The High Level Military Group (HLMG) is a project of the Friends of Israel Initiative comprising 12 former generals and high-ranking officials from 9 NATO and allied democracies. Formed in early 2015, the HLMG tasked itself with producing an analysis of the war on terror and the challenges faced by nations engaged in asymmetric warfare with terror organisations and hybrid state/non-state actors who do not adhere to the Law of Armed Conflict (LOAC).
The HLMG’s first report, released on 11 December, is a detailed analysis of last year’s 50 day conflict between Hamas and the State of Israel – a case study upon which subsequent reports will build a broader analysis of the strategic and tactical challenges faced by democracies. The report begins by summarising the conflict’s background and the strategic aims of its principle actors. Responsibility for the conflict, the authors conclude, “must be squarely ascribed to Hamas”:
We are under no doubt that Israel did not want this conflict and sought actively to avoid it, pursuing avenues of de-escalation in every phase of the conflict. Israel’s extensive civil defence measures played a significant part in allowing its political and military leaders the strategic space to be deliberate in expanding military operations in each phase only once avenues to avoid escalation were exhausted. Ultimately, Israel had no choice but to defend its citizens from the rocket assault launched by Hamas and other Palestinian terrorist groups and the threat posed by the cross-border assault tunnels.
By 2014, Hamas was suffering from the fallout of the Arab Spring. The ouster of Morsi’s Muslim Brotherhood in Egypt and its replacement by Sisi’s military regime was compounded by the loss of substantial Iranian military and economic support brought about by Hamas’s support for the Sunni rebellion in Syria. Furthermore…
Prior to the 2014 Israel-Gaza Conflict, Hamas and the Palestinian Authority formed a unity government – in part a function of Hamas’s increasing problems. However, President Mahmoud Abbas refused to allow Hamas the ability to participate in the Palestinian decision-making process, and he refused to pay the salaries of tens of thousands of Hamas employees in Gaza, whom he considered a threat to his own Fatah movement. As a result, Hamas’s political isolation continued to be compounded
by a financial squeeze putting in jeopardy its hold over its organisation and territory and posing a serious strategic challenge to the organisation.
Hamas thus sought to escalate hostilities as a way of effecting a permanent change in the status quo which it hoped would extract concessions not just from Israel but from actors not party to the conflict itself such as Egypt and the PA. To wit: the re-opening of the Rafah Crossing on the Egyptian border with Gaza; the reconstruction of an airport and seaport in Gaza, and the lifting of the Egyptian-Israeli blockade of the Strip. Israel, meanwhile, initially sought a return to the status quo ante and the cessation of rocket fire from Hamas militants and other jihadist groups in Gaza. These objectives expanded to include the destruction of the tunnel system on the Israeli border once the scale and threat of the network were uncovered.
The main body of the report is given over to an analysis of the conflict’s three stages:
Stage One (July 7 – 17): Targeted Israeli aerial strikes and indiscriminate Hamas rocket fire.
Stage Two (July 17 – August 5): Israeli ground operations, strictly limited to within 3km of the Israeli border.
Stage Three (August 5 – 26): Further strikes and rocket fire ending in a final ceasefire agreement.
In each of these stages, the authors provide a close analysis of the difficulties a democracy faces when waging war against a hybrid terror group/army which openly flouts International Law and LOAC norms. The State of Israel and the IDF make considerable efforts to abide by the principles of necessity, precaution, humanity, distinction, and proportionality while, as the authors point out, Hamas flagrantly violates all the above.
The principle of proportionality is the most misunderstood of these terms, commonly assumed by commentators (who ought to know better) to rest upon a direct comparison of casualties and damage to infrastructure. In fact, proportionality relates to the amount of harm caused in pursuit of a given military objective. In keeping with this principle, the report details the extensive measures taken by Israel to minimise collateral damage in pursuit of legitimate objectives.
The principle of distinction, meanwhile, relates to conflict actors’ obligation to distinguish between combatants and civilians thereby minimising harm to the latter. For Israel this is complicated considerably by Hamas’s use of protected sites like mosques, schools, and hospitals to house weapons and command centres, and by the terror organisation’s strategy of drawing the IDF into urban warfare where combatants will frequently fight out of uniform and use civilians as human shields to discourage IDF attacks on military targets. While civilians technically lose their protected status under international law if voluntarily shielding military sites, Hamas is well aware that an attack which results in a high level of non-combatant casualties will help to delegitimise Israel’s military operations.
