By Geoffrey Corn
PROFESSOR OF LAW, SOUTH TEXAS COLLEGE OF LAW. US ARMY (RET.)
As the saying goes, “no good deed goes unpunished.” When considering media coverage of the conduct of hostilities during an armed conflict, it may be hard to imagine the relevance of this saying, but . . . The media narratives arising out of the recent bout of hostilities between Israel and Hamas illustrate the applicability of this saying to such a context.
Let’s start with stating the obvious: war is awful. The loss of life, physical and psychological injuries, and destruction of property resulting from states or non-state armed groups resorting to the force of arms is something we should all lament. This is especially true when the victims of wartime violence are not participants in hostilities. Yes, it is unfortunate when the fighting members of opposing groups are killed or wounded; no one should celebrate such human loss. But participating in hostilities carries with it the risk, if not expectation that such may be the result of conflict. For civilians and others who don’t fall into this category – to include wounded, sick, and captured members of opposing armed groups – such suffering is as tragic as it seems inevitable.
It is for this reason international law, and more specifically the law of armed conflict (also known as international humanitarian law), imposes obligations on the groups engaged in armed conflict. This law is truly as old as organized warfare itself, although obviously it has evolved substantially throughout history. At the core of the law are obligations established to mitigate the risk to civilians, other individuals not actively engaged in the conflict, and civilian property. This ‘package’ of obligations is often characterized as ‘targeting’ law, because it imposes legally binding regulation on the process of deciding who, when, where, and with what to attack an enemy.
Pursuant to this law, it is always unlawful to deliberately attack civilians or civilian property. As a result, any person employing force must constantly distinguish between enemy personnel and objectives and all other persons, places, and things. Importantly, the law does not prohibit the result of inflicting such casualties; if they are an incidental consequence of an attack on a lawful target and were not assessed as excessive in relation to the concrete and direct military advantage anticipated by the attack, they qualify as lawful consequences.
The law also imposes an obligation on both sides of the fight to take constant care to mitigate the risk to civilians and to implement all feasible precautionary measures to mitigate civilian risk arising in the conduct of hostilities. For the attacking force, this means considering a wide range of risk mitigation measures. These range from efforts to verify the true nature of a proposed target and to assess the risk to civilians and civilian property, to adjusting the timing and tactics of an attack to mitigate risk, to issuing pre-attack warnings and encouraging civilian evacuations. And this is not an exhaustive list; commanders are expected to constantly explore measures that will mitigate civilian risk without significantly compromising their military advantage.
But this obligation is not unitary; it also extends to a force that anticipates it will be attacked. To that end, the law imposes an obligation to endeavor to avoid locating military assets amongst the civilian population. Even more importantly, the law categorically prohibits using individual civilians or the presence of a civilian population in an effort to shield military objectives from enemy attack. Known as human shielding, this pernicious practice is all too common in contemporary conflict where a tactically inferior force seeks to level the equation by deliberately comingling its vital personnel and assets amongst civilians and civilian property.
Sadly, it is equally common that attacking forces encounter an enemy that ignores these obligations – that embeds military assets amongst the civilian population, uses civilian structures to house military assets, or uses civilians as human shields. In such situations the enemy violation does not release the attacking force from its obligations to mitigate civilian risk. But the effort to exploit the civilian population to gain some shielding advantage does not immunize the enemy from attack. When civilian property – such as an apartment building, or a school, or a bus or car – is used by the enemy as a military asset, the law provides a test for when that use essentially transforms the place or thing into a military objective within the scope of permissible attack authority. And when such an attack will result in incidental injury to civilians or destruction of civilian property, the law permits such attack so long as the attacking commander’s assessment is that the civilian harm will not be excessive in relation to the anticipated concrete and direct military advantage, the so-called proportionality rule.
Unfortunately, there seems to be little interest in the true nature of this targeting legality equation when reporting on contemporary conflict that results in the almost inevitable tragedy of civilian suffering. To be fair, it is to a certain extent understandable why the media and the public gravitate instinctively towards the images of destruction and suffering; as noted above we should all be saddened and bothered by this. But the flaw in the common narrative is to instinctively conflate the results of combat action with legal responsibility for this suffering. It is, of course, easy to identify the direct cause of death, injury, and destruction in war: the party that drops the bomb or launches the attack. But assessing legal responsibility for that destruction – especially when it adversely impacts the civilian population – is more complex.
