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If Israeli Tactics in Gaza Are Legal, No One is Safe: Response to Michael N. Schmitt and John J. Merriam

[IDF's Nahal Brigade conducting a search in the Hebron area. Image by Israeli Defense Forces.] [IDF's Nahal Brigade conducting a search in the Hebron area. Image by Israeli Defense Forces.]

In their forthcoming paper, The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, Michael Schmitt and John J. Merriam examine Israel’s targeting practices against the Gaza Strip and Lebanon. Their purpose is to scrutinize the context in which these attacks take place as well as the Israeli Army’s relevant legal standards regulating them.

Their findings are based on two visits to Israel in December 2014 and February 2015. During those visits, the Israeli Army granted them:

…unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers. (3)

The methodological approach should raise, at least, a few red flags. Schmitt and Merriam are aware of their problematic methodological approach and write:

Although the approach might be perceived as leading to a pro-Israeli bias, the sole purpose of the project was to examine Israeli targeting systems, processes and norms in the abstract; no attempt was made to assess targeting during any particular conflict or the legality of individual attacks. (3)

In essence, they acknowledge that this entire paper examines what IDF lawyers say rather than what IDF operators do. At best – we should read it as a supplementary report to the Israeli Army’s war manual: it is just theoretical. That may be acceptable, but the authors go on to say:

With respect to the resulting observations and conclusions, note that the authors combine extensive academic and operational experience vis-à-vis targeting and therefore were in a unique position to assess the credibility and viability of Israeli assertions. The result was a highly granular and exceptionally frank dialogue. (4)

So what they tell us at first, that this paper is just “in the abstract,” they also claim is “granular and exceptionally frank.” Moreover, they claim that their combined experience enables them to assess the “credibility and viability” of Israel’s claims. This is an arguably impossible task if they do not assess Israel’s assertions about their practices in comparisons to actual practice. In  fact, the next fifty-some pages read like an estimable apology on Israel’s behalf. The authors accept nearly everything their respondents say, and even what they decline to say, at face-value. The authors assert the authoritative nature of their findings although they do not interview a single Palestinian or Lebanese civilian who has been subject to Israel’s military attacks. They do not even bother to review the reports describing Israel’s operational practices. Several of those reports have alleged that Israel’s practices constitute war crimes. The words “war crimes” appear only twice in the paper: in the titles of articles they cite in their footnotes. Their exceptional reference to Human Rights Watch or Amnesty International reports are primarily to support claims regarding attacks on Israel by Hamas or Hezbollah.

As my colleague and legal scholar on laws of war explained to me, he has become accustomed to reading such reports like an anthropologist. Indeed, the value of this paper is its insightful display of the production of knowledge on national security and counter-terrorism from the US and Israeli metropolises. While this may be reason to dismiss the paper all together, it is also precisely why the paper merits response. Schmitt and Merriam are hardly insignificant. Their tremendous body of scholarship and influence means that their interventions will be taken very seriously and will inevitably bear upon the ways we come to understand, justify, and/or reject the development of the laws of armed conflict. This short piece aims to use three select examples to highlight the methodological shortcomings that give rise to insufficiently tested findings that are emblematic of the paper. For the sake of specificity and fidelity to context, I will focus just on Operation Protective Edge, Israel’s 2014, 51-day attack on the Gaza Strip.

1)      The single most important facet of warfare from Israel’s perspective is the proximity of the threat.”

In this passage beginning on page 5, Schmitt and Merriam discuss the implications of proximity of the threat emerging from the Gaza Strip. They assess that such proximity denies Israel the advantage of “expeditionary force” and, therefore, it must be prepared to fight “…within minutes, and sometimes within view, of their homes.” Conversely, this spatial reality affords Israel the benefit of interior position or, “the virtue of enabling one to concentrate forces quickly and maneuver them in any direction the situation may warrant.”

