Tuesday, March 10, 2015

  • Tuesday, March 10, 2015
  • Elder of Ziyon
JINSA commissioned several retired generals to assess Operation Protective Edge. Their report stands in stark contrast to the biased reports written by Amnesty and Human Rights Watch.

The generals are:

General Charles Wald, USAF (ret.),
Task Force Chair Former Deputy Commander of United States European Command

Lieutenant General William B. Caldwell IV, USA (ret.)
Former Commander, U.S. Army North 

Lieutenant General Richard Natonski, USMC (ret.)
Former Commander of U.S. Marine Corps Forces Command 

Major General Rick Devereaux, USAF (ret.)
Former Director of Operational Planning, Policy, and Strategy - Headquarters Air Force 

Major General Mike Jones, USA (ret.)
Former Chief of Staff, U.S. Central Command

The authors know the Laws of Armed Conflict far better than the NGOs do. They recognize Hamas' unique tactics of cynically putting their own civilian population in danger in order to add a public relations dimension to what they call "unrestricted warfare":

In 1999, two Chinese People’s Liberation Army officers asserted that the ability to blend technologies with military actions and political-influence activities, a technique they dubbed “unrestricted warfare,” signifies a new type of war, in which a key principle is “no longer using armed force to compel the enemy to one’s will, but rather, using all means, military and nonmilitary, lethal and non-lethal, to compel the enemy to accept one’s interests.”97 In the 2014 Gaza War,

Hamas appears to have pursued precisely such unrestricted warfare. Their concept of operations aimed to force Israel into making concessions – such as reopening Gaza’s borders – as a result of political pressure. What was novel about Hamas’s approach, however, was where and how they sought to create that pressure. A key vulnerability for liberal democracies, such as the United States or Israel, is their citizens’ aversion to excessive or unjustified casualties. Though voters are willing to support wars – and casualties – that are perceived as legitimately defending the homeland or securing vital national interests, popular support for military operations can decline when these goals begin to be doubted or overshadowed by deaths of civilians from the opposing side and, especially, of their own soldiers. ...

Hamas certainly engaged in such classic irregular warfare, and utilized its enhanced arsenal and conventional military structure to inflict greater casualties among the IDF. Hamas’s infiltration tunnels, dug into Israeli territory, were particularly effective for striking at the rear of IDF formations, fundamentally transforming the location and definition of the “frontline” of the conflict. Hamas’s greater focus, however, was on the exploitation of the presence of civilians in the combat zone. It used unlawful concealment among civilians to constrain and blunt the effectiveness of IDF military operations. It sought to neutralize the IDF’s precision-guided munitions by covering and concealing its leadership and military forces amid and often below civilian infrastructure.99 It utilized its expanded tunnel networks to maneuver and supply its forces while limiting the likelihood of being detected or targeted.100 And it deliberately and unlawfully placed command and control, firing positions and logistical hubs underneath, inside or in immediate proximity to structures it knew the IDF considered specially protected, such as hospitals, schools and mosques, in full knowledge that this would substantially complicate IDF targeting decisions and attack options.101

But Hamas did not just stop with using civilians as a passive defense tactic. Its contribution to unrestricted warfare doctrine was to ensure maximum political pressure would be exerted on Israel by, at best, acting in reckless disregard of civilians’ safety or, at worst, consciously and actively provoking IDF fire on Gazan civilians. It did so in part simply by virtue of embedding itself among the surrounding civilian infrastructure.102 Simultaneously it launched rockets and attacked IDF forces from within or in direct proximity to international safe havens – especially UNRWA facilities – and from civilian buildings, often forcing civilians to congregate in these areas immediately afterward. Further, Hamas reportedly discouraged or actually prevented civilians from leaving buildings after the IDF targeted them with warning communications and munitions.103 Hamas’s strategy for victory depended on incurring civilian casualties among its own people. 

The public that Hamas sought to sway with these casualties, however, was not that of its opponent. Rather, its strategy appears to have been to discredit Israel in the international community more broadly, by portraying the IDF’s military operations as indiscriminate and disproportional.104 This would subsequently create pressure from Hamas’s regional supporters and others against Israel to agree to a ceasefire on Hamas’s terms. Most remarkably, Hamas undertook this effort in earnest despite intentionally and egregiously violating the Law of Armed Conflict (LOAC) through its targeting of Israeli civilians and its exploitation of Gazan civilians to shield its military activities (as we discuss below).105 By shrewdly controlling access to much of the Gaza Strip by media and international organizations, Hamas was also able to portray collateral damage caused by its own strategy and actions as illegal IDF conduct.
The generals also directly criticize NGOs for their ignorance of the laws of armed conflict:
These statements suggest a concerted strategy on the part of Hamas to exploit misunderstandings of LOAC to gain international condemnation of Israel. Such attempts to move the conflict from the battlefield, where Israel enjoyed military and technological superiority, to the court of international opinion appears to have been part of Hamas’s concept of operations in the 2014 Gaza War. 42 This strategy depended not just on distorting the principles of LOAC to assert claims of unlawful conduct against Israel but also – and more disturbingly – on ensuring Gazan civilian casualties to support Hamas’s assertions of Israeli legal violations.