And here is the true irony reflected in the latest conflict in Gaza: the party to the conflict that appears to have endeavored in good faith to comply with the law of targeting and its civilian risk mitigation imperative is consistently condemned, while the party that consistently and blatantly violated this law is treated as the victim of illegality. Two iconic examples stand out that illustrate this distortion.
First, The New York Times cover page showing photos of children killed in Gaza during hostilities. The tragedy of this loss is undeniable, but so is the invalidity of the suggestion that the Israeli Defense Force bears responsibility for this tragedy. Instead, that responsibility almost certainly falls at the feet of Hamas because of its deliberate effort to use the presence of civilians as human shields. And even that is being forgiving, for there is good reason to believe that shielding its targets from attack is not the ultimate objective when Hamas exploits its own civilians to get between its assets and IDF attacks; that what Hamas really wants is to force the IDF into inflicting those casualties so that they may be leveraged in the international information space to delegitimize Israel. The New York Times front page is all the evidence needed to understand why Hamas would engage in such tactics.
The second is a New York Times report of its investigation into the destruction of two apartment buildings in Gaza. A video goes to great lengths to establish that it was IDF precision-guided 2,000-pound bombs that destroyed these buildings. But the video also acknowledges that the targets of those attacks may have been the underground tunnel network running beneath the street in front of these buildings. But what about the law? First, the report erroneously states that the IDF was “obligated” to issue a pre-attack warning to the civilians placed at risk. This is a clearly erroneous statement of the warning obligation, which is not required when the operational circumstances indicate it will compromise the effect of the attack. Second, the report condemns the use of the munition based on a statement by the International Committee of the Red Cross that such ‘wide area effect’ weapons should not be used in urban areas. Setting aside the invalid suggestion that the ICRC is somehow the final say on what is or is not legal in conflict (it plays an important and influential role but is not the final say), the report’s failure to consider the ‘legality impact’ of the fact that the munitions were precision guided; and the fact that the use of these munitions may have been calculated to avoid the need to conduct a 2014-type large scale ground incursion into Gaza to destroy tunnels reveals how deeply misleading the inference of illegality is.
And then there is the ultimate manifestation of distortion: at one point in the report, the narrator notes that Hamas tunnels did in fact run under the street in front of both of these buildings and that large subterranean explosions may have been the cause of the collapse. Unfortunately, the report offers no discussion of why those tunnels would have been assessed as vital military objectives; of why aerial attack to destroy them would have been assessed as a tactic creating a substantial reduction in danger to civilians than the alternative of a ground incursion; of the IDFs process of collateral damage estimation, and how that process would have informed the commander as he made the difficult assessment of proportionality; or of the dilemma the tactic of running tunnels under densely populated civilian areas creates for the attacking commander. Instead, all the report acknowledged was that, “Doing this under a civilian neighborhood likely breaches international law.”
There are countless other examples that illustrate the distorting effect of this type of ‘effects-based condemnation.’ Yes, it is true that Israeli attacks resulted in loss of civilian life and destruction of property. But why were those lives exposed to the consequences of attacks? And why is that more pernicious than the efforts of Hamas to deliberately attack Israeli civilians using inherently indiscriminate weapons, not to mention the willingness of Hamas to deliberately expose its own civilians to this tragic suffering.
The media has to do better. It may be the case that aspects of the IDF operation crossed the line of legality, but the suggestion that the IDF is the pervasive law-breaker and Hamas is somehow understandably incapable of complying with the law is corrosive. The mere fact that the IDF was able to achieve its military objectives without resorting to a full-scale ground operation – with the ultimate result of a 10-fold reduction in casualties in Gaza compared to the 2014 operation – reflect a nation and a military committed to the imperative of balancing military necessity with civilian risk mitigation. But if all that the media gravitates toward is effects, illicit groups like Hamas will have all the more incentive to violate this law and to create situations that will inevitably exacerbate instead of mitigate the risk to their own civilians. And when those casualties and that destruction are reported in the future, it will be the media itself that shares responsibility for that tragedy.