Schmitt and Merriam discuss the military implications of the Gaza Strip’s proximity but fail to address its fundamental nature: Israel’s military occupation. The Gaza Strip is the western-most frontier of Mandate Palestine that Israel did not conquer in the 1948 War, which  it subsequently occupied in 1967. The coastal enclave is proximate because Israel established itself in the area already inhabited by native Arabs and who were promised self-determination under the League of Nations Mandate system. This history matters for two reasons.

Firstly, this history brings into play the right of a people under alien occupation and colonial domination to use force in pursuit of their self-determination captured in  Article 1(4) of Additional Protocol I. This provides the legal justification for Palestinians to use force against Israel. Notably, the authors mention this right much later in the paper where they muse whether Israel’s opposition to Article 1(4) mirrors the U.S.’s position, that national liberation movements lack the resources and accountability mechanisms to fulfill the duties and obligations of international law. While they do not resolve this issue, they note,

Although not directly bearing on the issue of Israeli targeting, note that the Israeli position deprives members of national liberation movements of any belligerent immunity for their attacks on Israeli targets, including those that qualify as military objectives. (31)

They do not raise the obvious conundrum that Israel’s position simultaneously incapacitates the Palestinian population from using force, even with weapons capable of precision-strikes, while fully and arbitrarily subjecting them to Israel’s military prowess. In fact, they qualify this condition by claiming that it does not bear “on the issue of Israeli targeting” at all. Schmitt and Merriam note this without irony as they discuss the “tyranny of context.”

Secondly, the status of the Gaza Strip, namely whether or not it is occupied, impacts Israel’s permissible use of force against it. The authors say that Hamas has been in control of the coastal enclave since 2007 but fail to probe whether that control is tantamount to the cessation of occupation under the Geneva Conventions. While Israel has insisted that its occupation ended upon its unilateral withdrawal in 2005, numerous scholars (see here, here, and here) as well as the Office of the Prosecutor and the Human Rights Council Fact-Finding Mission to Gaza have insisted that the occupation continues and remains consequential. In sum- if the territory is occupied, Israel has the duty to protect the civilians under occupation and in cases of unrest, it can use law enforcement authority to resume order. In contrast, if it can invoke self-defense in law (UN Charter and/or customary law) then it can resort to military force. Notably, since 2001 Israel’s High Court has insisted that it can apply both the law of occupation to govern the Occupied Territory as well as the law of armed conflict (LOAC) to quell unrest. (Can’an v. IDF Military Commander).  By 2005, they find that LOAC supersedes Occupation Law. (Public Committee Against Torture in Israel v. The Government of Israel). This means that it can deny Palestinians the right to govern themselves and simultaneously use military force to thwart their resistance to military rule. Israel’s High Court has been in lockstep with its Government in maintaining a military occupation and deeming it a war against terror.

Context here is consequential. The Gaza Strip is not proximate to Israel by random fortune- but because Israel established itself in Mandate Palestine by war and literally removed and dispossessed its native Palestinian inhabitants. This conquest remains contested by Palestinians and that is the root source of ongoing conflict. What Schmitt and Merriam swiftly disregard as proximate asymmetric violence is in fact the function of ongoing and unresolved claims over Israel’s authoritative jurisdiction. Obscuring this context risks creating a new body of law intended to protect a power’s colonial holdings as it gives the impression that Israel is using force to defend itself when, in fact, it is using force to squash Palestinian claims and militarily resolve the dispute over its control. Simultaneously, Israel criminalizes all Palestinian use of force in response, or otherwise, as terroristic. The authors in/advertently reify this false and counterproductive narrative without scrutiny.

2)       “…[C]asualty-aversion leads Israel to liberally apply force…”

In the same section on operational context, Schmitt and Merriam explain that the Israeli Army is a conscript force. The diffuse and shared nature of military service shapes Israeli values and thus how Israel engages in warfare. In particular, the public’s aversion to soldier casualties “…leads Israel to liberally apply force, particularly airstrikes and counter-battery fire, in order to ‘guarantee force protection.’” (8) This, the authors explain, also impacts Israeli sensitivity towards captured personnel and shaped the Hannibal Doctrine- the operational doctrine wherein the mission is to rescue a soldier from captivity at all costs including (fatal) injury to Israeli personnel.

