s talking about that. This is just not – not just a casual expression on his part, is it? Right? I mean, he has enough information to say —
MR MILLER: I’m sorry, I didn’t know there was a – I thought there was a question coming.
QUESTION: I mean, I’m asking you. This is not just – I mean, he’s been briefed on what happened in the battlefield, what is happening in the bombing, for him to make that assessment. Would you think that would be the case?
MR MILLER: You heard the White House speak to this yesterday. You heard me speak to this yesterday. And what I said is while the White House will speak to his specific comments – and they have – what I believe he was referring to was the impact of the large-scale bombing campaign that even when the intent is to minimize civilian harm you can end up with results where far too many civilians are killed, which is – are the results that we have seen. And as you’ve heard the Secretary say, we have engaged in conversation with them to try to get to narrow the – to try to narrow the gap between their intent and the actual results on the ground.
Briefing Excerpts:
The White House
Washington DC
13 December 2023
Briefing Excerpts:
Q Thanks, Admiral. The President, yesterday, as you alluded to those remarks, he said that Israel was engaged in “indiscriminate bombing” in Gaza. And that -- that that is what had cost -- cost Israel international global support. Does the President believe, based on those comments, that Israel's conduct in this war thus far has been in accordance with international law?
MR. KIRBY: We have every expectation that -- that Israel will do exactly what they say they're doing, which is to continue to go after the terrorist leaders and to do so in a way that minimizes civilian harm. As I said in my opening statement and as the President said, that's their intent. And it's important that the results match that intent.
Q And so, the President was saying yesterday that the results have not thus far matched that intent?
MR. KIRBY: He was expressing concerns that -- that -- that we continue to see civilian casualties in Gaza and, again, that we want to make sure that they're -- that, as they work to minimize, that they actually have those kinds of results, that they are able to minimize civilian casualties.
Q And so, your colleague at the State Department today said that there was not a formal U.S. government determination that Israel was engaged in indiscriminate bombing. Is the President's comment yesterday -- was he speaking for the U.S. government there? He was obviously speaking to donors, but is that -- is it the U.S. government's position that Israel was engaged in indiscriminate bombing in Gaza?
MR. KIRBY: The President was expressing concerns -- again, as I said -- about the civilian casualties that we've seen. And, again, it’s reflective of our constant efforts to urge the Israelis to be as precise and careful as possible. And, again, we know they've stated their intent to reduce civilian casualties. And they have acted on that. I mean, the way they went into the -- the North in a much smaller force than they had said they were going to do or were planning to do; by publishing a map online so that people know where to go; by agreeing to additional, now daily, pauses in the fighting. I mean, they are -- they are making efforts, and they are taking steps. But we want to see -- of course, we want to see more results in that regard. That's what he's referring to.
Q Thanks. I appreciate it. If the President believes Israel is engaging in indiscriminate bombing, wouldn't there be an obligation from the U.S. to put new conditions on military aid?
MR. KIRBY: Every bit of security assistance we give any other country always comes with the expectation that the law of armed conflict is going to be respected and obeyed.
As I said earlier, we're not going to assess every single airstrike here from this particular podium. That wouldn't be appropriate. The Israelis should speak to their operations, but we have every expectation -- as I said to my previous answer there -- that they will act in accordance with the law of armed conflict and do everything that they can to match their intent, which is to minimize civilian casualties.
Q But if they’re -- if they aren’t, then isn't there an obligation for the U.S. to change the way that it's delivering military aid?
MR. KIRBY: Well, I -- that's a hypothetical that I'm not prepared to engage in right now.
Q But it’s not hypothetical if he’s saying “indiscriminate bombing.”
MR. KIRBY: That -- that’s a hypothetical I'm not going to engage in. We have expressed our concerns -- the President has, publicly and privately -- with the Israelis about the need to reduce civilian casualties, and we're going to continue to do that. I expect you’ll -- you'll see Jake address this too when he's in the region.
Q Thank you, Admiral. You're being asked these questions because the President has a tendency to say things about foreign policy and leave them hanging and we don't get to ask him to clarify himself. So, apologies if this gets pedantic for people listening. But did he misspeak yesterday when he said that Israel was carrying out indiscriminate attacks?
