In some ways, the international debate raging over the legality of this summer’s Gaza war is stale, following a pattern that by now is well-established.
Critics predictably bash the IDF’s conduct during Operation Protective Edge as illegal, constituting war crimes on three global grounds.
They say it was illegal for the IDF to damage, directly or indirectly, thousands of residential homes; that if 2,000 Palestinians were killed, of which around half were civilians – this according to the IDF, with a much higher number put forth by the UN – many or most of the attacks must have been disproportionate; and that much of the IDF’s use of artillery in the close urban setting was illegal.
IDF Military Advocate-General Maj.- Gen. Danny Efroni responded recently, also predictably.
He said that all attacked residences – except in the few cases where he may open criminal investigations – were command centers or contained other military targets. He also noted that the volume of civilian casualties for a full operation (as opposed to looking at each attack on its own) is not a decisive factor as to whether an attack was disproportionate or not (and therefore legal or not), and that artillery is permitted in urban settings.
Efroni has opened 13 criminal investigations and may open a couple dozen more by the time he and the IDF have reviewed all of the 400 war-related complaints.
But as important as the legal debate is, especially with possible war crimes trials before the International Criminal Court on the horizon, the most interesting and productive debate, according to many foreign army officials and lawyers, may be regarding legitimacy.
TAKE FOR example attacks on civilian residences.
The conventional debate poses two choices: the IDF cannot attack because of the danger of civilian casualties, or the IDF can attack using air-to-land missiles and artillery where legally justified by military necessity and proportionality.
It is certainly possible that the IDF may be able to defend each individual attack on the related case-specific context of what military target was present, and how Hamas cannot be allowed to abuse civilian spaces to assault Israelis with impunity.
But some officials and lawyers from foreign armies – who are part of the camp sympathetic to the asymmetric warfare challenges posed by Hamas, in illegally using civilian areas and civilians to try to shield themselves – say there is a third option: The IDF can attack, but use special forces or strafing fire from aircraft instead of missiles and artillery.
They say that in Iraq, Afghanistan and elsewhere, often a decision was made to use one of those options, instead of attacking with the more powerful aerial bombing or artillery option – even though all options would have been legal.
The IDF has provided some analogous examples of video footage where it was aerially tracking a target to strike it using aerial bombardment. The footage appears to indicate the IDF breaking off the attack – despite it being legal – due to legitimacy considerations about the number of expected civilian casualties.
But the IDF has not provided examples where, for legitimacy reasons, it attacked a target with special forces, other infantry or strafing fire, instead of a more powerful aerial or artillery strike.
What’s more, the impression from official and unofficial reports is that in the recent Gaza war, the IDF did very little to expose soldiers to deep and direct contact with Hamas. In other words, it appears the IDF mostly kept soldiers on the periphery of urban areas, leaning on air strikes and artillery to strike deeper areas. (This still does not mean that the IDF has not taken such action.) Also, as pointed out by some experts, the US in the battle for Fallujah, Iraq, fired tens of thousands of artillery and mortar rounds, such that each battle and context must be analyzed on a case-specific basis (and sometimes, artillery is the only viable option).
But just as the IDF released footage of calling off attacks, releasing information about having used alternate, less powerful methods where more potent measures could have been legally justified could enhance the legitimacy of the IDF’s conduct.
Put differently, some experts say the IDF can make for a much better legitimacy debate by sharing a lot more information, even if partial, about attacks and its tactics.
On a side note, as advanced as the IDF is, it may simply not have the same volume of special forces or other capabilities as the US or some Western countries to employ in place of air strikes.
Other experts have pointed out that as much as Iraq and Afghanistan have helped many Western armies understand the IDF’s dilemmas in confronting Hamas’s asymmetric warfare, which abuses the laws of armed conflict, the Gaza context is still unique.
A central point of former US four-star general David Petraeus’s strategy in Iraq and Afghanistan, and doctrine in the updated US Army’s counterinsurgency field manual, was winning hearts and minds. He advocated accomplishing this by being more willing to take on some increased casualties of his own soldiers rather than always protecting his troops by using powerful munitions, which often cause more civilian casualties – even if causing the casualties was legal.
While in the long run many still hope for peace between Israel and the Palestinians, there is no element of winning over the Palestinians in Gaza to appreciate the IDF, as much as there is a desire to force Hamas to end the rocket fire.
This brings us to the next unique point noted by experts.
It is true that the US and other countries were involved, in Afghanistan and Iraq, in a broader strategy to defend their civilian populations from terrorism. But none confronted the real-time dilemma of allowing a rocket launcher to go unattacked, with the result being immediate attacks on their own civilian population, experts say.
This may make the dilemma for IDF commanders deciding to use less certain firepower on a target even more potentially difficult than those faced by Western army officials in Iraq or Afghanistan. Yet if legitimacy issues are already impacting the IDF’s operations, some experts believe the concepts underlying the Petraus doctrine may be worth a closer look, even with Israel’s unique circumstances.
In other words, the IDF might decide to take some measured additional losses in ground forces to reduce dependency on more powerful strike options and civilian casualties.
The goal, though, would not be to win the hearts and minds of Palestinians, but of the fair-minded segments of the international community.
THERE ARE some other serious, in-depth questions to debate that impact legitimacy, which are being ignored in favor of the hotter global accusations and defenses.
One case involving civilian casualties that the IDF recently closed was where it hit a residence because the civilians inside had evacuated, only for the civilians to return to the residence when, according to the IDF, it was too late to stop the attack.
Some had the strong impression that a missile had already been fired when the civilians started to return, whereas critics have argued that the IDF’s warnings about when to evacuate and when to return were unclear, making the attack an illegal war crime.
Some have then asked: Why not move past legal/illegal? Why not focus on whether the IDF’s intelligence about the presence of civilians could be more updated in some attacks? Why not move toward developing some more concrete benchmarks of how updated the intelligence must be (to better avoid hitting targets with civilians returning), some of which could be made public, they suggest.
This might make for a more serious legitimacy debate than the IDF using the legally decisive (but also very subjective) “reasonable” commander test as its defense, without sharing anything about what its intelligence window was. It might also force IDF critics to struggle concretely with the question of whether there really was an alternative option open to the IDF – an issue many critics like to ignore.
There are a plethora of other details about which the IDF could share more information – to spur better legitimacy debates, and to bring critics out of general arguments and into the details of the attacks.
Some experts have discussed a list of factors for what kind of munitions will be used for an attack, including size, mix of available munitions, delivery means, appropriateness of an area for a precision weapon, and range. The IDF, in detailed reports on 2008-2009’s Operation Cast Lead, in a few rare cases released some in-depth information in which it responded to critics by saying that less destructive munitions were not available.
Why not release additional details of this type, for a more robust legitimacy debate? ask some observers.
Another expert talked about civilian risk according to very concrete measurements – high (civilians within 25 meters), medium (within 250-500 meters) and low (no civilians within 500 meters.) Again, the 2008-2009 reports in rare cases shared some details about distances, but some would say: Why not share more? Another expert said, however, these categories and some of the above-mentioned concrete ideas are overly constraining, and go way too far in interfering with the principled flexibility built into the law of armed conflict to be able to respond to specific unique cases. There is also the obvious paramount constraint of preserving operational and tactical secrecy.
But the IDF has already made conceptual jumps beyond secrecy in sharing significant operational details of some attacks, and frequently warns its adversaries to leave an area before it attacks (compromising operational surprise).
Perhaps getting a bit more concrete about some of the details could help hone the legitimacy debate to a new level? It is unlikely, however, that the IDF will lift the veil on many more details anytime soon.