While Schmitt and Merriam do not explicitly say so, the proposition above unduly shifts the risk of warfare from soldiers to enemy civilians; an incredibly controversial position. So much so that it occupied a series of essays and responses between the authors of the proposition and other legal scholars. Proportionality in ongoing hostilities demands that a belligerent’s military advantage outweigh the harm it causes to civilians and civilian infrastructure. Under Israel’s force protection rubric, its military advantage includes heightened security afforded to its soldiers. While all armed forces consider force protection as part of its military advantage, Israel’s proposal is radical in that it considers its soldiers lives to be more valuable than those of enemy civilians. Therefore, when assessing proportionality, it tolerates greater numbers of civilian deaths and injuries so long as that spares its soldiers from harm. The outcome of this almost ensures devastating results. At the most extreme end of this proposition is that a belligerent force could carpet bomb its adversary for the sake of preserving their soldiers’ lives, thus destroying those gains achieved by anti-colonial struggles and captured in Additional Protocols I and II. Colonized and occupied peoples would thus be subject to nearly unregulated military force. Consider the testimony of sixty Israeli soldiers who fought in the 2014 Gaza Offensive testified to very lenient rules of engagement including directives to “shoot at anything that moves.” These rules of engagement may very well reflect Israel’s radical force protection proposition. Notably, Israeli forces killed approximately 2,100 Palestinians, including 504 children during Operation Protective Edge.

Schmitt and Merriam do not take serious issue with this proposition. In fact, they do not mention the implications of Israel’s force protection until some 35 pages later in their section on Proportionality.  There, they simply note their surprise and then their passive acceptance for the novel approach:

Both authors were struck by the weight of accorded in the proportionality analysis to the military advantage of protecting the civilian population and individual soldiers. Although they would not label it unwarranted in light of the unique operational context in which Israel finds itself, it was clear to them that avoidance of harm to the Israeli civilian population and the protection of individual soldiers loomed large in Israeli proportionality calculations. (45)

Among the examples they provide to demonstrate the application of this approach is Israel’s deadly operation in Rafah where its Army applied the Hannibal Doctrine. Schmitt and Merriam mention that Israel’s rules of engagement “…reportedly resulted in as many as 114 deaths in Rafah.” (46) They say nothing more about the significance of these civilian losses that may put Israel’s proposition into question. For example, they do not share that the Israeli Army admitted to sealing off a 1.5 mile radius so that no one could flee.  Nor did they say that according to an Israeli officer, they released 500 artillery shells onto the area over the next eight hours, nor the fact that they also conducted 100 airstrikes over the course of two days. They do not mention that the commander of the Givati Brigade said to the Associated Press "That's why we used all this force…Those who kidnap need to know they will pay a price. This was not revenge. They simply messed with the wrong brigade."

Israel’s proportionality assessment has had horrifying consequences. Schmitt and Merriam discuss nothing of this and simply state that Israel factors in “rescue and survival” into its military advantage in ways that would tolerate greater collateral damage. One of the authors agrees with the Israeli Army’s approach and the other believes that this is only significant for determining “the military feasibility of precautions in attack…” (46) Neither author critically assesses the unprecedented harm this approach would impose on civilians caught in warfare especially those civilians caught in anti-colonial struggles.

3) “The civilians are hopefully frightened into dispersing.”