MR. KIRBY: You had the opportunity to hear him yesterday on foreign policy when he stood next to the President of Ukraine. So, I take issue..
Q Right. But he wasn’t asked about Israel -- about -- specifically about this.
MR. KIRBY: I take issue with the premise of that question. But the -- the President speaks for American foreign policy. The President speaks and has spoken, Ed, about our concerns over civilian casualties in Gaza and about urging our Israeli counterparts to be more careful and more deliberate.
Q So, you just said he speaks for foreign policy.
MR. KIRBY: Of course, he does.
Q And he said yesterday --
MR. KIRBY: Of course, he does.
Q -- that there were indiscriminate attacks, which, to the rest of the world, is a war crime. So, why isn't the United States now saying that that’s what Israel is carrying out?
MR. KIRBY: The President was speaking to his concerns about -- about making sure we're seeing the results that Israel has claimed is their intent, which is to reduce civilian casualties. That's what he was talking about.
Q Thank you, Karine. John, I'm sorry, it seems that, you know, this interaction between you and my colleagues -- it seems that, to me, the President is making some pretty clear signals to the Netanyahu government. But it seems like you're trying to walk it back. I mean
MR. KIRBY: No.
Q -- I don't know if that's correct or not. So, please walk me through it.
MR. KIRBY: No.
Q Is the military strike, military campaign by Israel -- is it surgical or indiscriminate, according to the administration at this point?
MR. KIRBY: As I've said a whole bunch of times since I’ve been up here, we're not going to armchair quarterback this from this particular podium. Let me finish. We're not going to -- we're not going to characterize every airstrike. We're not going to speak for Israel- -- Israeli military operations. The President was reflecting a concern that we have had for some time and will continue to have as this military operation proceeds about the need for reducing civilian harm and being as precise and careful and deliberate as possible.
Q And one last one, I promise. When you say that the U.S. requires Israel and all other allies to obey requirements of the law of armed conflict when they're using U.S. weapons, how can you ensure that when the administration has bypassed congressional oversight on this, debate on this, and also internal State Department debate on this?
MR. KIRBY: I'm not sure I understand the premise of the question.
Q Well, you just sent a whole bunch of weapons on -- on Saturday without waiting for Congress, correct?
MR. KIRBY: We have a normal process for pr- -- providing aid and assistance to foreign countries -- Ukraine and to Israel -- and that's all done within the -- the normal, standard consultative process.
Q Thank you. John, hey. I guess “indiscriminate,” just by definition, means “without discrimination.” It means “not deliberate,” “not careful.” I'm just wondering, and I think my colleagues are trying to get at this: Why insist that the intent is there to minimize civilian casualties when the President himself said yesterday that Israel is bombing indiscriminately?
MR. KIRBY: Sometimes in war -- and, again, I'm not speaking for the Israelis. Sometimes in war, your best plans, your best execution of those plans doesn't always go the way you want it to go. It doesn't always go the way you expect it to go. We know that from bitter experience in our own military. No matter how precise and targeted we tried to be in Iraq and Afghanistan, there were times when we caused civilian casualties as well. That's one of the reasons, M.J., that we sent a couple of military advisors over there -- some senior generals who had experience in that kind of urban warfare -- to talk to the Israelis before they moved into Gaza, to help them learn from our own mistakes. So, sometimes in war, the best plai- -- the best laid plans just doesn't -- they don't get executed exactly the way you want and, unfortunately, civilian casualties result.
Q So, you're saying they are trying their best --
MR. KIRBY: I am saying, as I’ve --
Q -- to minimize civilian casualties, but, in practice, that is not what you are seeing happen?
MR. KIRBY: I'm saying that there is a clear intent by the Israelis -- an intent that they have admitted to publicly -- that they are doing everything they can to reduce civilian casualties. I am saying and I have said earlier that we are seeing them act on that intent in positive ways. And I just went through a couple of details on that. Airstrikes, for instance, have reduced since they've started to move in more towards the south. They have relied less and less on airstrikes and more and more on ground troops, which allows you to be more precise. So, they have taken measures to act on that intent. But as I said in my opening statement, results really count. And we're still seeing some civilian casualties. So, we're still going to talk to them about doing everything they can to reduce that.
