International Law: LOAC

How (and How Not) to Investigate an Armed Conflict: Reflections on Three Recently Released Gaza Reports

By Yishai Schwartz
Wednesday, May 6, 2015, 2:28 PM

In the last two weeks, three new reports have claimed to offer insight into this past summer’s bloody Gaza conflict. Each has been followed by a stream of articles and commentary as pundits rushed to reinforce their own narratives and preconceptions about how the war in Gaza was fought. The continued interest demonstrates (yet again) the intense global focus on the Israeli-Palestinian conflict. But more importantly, the trio of recent releases offers a case-study in the different ways a military conflict can be retrospectively investigated and analyzed. Each report serves different purposes, relies on different methodologies and offers different levels of credibility. Together they offer an object lesson in what what to do---and what not to do---as we try to increase accountability and humanity in war.

Understanding Israel’s Legal Positions:

The first of the three is “Israeli Targeting: A Legal Appraisal,” a report produced by international law scholars John Merriam and Michael Schmitt and published in the Naval War College Review. (A related law journal article, “The Tyranny of Context: Israeli Targeting Practices in Legal Perspective” is also forthcoming in the University of Pennsylvania Journal of International Law). “Israeli Targeting” offers an unprecedented view into the inner workings of official Israeli targeting policy and procedure. Its authors conducted dozens of interviews with Israeli military commanders and legal advisers, and they were given access to the IDF’s Gaza Division Headquarters, Hamas tunnel infrastructure and combat footage of Israeli strikes on rocket launching sites.

Given the nature of their work, Merriam and Schmitt have little to say about any particular strike or military incident. They cannot say whether any individual incident or field commander obeyed the laws of war---or even the army’s directives. But they can (and do) describe and analyze the legal and procedural architecture that should, in the majority of cases, restrict and define the actions of those individual soldiers and commanders. Understood for what it is then, Merriam’s and Schmitt’s analysis of IDF policy is both insightful and useful. It explains the legal and factual background to some of Israel’s more misunderstood policies (e.g. its “knock-on-roof” warning technique.), and offers key insight into how the IDF calculates proportionality. And perhaps most usefully, the authors identify some of the Israeli military’s most controversial legal positions (e.g. that members of “organized armed groups” are targetable by virtue of their status--even when not engaged in “continuous combat function”), contrast them with the positions of the US and ICRC, and explain the nature of the debate.

Nevertheless, merely understanding the legal arguments and formal positions that control Israeli targeting decisions says little about how well such positions are implemented. Implementation, after all, is key: Abu Ghraib was never countenanced by formal American legal positions, but its existence raised questions--about accountability, command and control, and yes, even the official (and defensible) legal positions staked out by the American government. A similar disconnect between policy and practice is possible in any military, and so we must always ask questions of implementation, including about Israel’s conduct in Gaza. Schmitt and Merriam’s analysis of Israel’s legal and policy positions ought reassure us of the good intentions of the upper echelons of the IDF. But these positions do not exist in factual vacuum, and anyone seeking understanding and accountability in the aftermath of a war, must see how these legal positions are applied.

Gathering the Facts:

Last week, we got a limited---but strikingly good---example of how such an investigation ought to begin. UN Secretary General Ban Ki Moon released a summary of a UN Headquarters Board of Inquiry into ten specific events involving UN schools. Few incidents during the Gaza war raised as much international ire as the violence that surrounded United Nations schools. Human rights groups accused the Israeli military of taking insufficient precautions when firing near school serving as emergency shelters, and Israel lambasted local UN authorities for allowing schools to be used to store and fire weapons. The Secretary General ordered a swift fact-finding inquiry, and although the Board’s detailed 207-page report will remain private (at least for now), he released a lengthy summary with detailed conclusions about each of the ten incidents--and suggestions for UN action.

The report is striking---in that it reflects what appears to be a nuanced and objective investigation. (This is a depressing rarity in the world’s most stridently debated conflict.) The inquiry proceeded with a relatively balanced mandate---its narrow scope had an a priori logic (“incident involving UN schools” is a category that makes intuitive sense) and looked at a set of incidents that included potential violations by both sides. It acknowledged ongoing Israeli investigations, both operational and criminal, into the incidents described. And critically, the inquiry was conducted by a professional staff attuned to the difficulties of war (the Board was led by a Dutch general). This foundational legitimacy led to to Israeli cooperation (something denied to other inquiries that Israel views as overtly hostile) which in turn produced a more informed report--and one that enjoyed wide legitimacy among those naturally suspicious of UN investigations of Israel.

But perhaps most crucially, the report also help restore the critical distinction between statements of facts, and claims of responsibility, guilt, and intent. The distinction may seem simple, but in recent years, we have become increasingly accustomed to reports and statements from prominent NGOs and UN investigative bodies that elide fact-gathering with legal interpretation. For too many of these groups, the number of civilian dead is evidence of disproportionate use of force, residences destroyed become proof of policies of indiscriminate fire. This Inquiry summary, by contrast, limits itself to speaking only about the specific incidents it actually investigated, and offers only those conclusions that reasonably follow from the evidence.