In their discussion on aerial targeting practices, Schmitt and Merriam discuss Israel’s “knock on the roof” policy. This is the practice of shooting a missile at a home or building in order to warn the civilians of an impending strike. The policy is highly controversial. The relatively small rocket causes damage. A rocket in and of itself, regardless of the size has the impact of causing shock and often paralysis. When used by Israel, the larger rocket usually makes impact 45 seconds to three minutes later not providing adequate time to flee. In some instances, no rocket follows and the small rocket can constitute psychological warfare upon Palestinians. The authors discuss none of these details. In fairness, they describe the technique as “controversial.” They write

The technique involves employing small sub-munitions that impact one corner of the roof and detonates as very small explosions that produce noise and concussion, several minutes ahead of the strike. The civilians are hopefully frightened into dispersing. Once they have cleared the target area, the IDF launches the attack. (17)

The authors go to great lengths to downplay the size and scope of the rocket. They implicitly suggest that the Israeli Army waits for the civilians to leave before launching the second and larger missile, and explicitly say so in their footnote. This has hardly been the case as indicated by the numbers of Palestinians killed in their homes. The most troubling part of this passage, however, is their comment that the “civilians are hopefully frightened into dispersing” indicating an ambivalence about the efficacy of the warning technique while simultaneously acknowledging its psychological impact of creating fear. The authors characterize this practice as legal because it is incidental to a legitimate military objective. In contrast, they concur with Israeli legal advisers that the fear wrought by Palestinian rockets is illegal, even if they do not pose a deathly threat, because they intend to cause fear. (45) Reference to empirical evidence undermines these findings. Based on their investigation, for example, the FIDH concluded that “rather than minimising loss of civilian life, Israel’s warning policy fomented massive forced displacement and spread confusion and fear among the population.” (23) OCHA reported

Throughout the conflict there was a real fear among the population that no person or place was safe, as evidenced by attacks on hospitals, residential buildings and schools designated as shelters. Psychosocial distress levels, already high among the population of Gaza, have worsened significantly as a result of the conflict.

Later Schmitt and Merriam claim that the technique is used exceptionally when other warnings have proven futile- this based solely on what their Israeli interlocutors have told them. They then claim, as a matter-of-fact, that “the technique is only used when the building has been converted into a military objective through use (such as weapons storage)” again based solely on Israeli intelligence. (49) A cursory reading of any of the reports and commentary conducted on Israel’s warning system, or lack thereof, would provide a completely different assessment. (See e.g., United Nations, Amnesty International, B’tselem, Al Mezan, Human Rights Watch, FIDH).

The authors defend the fact that Israel does not always afford adequate time to flee. They explain this situation typically arises

…when the enemy is using the warnings to either know when and where to use human shields or take measures to prevent the civilians there from leaving. Such practices may leave only a narrow window of opportunity to strike before the number of individuals likely to be harmed in the attack rises. Therefore, a strike soon after a warning may in certain circumstances be the best means for minimizing civilian injury even when it does not afford civilians a great deal of time to leave or take shelter. (49)

Schmitt and Merriam are making an absolute proposition: when Israel forces believe necessary to achieve their military objective, they must strike immediately even if civilians do not have time to flee or a place to shelter.  They implicitly suggest that in such a case, Israel is relieved of its duty to assess whether such harm is proportional because it issued a warning, essentially giving its forces free reign to use force. Had the authors considered operational practice it may have included a discussion of the United Nations’ Board of Inquiry findings. That investigation concluded that Israel indeed struck seven UNRWA schools, several providing shelter to civilians, and none were storing weapons or militants. Israel responded that it was investigating these claims. How does this operational practice recalibrate the authors’ analysis? How can we take their findings seriously if they are not even considered?

The paper is rife with similar examples: explanation/apology for Israel’s rules of engagement without examining their application in operational practice. Schmitt and Merriam’s omissions merit much deeper scrutiny and engagement. Just scratching the surface reveals their flawed methodological approach and the inadequate engagement with the implications of their findings. In the best-case scenario, readers will approach their essay like a supplement to Israel’s Army Manual and read it with leisurely interest. In the worst, and more likely scenario, this work will significantly bear upon the production of knowledge regarding national security and humanitarian law and have fatal and devastating consequences. This does not only bear upon Israel’s wars but especially those waged by the United States against both state and non-state actors.  For this reason, we should treat this essay with the alarm it merits.  

 

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