Q So, you’re saying both things are happening? In some ways, they are acting on their intent to be more careful, be more deliberate, but on the other hand, they are still bombing indiscriminately?
MR. KIRBY: We are -- they are -- we know they have the intent. We know they're acting on the intent. Civilian casualties continue to happen. And, again, we're going to keep urging them to reduce those.
Q What’s the tipping point for the President that prompted him to make these remarks and -- and warn about Israel losing their national support?
MR. KIRBY: This has been a message we have consistently conveyed to Israeli counterparts since the early, early days of this conflict -- mostly through private channels, but we have talked publicly about this. You’ve heard the Vice President talk about it. You've heard Secretary Austin talk about it out at the Reagan Forum. You heard Secretary Blinken talk about it in his last -- now third trip to the region. This is not a new message.
Q But we haven’t heard the President talk about it. Was there something specific that prompted him to himself speak out about this?
MR. KIRBY: The President is concerned, as he said he's concerned, about the need to reduce civilian casualties. And certainly he's concerned. As a friend of Israel, he is concerned about Israel not losing international support and public opinion for what they're trying to do. That -- that comes from -- that comes from a lot of respect and affection for Israel and wanting to make sure that -- that Israel has the -- what they need to go after Hamas and they have the support that they need to do that over time.
Q Thank you. I want to go back to the President’s comment on indiscriminate killing. Correct me if I'm wrong, John, but you seem to give the Israelis more of a benefit of the doubt that your -- than your own President. You said that Israel is acting upon your advice. Can you give me an example of exactly where they acted upon your advice? In terms of casualties, civilian casualties are mounting. The attack on the South is just equally as bad as the attack in the North. So, just give ---
MR. KIRBY: I’m happy to repeat it.
Q -- give me some examples of (inaudible) --
MR. KIRBY: I -- I’m happy to repeat them. I gave them earlier. They have -- they -- they moved in -- into Northern Gaza on the ground in a way that was much smaller than they had previously planned to do. And we think that that was an outgrowth of some of the advice and counsel that we provided them about urban warfare. They have reduced the number of airstrikes that they're -- that they're conducting right now as they pursue Hamas terrorists in the South. They have published online maps of places where people can go or not to go. That's basically telegraphing your punches, and there's very few modern militaries in the world that would do that. I don't know that we would do that -- to put a map out there and say, “Hey, here's where you can go where it's safe, and here's where you shouldn't go because we might be striking there.” Those are all good examples. And I -- and I would also add, as I said in my opening statement: Even when they were operating in the North, they added human- -- humanitarian corridors to allow people to leave. They are now talking about additional corridors in the South, as well as the possibility of more daily humanitarian pauses in the fighting so that people can get access to assistance.
The White House
Washington DC
14 December 2023
Briefing Excerpts:
Q And I know this came up yesterday, but I just want to be clear: Does the administration agree that indiscriminate attacks are prohibited under international humanitarian law?
MR. KIRBY: If -- if -- if attacks, obviously, are -- are not done with due concern to civilians, then -- then, obviously, that's -- that's a deep concern.
Q But you have stressed that the President, you know, speaks for American foreign policy. He has said that Israel is engaged in indiscriminate bombing in Gaza. So then wouldn't it stand to reason that this is a violation?
MR. KIRBY: I think -- I've answered that question I don't know how many times yesterday. I have nothing more to add on that. The President was referring to concerns that he has and that we have that we know the intent is there by the Israelis to limit civilian casualties and damage to civilian infrastructure but sometimes the results don't always come out that way. That's what he was referring to.
Q But you keep stressing their intent -- that it's Israel's intent to minimize civilian casualties. But that intention isn't what we're seeing on the ground right now. By the President's own admission, they are bombing indiscriminately. So, are you saying that their intent is somehow more important than the result?
