Major US military law experts: IDF ‘contentious’ targeting complies with international law

US report, with lawyers given inside access to IDF operations, could impact International Criminal Court report on Gaza War.

By YONAH JEREMY BOB
An explosion and smoke are seen after Israeli strikes in Gaza City (photo credit: REUTERS)
An explosion and smoke are seen after Israeli strikes in Gaza City
(photo credit: REUTERS)
Two leading US experts on the law of armed conflict have concluded that IDF targeting complies with international law even where it was “contentious,” and that IDF positions “on targeting largely track those of the US military.”
Although formally their report says it is not judging specific instances from the summer Gaza War, the unmistakable conclusion of the report is to support the IDF’s approach almost across the board in the principles it brought to targeting during the war – principles at the core of the public debate over alleged war crimes.
Because of the authors’ prominence and the unprecedented inside access they were given to IDF operations, the impact of the report could be wide-ranging and even influence decisions by the International Criminal Court on the issues.
The two authors of the 52-page report – a summary of which was posted on the academic legal blog Just Security on Friday, but is being reported in the mainstream media for the first time here, in The Jerusalem Post – are Michael Schmitt and John Merriam.
In the academic debate over how aggressively Western militaries can fight against adversaries such as Hamas or al-Qaida, which purposely endanger civilians in war, Schmitt is one of the leading voices in the US and globally for a more aggressive posture.
Schmitt is the top expert on the law of armed conflict at the US Naval War College and also holds posts at NATO, Harvard and Exeter in England. Previously, he was a US Air Force lawyer and is widely influential on militaries’ practices even beyond the US.
Merriam also holds a post on the law of armed conflict at the Naval War College and continues to serve as a major and a lawyer in the US Army.
The summary says that “Israel has long resisted publicly revealing its targeting methods and even some of its specific positions on the law of armed conflict, fearing that doing so” would help “its adversaries” and “be exploited” by its international critics.
It continues, “This may be changing….The IDF invited us to Israel to examine its targeting practices…. We visited an operational IDF headquarters (the Gaza Division) and observed its targeting cells; reviewed the targeting procedures of both ground and air forces … visited a Hamas attack tunnel; examined combat footage… and interviewed IDF officers – both legal advisers and operators.”
Schmitt writes that the IDF’s targeting practices are “broadly within the mainstream of contemporary state practice, but the nuances… can only be understood” in Israel’s specific context.
He notes that the “Israeli population views itself as ‘under siege’ – Israel is surrounded by foes” who regularly launch rockets at Israeli populations centers.
“These rockets are capable of ranging virtually the entire country,” states Schmitt.
He adds, “Put in terms of the law of armed conflict, the destruction of rockets and rocket-launching infrastructure (often in the form of civilian houses converted to military use in order to deter Israeli attack) has a high degree of ‘anticipated military advantage,’ such that it may justify (from the IDF’s standpoint) levels of collateral damage that may strike outside observers as potentially excessive.”
Next, the report focuses on “the acute casualty aversion in Israeli society writ large, coupled with a pervasive fear of IDF soldiers being taken prisoner and used to exert strategic leverage over Israel.”
Schmitt says the US’s highly criticized decision to trade five Taliban fighters for the release of US Sgt.
Bowe Bergdahl as compared to Israel routinely releasing hundreds or even thousands of captured fighters for the return of IDF soldiers or their remains illustrates the unique Israeli mentality on the issue.
He points out that whereas the US is a volunteer force, the IDF is a conscript force and that “nearly every Israeli family has loved ones who have confronted, are confronting, or will confront the risk of capture or death in combat.”
Schmitt discusses how the IDF’s approach and strikes on Hamas’s tunnels, cement plants and its soldiers concentrated in civilian settings sometimes lead outside observers to question Israel’s commitment to basic principles such as distinction, proportionality and minimizing civilian casualties.
In contrast, he repeatedly equates IDF practice with US military practice and concludes that even where the IDF differs from the US, “the Israeli approach remains within the ambit of generally accepted state practice” and “in many cases, worthy of emulation.”
He adds that the IDF legal advisers are “highly competent,” “well-trained” and have a “remarkable degree of autonomy.”
At its core, Schmitt’s report explains the basis for unique and aggressive Israeli interpretations of what is a military objective; when civilians cross over and become “direct participants” in hostilities; “voluntary human shields”; open-ended targeting of “organized armed groups”; how much weight is given to uncertainty and doubt in targeting; and Israel’s controversial “roof-knocking” warning policy.
Schmitt’s conclusions will be viewed as controversial in opposing academic circles and within much of the human rights community, but he is taken seriously by most parties.
Neither the IDF, nor the Justice Ministry nor the Foreign Ministry wished to comment on the report – likely because the report’s positive analysis speaks for itself.