By David J. Butler

The phrase “war crimes” is losing its meaning.

Once, it described a legal conclusion reached after investigation, evidence and judgment. Today, it is increasingly deployed as a political accusation before any of those things occur.
Nowhere is that more apparent than in discussions of Israel’s war against Hamas. The charge appears routinely in headlines, speeches, demonstrations and social media posts. It is often presented not as an allegation to be examined but as an established fact.

Increasingly, even some friends of Israel concede the point, arguing only about the scale of the crimes or noting that other democracies have faced similar accusations.

But that misses the central issue. War crimes are not political opinions. They are legal findings.

In every civilized justice system, serious accusations require serious proof. We do not accuse someone of murder simply because a death occurred. We investigate. We gather evidence. We examine intent, circumstances and competing explanations. Only then do we reach a judgment. Why should war crimes be different?

The modern law of armed conflict emerged from the devastation of World War II. The Geneva Conventions sought to impose legal and moral limits on warfare while preserving the ability of nations to defend themselves. Their drafters understood that civilians can die during lawful military operations. If every civilian death constituted a war crime, virtually every war in history would qualify.

Instead, the law requires difficult judgments. Was the target military? Were precautions taken? Were alternatives available? What information did commanders possess at the time? Was the anticipated military advantage significant enough to justify the risks involved?

These are not technicalities. They are the law. That is why accusations are supposed to be investigated before they become conclusions.

Yet when Israel is involved, many people reverse the process. The verdict comes first. The evidence follows later, if at all. Part of the reason is that Israel is fighting an enemy unlike those envisioned by the architects of Geneva.

The postwar legal framework assumed that combatants and civilians would remain distinguishable from one another. Hamas, Hezbollah, ISIS and similar organizations have built military strategies around destroying that distinction. Weapons are stored in civilian areas. Military operations are conducted from residential neighborhoods. Command facilities are placed beneath schools, hospitals and apartment buildings.

This reality does not exempt Israel from international law. Nor should it. But it does make legal judgments far more complicated. Indeed, it raises a question too often ignored in public debate: What is a democracy supposed to do when its enemy deliberately turns civilian populations into part of the battlefield?

The Geneva Conventions were designed to protect civilians by separating them from military operations. Terrorist organizations have learned that they can gain military and political advantages by collapsing that separation. The very rules intended to protect civilians are manipulated by those willing to place civilians in danger.

That does not eliminate Israel’s obligations. But it does make snap judgments intellectually dishonest.

The central question is not whether civilians died. The central question is whether military actions complied with international law despite an enemy’s deliberate efforts to blur the distinction between civilian and military space. That determination requires evidence, context and process. Yet the accusation of war crimes is increasingly used not as the conclusion of a legal inquiry, but as a substitute for one.

The phrase itself becomes the argument. Once attached, the burden shifts. The accuser no longer feels obligated to prove guilt. The legal conclusion is assumed before the legal analysis begins. That is not how law works. Nor should it.

Israel is scrutinized because it claims to be a democracy governed by law. Hamas makes no such claim. We rightly expect more from democracies than from terrorist organizations.
But higher standards do not justify abandoning standards altogether. A nation that claims to follow the law should be judged according to the law — not according to emotions, headlines or ideological preferences.

What is most troubling about the casual use of the phrase “war crimes” is that it obscures the very conduct that created the dilemma in the first place. The world sees the consequences of war but often ignores the deliberate strategy that made those consequences more likely. The party attempting to comply with the law is placed in the dock before the facts are known, while the party that systematically undermines the law often fades into the background.

That inversion is not justice. It is politics masquerading as law.

The suffering in Gaza is real. Innocent people have died. No decent person should minimize that tragedy. But grief is not a legal determination. Outrage is not evidence. And civilian casualties, standing alone, do not establish criminality.

The laws of war were created because war is terrible and because emotions are least reliable when suffering is greatest. Precisely for that reason, the law insists on process.
The issue is not whether Israel deserves scrutiny. It does. The issue is whether accusations of war crimes still require proof before they become accepted truths. If the answer is yes, then we should stop treating allegations as verdicts.

The charge of war crimes carries extraordinary moral and legal weight. It should be reserved for circumstances in which facts have been examined, standards have been applied and lawful process has run its course. Anything less does not strengthen international law. It weakens it.

David J. Butler is an attorney. He is president of Dvash Consulting, LLC and a member of the ownership group of Mid-Atlantic Media, which owns and publishes Baltimore Jewish Times.