MR. KIRBY: Both are important. I mean, obviously, the most important thing is the results and the outcomes, but it has to be driven by a sincere intent to limit civilian casualties. So, both are important.
Look, I don't want to -- I don't think it's useful to revisit the whole discussion from yesterday because you're not going to get a different answer out of me. We don't want to see a single more innocent civilian killed or wounded. One is too many. We've -- we've said that over and over again. And we're working hard with the Israelis -- and Jake is doing that right now -- to -- to get a better sense of what they can do, as I said in my opening statement, to be more surgical, to be more discriminant in their -- in their targeting. That's important. At the same time, it's important that they have the tools and capabilities they need to go after a truly genocidal threat represented by Sinwar and these Hamas terrorists.
Biden-Harris Administration US$14.3+ Billion Request For State Of Israel
From media reporting: “The Israeli military has used 2,000-pound MK-84 bombs, 1,000-pound MK-83 bombs and 155 mm artillery shells manufactured in the United States. The Wall Street Journal and The Washington Post reported that the United States has provided more than 15,000 bombs and 57,000 155 mm artillery shells to Israel since Oct. 7 and that Israel has dropped more than 22,000 American-supplied bombs on Gaza. The Biden-Harris Administration recently approved an additional 14,000 rounds of tank ammunition.”
“US$10.6 billion for assistance through the Defense Department, including air and missile defense support, industrial base investments and replenishment of US stocks being drawn down to support Israel. The aid aims to bolster Israel’s air and missile defense system readiness and support its procurement of Iron Dome and David’s Sling missile defense systems and components, as well as the development of the Iron Beam (Israel’s ground-based laser air defense system). Congressional leaders have said the package will also include precision-guided munitions, kits that turn regular bombs into precision weapons and artillery shells. US$3.7 billion for the State Department to strengthen Israel’s military and enhance US Embassy security.” Humanitarian Assistance: US$9.15 billion. This includes support for Israel, Gaza, and Ukraine. The breakdown of this funding is “flexible, The White House budget director Shalanda Young told reporters, depending on where the need is greatest.”
From Geneva, Switzerland-based International Committee of the Red Cross
Rule 12. Definition of Indiscriminate Attacks
Rule 12. Indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
Practice- Volume II, Chapter 3, Section B. Summary
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
International armed conflicts
This definition of indiscriminate attacks is set forth in Article 51(4)(a) of Additional Protocol I.[1] France voted against Article 51 at the Diplomatic Conference leading to the adoption of the Additional Protocols because it deemed that paragraph 4 by its “very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent right of legitimate defence”.[2] Upon ratification of Additional Protocol I, however, France did not enter a reservation to this provision. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”.[3] A report on the work of Committee III of the Diplomatic Conference stated that there was general agreement that a proper definition of indiscriminate attacks included the three types of attack set down in this rule.[4] With the exception of subparagraph (c), this definition of indiscriminate attacks is also contained in Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons.[5]
A large number of military manuals contain this definition of indiscriminate attacks, in whole or in part.[6] It has similarly been relied upon in official statements.[7] This practice includes that of States not party to Additional Protocol I.[8]
Non-international armed conflicts
Additional Protocol II does not contain a definition of indiscriminate attacks, even though it has been argued that subsections (a) and (b) of the definition contained in this rule are included by inference within the prohibition contained in Article 13(2) on making the civilian population the object of attack.[9] With the exception of subsection (c), this definition has also been included in more recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain Conventional Weapons.[10] In addition, the definition is included in other instruments pertaining also to non-international armed conflicts.[11]
This definition of indiscriminate attacks is also set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.[12] It is supported by official statements.[13]
The 24th International Conference of the Red Cross in 1981 urged parties to armed conflicts in general “not to use methods and means of warfare that cannot be directed against specific military targets and whose effects cannot be limited”.[14]
Further evidence of the customary nature of the definition of indiscriminate attacks in both international and non-international armed conflicts can be found in the jurisprudence of the International Court of Justice and of the International Criminal Tribunal for the Former Yugoslavia. In its advisory opinion in the Nuclear Weapons case, the International Court of Justice stated that the prohibition of weapons that are incapable of distinguishing between civilian and military targets constitutes an “intransgressible” principle of customary international law. The Court observed that, in conformity with this principle, humanitarian law, at a very early stage, prohibited certain types of weapons “because of their indiscriminate effect on combatants and civilians”.[15] In its review of the indictment in the Martić case in 1996, the International Criminal Tribunal for the Former Yugoslavia examined the legality of the use of cluster bombs according to customary international law, including the prohibition of indiscriminate attacks involving a means or method of warfare which cannot be directed at a specific military objective.[16]
No official contrary practice was found. No other definition of indiscriminate attacks has officially been advanced, and the statements made with respect to indiscriminate attacks in general under Rule 11 may be based in some or more instances on an understanding of indiscriminate attacks as contained in Rule 12, especially since no other definition exists.