For instance, the report concludes that on July 21st, the Maghazi Preparatory Girls “A/B” School was hit by an IDF tank projectile, causing injuries to a man and child sheltering in the school. However, the report does not claim that the strike was unlawful, nor that the tank commander is guilty of a war crime. Instead, it reports that “none of the witnesses who had testified to UNRWA had been aware” of militant activity near the school, while the IDF reported “significant enemy presence in the area around, and apparently also within, the school.” Similarly, the Board concluded that on August 3rd, an Israeli missile struck the road 6 meters from the Rafah Preparatory Boys “A” School injuring close to 30. But it also noted that Israel had locked the missile on a motorcycle carrying members of Islamic Jihad, and that the IDF claimed that by the time it was clear the motorcycle would be so close to the school at the time of impact, it was too late to divert the missile.

Were these strikes justified? Were they tragic mistakes? Or perhaps the products of a lack of due care and improper procedural safeguards? Such determinations can only follow an understanding of the totality of circumstances. But without knowing what enemies were in the vicinity and what string of events led to the issuance of an order, we simply can’t address issues of moral and legal responsibility. Lacking the tools and ability to decide these questions authoritatively, the Board wisely didn’t pretend to do so. Determining what munitions struck a building is a necessary first step, but it is only a first step, in finding out what went wrong (if anything) and whom to hold accountable. If we are seeking responsibility and reform, we can’t only ask who shot what---but why did he shoot? And under what circumstances did he do so?

Into the Minds of Soldiers:

It is with these questions in mind that I opened “This is How We Fought in Gaza,” a collection of short testimonials from 60 soldiers collected by the Israeli organization “Breaking the Silence” and released just a two days ago. First person accounts, after all, offer a rare opportunity to understand how actions appeared to soldiers themselves and the totality of circumstances with which they dealing when they made life and death decisions. A careful series of probing interviews checked against one another and against the physical evidence would have been extremely useful. Unfortunately,“This is How we Fought” provides little of this. It features leading questions, ambiguous answers, and poorly informed guesses from junior soldiers about general army policy.

The first thing that’s missing from the report is context. The testimonies are anonymous and lack date, location or specific unit information. Worse, most of the testimonies are barely over 400 words, and usually give the reader no sense of what objectives are being pursued and what may have happened, or be happening, elsewhere on the battlefield. (Usually, this is because the soldier himself doesn’t know). The second thing that’s missing is corroboration: did other soldiers hear what this soldier claims to have heard? Does his testimony match the physical and recorded evidence from the field? Are claims even made with confidence and internal coherence? In the absence of any of this---it’s near impossible to assess the accuracy or meaning of any given anecdote. This is particularly important in testimonies where soldiers allege conduct that seems troubling, such as when a soldier claims he was instructed to shell a window after seeing a blind twitch, or when another describes firing on two women whom he sees watching them while speaking on cell-phones. What thinking went into these orders? Did it really happens as described? “This is How We Fought” gives us nothing.

At its best moments, the report provides some insight into the general mindset and common practices of soldiers on the battlefield---for instance, soldiers' descriptions of entering houses by blowing holes in the walls in order to avoid boobytraps, or their profound edginess after discovering an 80-year-old wired with explosives from head to toe. But even then, it is difficult to know how representative any of these feelings actually is. A spokesman for Breaking the Silence insisted that anecdotes were only included when similar stories were repeated by other soldiers and appeared genuinely reflective. Still, the impressions of 60 soldiers who chose to speak to a left-wing NGO known for its vociferous criticism of Israel are hardly representative of the army as a whole.

Reading “This is How we Fought” thus left me asking a question that I didn’t ask when reading either the UN report or Merriam and Schmitt paper. Namely: what is this report for? Certainly it is not trying to provide a representative account of operation Protective Edge, nor attempting an authoritative account of any particular incident. Instead, its mission appears to be primarily political--rather than judicial or factual. By providing a forum for a few dozen soldiers to air some of their most troubling moments, and then by highlighting the most troubling of these (and to be fair, many testimonials are depressing but not really suggestive of malfeasance) in its introduction, the organization aims to add illustrative and emotional weight to its characterization of Israeli policy as “trigger happy.” The goal is thus to increase various sorts of domestic and international (it is not for nothing that resources were spent releasing the report in English)  political pressure on Israel, ideally leading to changes in its diplomatic stance toward the Palestinians and the territories.

No doubt, we will see other organizations follow suit, selecting a handful of the testimonies from “This is How We Fought” in the service of bolstering their pre-existing narratives. But in the absence of any reassurance that its content is representative, accurate or remotely contextualized, a report such as this adds relatively little. And given the value a window into the real-time thinking of combat soldiers might have provided, the lack of such a window is particularly depressing.

This last report’s limitations, however, serve to underscore and explain the successes of the other two. Official policy, such as that studied by Merriam and Schmitt, is made during periods of reflection and codified in formal directives. With the assistance of a military, it is easily identified, and with proper training, it is easily understood. Factual attribution of strikes---such as that conducted by the UN Board of Inquiry---is obviously a much harder task, but when done by professionals, with cooperation from a local military, and in a manageable set of incidents, it offers a powerful first step in providing accountability and possible reforms. Uncovering and evaluating the battlefield judgement of soldiers, however, is a much riskier and more difficult business. For its part, “This is How We Fought” does this poorly--its failures highlighting the importance of context and corroboration. But if done properly, a similar report has the potential to complement the work done by Merriam, Schmitt and the UN Board of Inquiry, together offering a true model for how best to review and evaluate conduct in war, from legal policy to battlefield practice.