Unfortunately, it appears to have been a successful strategy. Numerous individuals claiming to be experts in the relationship between law and military operations quickly seemed to accept Hamas’s assertions of unlawful IDF operations. On July 23, 2014, the U.N. High Commissioner for Human Rights, Navi Pillay, stated: “There seems to be a strong possibility that international law has been violated, in a manner that could amount to war crimes.” The U.N. Human Rights Council subsequently issued a resolution condemning “in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations” in Gaza.125 In September, Human Rights Watch issued a report declaring that “three Israeli attacks that damaged Gaza schools housing displaced people caused numerous civilian casualties in violation of the laws of war.”126 And, in November, Amnesty International concluded that the IDF’s “use of large aerial bombs [to attack civilian homes] suggests that these attacks either were intended to cause the complete destruction of the targeted structure or a determination to ensure the killing of targeted individuals without due regard to the killing and destruction to those in their immediate vicinity,” which would constitute “prima facie evidence of serious violations of international humanitarian law.”127

These condemnations were premised on premature, effects-based assessments of military operations, or on the same flawed understandings of the law that Hamas was promoting, while refusing to apply that same law to its own actions. These routine distortions of the actual law applicable to military operations produced a fundamentally false narrative of legal compliance and non-compliance during this conflict, one that misrepresented Israeli attempts to minimize civilian deaths and the legality of their targeting Hamas and other factions engaged in military operations.
Ironically, the authors criticize Israel for going beyond the laws of armed conflict in protecting civilians - which could hurt Western armies in future wars:

An accurate understanding of LOAC is essential to properly and credibly assess the legality of combat operations. Unfortunately, it is poorly understood, allowing it to be easily distorted to present a false narrative that combat operations producing civilian casualties are inherently unlawful. Such distortions are further enabled by the almost instinctive, but legally invalid, tendency to judge military actions based on effects of combat operations.

Effects-based critiques distort this equation by relying on post hoc consequences as the sole indication of LOAC compliance. However, the legal standard for compliance turns on the reasonableness of the attack decision at the time it was made based on available information. For example, a commander may launch an attack on an identified enemy command and control bunker or tunnel, having made good faith efforts to identify all available intelligence related to the target, based on the conclusion that the bunker is used exclusively for military purposes. However, it may turn out that the enemy had encouraged civilians to shelter in the bunker, with the attack producing the effect of civilian casualties. This effect is not sufficient to conclude the law was violated. Instead, as clearly established by LOAC, compliance must be assessed on the totality of the military situation at the time the decision was made.132

In the first instance, it may seem that the appropriate response to such distorted analyses is for militaries to go to even greater lengths – above and beyond LOAC requirements – to demonstrate their respect for innocent life and avoid condemnation. Indeed, such was Israel’s approach the 2014 Gaza War. Based on this Task Force’s observation, however, this is not necessarily an effective response to offset this distortion. What may appear at first glance as a rush to defend civilians actually enables a race to the bottom, empowering those who would exploit efforts to mitigate civilian risk while gutting existing legal principles – all to the detriment of civilians’ safety.

The abusive use of law to gain tactical and strategic advantage by hybrid enemies, and to discredit lawful conduct of professional military forces, must be countered by defending – rather than abandoning – those legal principles. Military restraint beyond the carefully developed and time-tested boundaries of LOAC should be imposed only when it is perceived to produce a tactical, operational or strategic advantage, and not merely in response to anticipated improper invocation of inapposite legal standards. Furthermore, policy-based constraints should be clearly demarked from legal obligations, so that raising standards in one instance does not set a precedent to which a military force will be expected to adhere in the future. Otherwise, any constraints beyond LOAC adopted by one country will submit others to great pressures to conform similarly. Once this becomes entrenched, it will be difficult to walk back. The result of conflating policy and law, and of attempting to apply legal standards other than LOAC to armed conflicts, will not only be a greater danger to national security – as armed forces will become much more limited in their ability to respond to and counteract threats from unconventional adversaries operating among civilian populations – but an increased risk to civilians as well. The application of standards more exacting than LOAC to armed conflicts may produce the perverse effect of incentivizing unconventional adversaries to dress as civilians, hide among civilians, launch operations from civilian areas, use civilians as human shields or even (as Hamas did) deliberately seek to instigate civilian casualties, since any civilian deaths could be considered a legal violation. If such an approach to assessing legality in warfare becomes the norm, the combat power and initiative of military force will be functionally neutered. Even reasonable targeting errors resulting from the inevitable “fog of war” would subject service-members and commanders to criminal responsibility based on distorted legal principles, establish a standard that no military could reasonably meet, delegitimize and constrain the U.S. military, embolden potential adversaries and, therefore, increase the risk to civilian populations unable to defend themselves against terrorist entities. 

Therefore, proper adherence to LOAC entails stringent observance of LOAC requirements and imposition of additional policy-based constraints only when they serve the interests of mission accomplishment. The United States and its allies should devote resources to countering existing misunderstandings of LOAC. When restraint is exercised for reasons other than legal obligations, the United States should also explain its motivations and reasoning, lest it contribute to further misunderstanding of LOAC requirements.

Amnesty, HRW and the UN make pronouncements about the laws of armed conflict without actually knowing those laws. And by distorting the law, they ironically end up endangering more civilians.

Which is a strategy that Hamas embraces.

Here is the entire report.

(h/t Richard Landes)

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