Interpretation
This definition of indiscriminate attacks represents an implementation of the principle of distinction and of international humanitarian law in general. Rule 12(a) is an application of the prohibition on directing attacks against civilians (see Rule 1) and the prohibition on directing attacks against civilian objects (see Rule 7), which are applicable in both international and non-international armed conflicts. Rule 12(b) is also an application of the prohibition on directing attacks against civilians or against civilian objects (see Rules 1 and 7). The prohibition of weapons which are by nature indiscriminate (see Rule 71), which is applicable in both international and non-international armed conflicts, is based on the definition of indiscriminate attacks contained in Rule 12(b). Lastly, Rule 12(c) is based on the logical argument that means or methods of warfare whose effects cannot be limited as required by international humanitarian law should be prohibited. But this reasoning begs the question as to what those limitations are. Practice in this respect points to weapons whose effects are uncontrollable in time and space and are likely to strike military objectives and civilians or civilian objects without distinction. The US Air Force Pamphlet gives the example of biological weapons.[17] Even though biological weapons might be directed against military objectives, their very nature means that after being launched their effects escape from the control of the launcher and may strike both combatants and civilians and necessarily create a risk of excessive civilian casualties.
From New York, New York-Based United Nations
Background
Even though the prohibition of certain behavior in the conduct of armed conflict can be traced back many centuries, the concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when international humanitarian law, also known as the law of armed conflict, was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. Several other related treaties have been adopted since then. In contrast, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. Both Hague Law and Geneva Law identify several of the violations of its norms, though not all, as war crimes. However there is no one single document in international law that codifies all war crimes. Lists of war crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.
The 1949 Geneva Conventions have been ratified by all Member States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules contained in these treaties have been considered as part of customary law and, as such, are binding on all States (and other parties to the conflict), whether or not States have ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the protection afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.
Definition
Rome Statute of the International Criminal Court
Article 8
War Crimes
The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of this Statute, ‘war crimes’ means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
Wilful killing
Torture or inhuman treatment, including biological experiments; Wilfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Unlawful deportation or transfer or unlawful confinement;
Taking of hostages.
Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; Pillaging a town or place, even when taken by assault; Employing poison or poisoned weapons; Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Taking of hostages; The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Pillaging a town or place, even when taken by assault; Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; Killing or wounding treacherously a combatant adversary;
Declaring that no quarter will be given; Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
Elements of the Crime
War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of an armed conflict, either international or non-international. What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. For example, Article 8 of the Rome Statute categorises war crimes as follows: Grave breaches of the 1949 Geneva Conventions, related to international armed conflict; Other serious violations of the laws and customs applicable in international armed conflict; Serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character; Other serious violations of the laws and customs applicable in armed conflict not of an international character. From a more substantive perspective, war crimes could be divided into: a) war crimes against persons requiring particular protection; b) war crimes against those providing humanitarian assistance and peacekeeping operations; c) war crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare. Some examples of prohibited acts include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. War crimes contain two main elements: A contextual element: “the conduct took place in the context of and was associated with an international/non-international armed conflict”; A mental element: intent and knowledge both with regards to the individual act and the contextual element. In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause. In both types of conflicts protection is also afforded to medical and religious personnel, humanitarian workers and civil defence staff.
LINK TO COMPLETE ANALYSIS IN PDF FORMAT
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