Which side of the latest debate between US-Israeli law of armed conflict experts will the International Criminal Court fall out on when it looks at war crimes allegations against the IDF? (It should be clear that none of the debaters have accused the IDF of war crimes, but their differing positions could highly impact an ICC analysis of the legality of the IDF’s targeting methodology. In contrast, there are many human rights groups who disagree with IDF tactics far more and are more clearly pushing for ICC intervention.)
At the end of April, top US law of armed conflict experts Michael Schmitt (former US Air Force lawyer and current professor at the Naval War College) and army lawyer and an instructor at the Naval War College Maj. John Merriam put out two major reports on IDF targeting methodology after the IDF gave them special insider access.
From their joint work, they concluded that the IDF had at least two very special contextual elements to compete with when fighting Hamas and Hezbollah which were even more challenging than those which Western armies confronted in Iraq and Afghanistan.
One was that when the IDF was deciding whether to target Hamas forces or rockets, that a choice not to attack could mean an immediate Hamas strike on the Israeli civilian population.
A second was that the IDF is extra sensitive to its soldiers being kidnapped because Hamas is extra committed to kidnapping IDF soldiers as a strategic goal in order to obtain prisoner exchange deals in which it hopes to receive hundreds or thousands of Palestinian prisoners in exchange for one Israeli soldier.
The reports argued that the IDF’s targeting decisions should be judged and understood in these unique contexts.
While explicitly denying any specific judgments on war crimes allegations against the IDF during the summer Gaza War, the clear implication was that critics should be more understanding of unique challenges confronted by the IDF.
It was not long before, on the blog Just Security, some of Israel’s brightest contradicted the American experts’ effort to get the world, and in the not so distant background, the ICC (which is already in a preliminary examination of IDF war crimes allegations) to better empathize with the IDF’s unique challenges.
On May 7, Hebrew University Law School Dean Yuval Shany and Dean of the Ono Law School Amichai Cohen said that the report had gone too far and was opening up a pandora’s box in which any country could claim special contextual factors should let it hit its adversaries harder.
In fairness to Shany and Cohen, they would likely argue that their efforts are targeted at getting the IDF to stick to high standards which they believe it often reaches, and which compromising on could endanger its’ credibility with the ICC and others.
They wrote that IDF critics could just as easily claim that the IDF’s close to 100% success in using iron dome to protect its citizens from Hamas’ rockets should force the IDF to exercise extra restraint in fighting Hamas since its rockets are not a high statistical threat.
They also criticized the report as potentially justifying unleashing firepower which would normally be viewed as excessive to retrieve a kidnapped soldier (with a not so veiled nod to the August 1 kidnapping-murder of IDF soldier Hadar Goldin in which the IDF response killed between 40-150 civilians.)
Schmitt responded on Tuesday that he had been mischaracterized.
He said that Shany and Cohen had conflated his comments regarding rocket attacks and about defining what was a “military advantage” with what was a “proportional” attack.
Focusing on the kidnapping issue, Schmitt explained that he was not saying that Israelis fear of kidnappings was part of the definition of “military advantage.”
Rather, he was contending that since Hamas made kidnapping an Israeli a major strategic goal and that accomplishing such a goal could substantially alter IDF tactics, thwarting Hamas from achieving that goal also presented a major “military advantage.”
Shany told the Jerusalem Post that Schmitt’s clarification on rocket attacks put them essentially in agreement, but that he still disagreed with Schmitt on how harshly the IDF could respond to a kidnapping of an IDF soldier.
He said he still saw Schmitt’s analysis, whether phrased from the Israeli or Hamas perspective as a “slippery slope” with a viewpoint that was too subjective and which could lead to unnecessary civilian deaths on the Palestinian side.
Schmitt told the Post that he was “struggling to understand how I could walk into a command post and tell a commander” who had faced kidnappings that he could not change his operational posture and still had to treat the kidnapping threat as a mere threat to a single soldier.
He added that US and other Western forces in such circumstances had or likely would “divert drones flights and set up special ambushes to look for the solider” and that all of this amounted to the kidnapper controlling the battlefield.
On a related point, Shany and Cohen did not directly critique Schmitt on a discussion he had about the IDF being able to “relax” its rules of engagement in certain scenarios of trying to retrieve a kidnapped soldier, but others might.
Schmitt responded that such critics, likely without a military background, do not understand the ROEs are usually stricter than the law and that relaxing them does not in any way mean endorsing violating the law.
Both Shany and Schmitt agreed that some of their differences, with both expressing tremendous respect for the other, could be traced to their different backgrounds.
Shany knows a significant amount about warfare, but comes from an academic background, and Schmitt has been in academia for an extended period, but comes from a military background.
This is an oversimplification as both sides also encourage dialogue between military and academic law of armed conflict experts.
Will the ICC give the IDF more leeway in Palestinian civilian casualties stemming from IDF attacks on Hamas rockets targeted at Israeli civilians or efforts to retrieve a kidnapped IDF soldier.
Some have said that the recent UN Secretary General’s report was more understanding of IDF actions during the 2014 Gaza War than a parallel report on the 2009 Gaza War because a military commander led the recent investigation and a non-military expert led the 2009 investigation.
Much of the answer to questions about the ICC may also turn on whether it views the IDF’s battlefield decisions more from a military or academic point of view.