The authors draw attention to the extensive measures taken by the IDF to minimise civilian deaths and collateral damage, including adherence to strict Rules of Engagement and the notification of residents in advance of an attack wherever possible, even though this latter precaution carries the necessary tactical cost of alerting Hamas operatives of forthcoming operations and sometimes places Israeli soldiers at greater risk in the interest of protecting Palestinian civilians. Of Hamas, on the other hand, the authors note that:
Hamas not only indiscriminately targeted Israeli civilians throughout the conflict with extensive rocket fire, but wilfully sought to draw the IDF into a prepared stronghold amid Gaza’s civilian population. It is important to note that Hamas actively sought the death of its own civilians as an advantageous reinforcement of its strategic concept aimed at the erosion of Israel’s legitimacy . . . Hamas additionally broke every single ceasefire during the conflict, whether official or humanitarian, until the final ceasefire agreement that concluded the conflict. It is evident that the factional disputes within Hamas and amid regional power blocs in the Middle East were a contributing factor to the fact that Hamas rejected a ceasefire near the start of the conflict, only to accept virtually the same terms at its end.
The authors are keen to stress that due to the complexities of an evolving battlefield, the difficulties of acquiring conclusive intelligence, and the confusion created by Hamas’s deliberate deceptions at the expense of Gaza’s population, tragic mistakes do inevitably occur. But the State of Israel, unlike her Palestinian counterparts in Hamas and the PA, has a rigorous system of checks and balances, judicial procedures, and civilian oversight designed to investigate and, where necessary, prosecute violations of LOAC and RoE by IDF soldiers.
The final sections of the report look at the humanitarian measures taken by Israel to keep Gaza’s civilian population supplied with food, water, and power in spite of Hamas sabotage, and the misleading casualty figures which result, in no small part, from the credulous reprinting of statistics provided by the Palestinian Ministry of Health in Gaza, a Hamas organisation which deliberately inflates the civilian death toll as part of a campaign of disinformation.
Concluding their analysis, the authors state:
Without seeking to deny the necessity or discourage in any way the practice of appropriate formal and informal checks and balances on warfare in the international system, we further note that in reviewing commentary from the United Nations Human Rights Council, a number of NGOs such as Amnesty International, and sections of the media commentary on the 2014 Gaza Conflict, there are stark, unwarranted condemnations of the IDF’s conduct that do not accord with our own examination. We believe that where ideological motivation can be discounted, the principal reason for this disparity is the absence of the appropriate military and legal expertise and judgement in much of this commentary. Our concern with this matter stems primarily from an appreciation that the misapplication of outcome-based assessments made on the basis of incomplete information and incorrect interpretation of the laws and norms governing warfare pose a concern to all democratic nations.
[…]
Further, it is alarming to see these institutions and organisations in certain instances accord equal weight to the actions and assertions of a terrorist organisation and a democratic state. The cumulative failure of these institutions and organisations to come to a more accurate assessment of events during the 2014 Gaza Conflict, their attempt to impose unwarranted legal norms, and their failure to make important moral distinctions between the adversaries are problems not just for Israel. The normative potential of these institutions and organisations in the international community makes these concerns valid for all democratic nations whose armies are today faced with threats from adversaries with no regard for the Law of Armed Conflict.
The HLMG’s conclusions accord with a 2015 study of Israel’s targeting practices and application of the LOAC conducted by two American military experts, Michael Schmitt & John Merriam. The results of their investigations were published in two essays in April: Israeli Targeting, A Legal Appraisal (published in a military policy journal) and a longer, more detailed analysis, The Tyranny of Context: Israeli Targeting Practices, a Legal Perpective (published in a journal of academic law). A short summary of these two studies (which are both worth reading in full) concluded:
Broadly speaking, we concluded that IDF positions on targeting law largely track those of the United States military. Moreover, even when they differ, the Israeli approach remains within the ambit of generally acceptable State practice. The IDF is served by a corps of highly competent and well-trained legal advisors who operate with a remarkable degree of autonomy, and its operations are subject to extensive judicial monitoring. While there are certainly Israeli legal positions that may be contentious, we found that their approach to targeting is consistent with the law and, in many cases, worthy of emulation.
The HLMG, however, stop short of recommending emulation and instead warn of the following adverse implication of Israeli practices for other democratic nations waging the war on terror:
An assessment of the lawful conduct of an army by necessity must benefit from an understanding of the operational practices, battlefield context and specific actions related to any incident. Following our professional assessment of IDF conduct, several members of the HLMG expressed strong concerns that the actions and practices of the IDF to prevent collateral damage were so extensive, over and above the requirements of the Law of Armed Conflict, that they would curtail the effectiveness of our own militaries, were they to become constraining norms of warfare enacted in customary law.
The HLMG report is at once an important corrective to widely-held misperceptions about Israeli conduct, and also a valuable contribution to the debate about whether current legal guidelines constrain democracies as they attempt to defend their societies and citizens from ruthlessly cynical adversaries with no regard for the norms of international law.
The full report can be downloaded HERE.
HLMG can be followed on twitter HERE and on facebook HERE.
The first sentence of this post has been updated to include HLMG’s link to the Friends of Israel Initiative.
