Refuting Hamas claims of civilian fatalities

Published date20 May 2021
Publication titleIsrael National News (Israel)
No charge resonates more than the charge that Israel's response is disproportional to the provocation which forced Israel to prepare for being accused of committing war crimes, according Marvin Kalb and Carol Saivetz of the Shorenstein Center of Harvard University. [1]

"Proportionality is not… a relationship between the numbers of casualties on either side in a conflict," noted Richard Kemp, the former commander of Britain's military forces in Afghanistan, "but a calculation that considers whether the incidental loss of civilian life, injury to civilians or damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated in an attack. I know that their commanders place great emphasis on adherence to the laws of armed conflict. This includes the principle of proportionality, which is set out in Israel's manual of military law and is recognized by the International Committee of the Red Cross." [2]

There was "no other realistic and effective means of suppressing an aggressor's missile fire than the methods used by the IDF," he said, "namely precision air and artillery strikes against the command and control structures, the fighters and the munitions of Hamas and the other groups in Gaza. Nor have I heard any other military expert from any country propose a viable alternative means of Defence against such aggression." [3]

Though many politicians, U.N. officials, human rights groups and NGOs demanded Israel do more to minimize civilian casualties, not one of them advised how this might be accomplished.

With regard to adhering to the Laws of armed conflict [LOAC] and minimizing civilian causalities in Gaza, he found the IDF took exceptional measures to do so. Though many politicians, U.N. officials, human rights groups and NGOs demanded Israel do more to minimize civilian casualties, not one of them advised how this might be accomplished. Kemp claimed "Israel to be world leaders in actions to minimise civilian casualties; and this is borne out by the efforts made by the US Army, the most sophisticated and powerful in the world, to learn from the IDF on this issue." [4]

Army General Martin Dempsey, the chairman of the Joint Chiefs of Staff, agreed with Kemp. At a meeting of the Carnegie Council for Ethics in International Affairs in New York on November 6, 2014, Dempsey said: "I actually do think that Israel went to extraordinary lengths to limit collateral damage and civilian casualties."

He added, "In this kind of conflict, where you are held to a standard that your enemy is not held to, you're going to be criticized for civilian casualties….The IDF is not interested in creating civilian casualties. They're interested in stopping the shooting of rockets and missiles out of the Gaza Strip and into Israel." [5]

Dempsey revealed that three months earlier, the Pentagon sent a "lessons-learned team" of senior officers and non-commissioned officers to consult with the IDF to determine what could be learned, that would "include the measures they took to prevent civilian casualties and what they did with tunneling." [6]

Other military leaders reached the same conclusion as General Dempsey. From May 18-22, 2015, the High Level International Military Group, composed of 11 former chiefs of staff, generals, senior officers, political leaders and officials from the U.S., Germany, the United Kingdom, Holland, Spain, Italy, Australia and Colombia visited Israel to study the 2014 Gaza conflict. [7]

They were led by General Klaus Naumann, former Chief of Staff of the Bundeswehr and Chairman of the NATO Military Committee, the most senior officer in the Alliance, and Giulio Terzi, former Foreign Minister of Italy. Also accompanying the delegation were Ambassador Pierre-Richard Prosper, formerly U.S. State Department Ambassador at Large for war crimes issues; and Mr. Rafael Bardaji, former National Security Adviser to the Government of Spain. [8]

The delegation included: Giulio Terzi – former Foreign Minister of Italy; General Klaus Naumann – former Chief of Staff of the Bundeswehr and Chairman of the NATO Military Committee; General Vincenzo Camporini – former Chief of the Defence Staff of Italy; Admiral Jose Maria Teran – former Chief of the Joint Staff of Spain; Ambassador Pierre-Richard Prosper – former US State Department Ambassador at Large for war crimes issues; Mr. Rafael Bardaji – former National Security Adviser for the Spanish government; Lieutenant General David A Deptula – former Standing Joint Force Air Component Commander, United States Pacific Command; Major General Jim Molan – former Chief of Operations, Headquarters Multi National Force, Iraq and Commander of the Australian Defence College; Colonel Eduardo Ramirez – Member of Colombian Congress and former Chief of Security, Colombia; Colonel Vincent Alcazar – former senior United States Air Force officer in Iraq and Afghanistan; Colonel Richard Kemp – former Commander of British Forces in Afghanistan.[9]

Their report stated that, "We agree with…General Martin Dempsey, who…went on record… as saying that in the 2014 Gaza conflict, 'Israel went to extraordinary lengths to limit collateral damage and civilian casualties.'"

Furthermore, "Our overall findings are that…in the air, on the ground and at sea, Israel not only met a reasonable international standard of observance of the laws of armed conflict, but in many cases significantly exceeded that standard. We saw clear evidence of this from the upper to the lower levels of command. A measure of the seriousness with which Israel took its moral duties and its responsibilities under the laws of armed conflict is that in some cases Israel's scrupulous adherence to the laws of war cost Israeli soldiers' and civilians' lives." [10]

JINSA Report: An Analysis of Hamas's strategy and Israel's Response

A Task Force of former senior U.S. military leaders included General Charles Wald, USAF (ret.), Former Deputy Commander of United States European Command; Lieutenant General William B. Caldwell IV, USA (ret.), Former Commander, U.S. Army North; Lieutenant General Richard Natonski, USMC (ret.), Former Commander of U.S. Marine Corps Forces Command; Major General Rick Devereaux, USAF (ret.), Former Director of Operational Planning, Policy, and Strategy - Headquarters Air Force; Major General Mike Jones, USA (ret.), Former Chief of Staff, U.S. Central Command) were commissioned by the Jewish Institute for National Security Affairs (JINSA) to evaluate Hamas's strategy and Israel's response. [11]

They found that Hamas "pursued 'unrestricted warfare,' defined as the ability to blend technologies with military actions and political-influence activities, seeking victory not on the battlefield but through pressure on Israeli decision-makers." Hamas used Israel's citizen's "aversion to excessive or unjustified casualties" in an attempt to undermine the war effort by describing the IDF's tactics as "indiscriminate and disproportional."

Furthermore, "Contrary to accusations of widespread unlawful military conduct,' the Task Force "observed that Israel systemically applied established rules of conduct that adhered to or exceeded the Law of Armed Conflict in a virtually unprecedented effort to avoid inflicting civilian casualties, even when doing so would have been lawfully permitted, and to satisfy the concerns of critics. However… Israel's military restraint unintentionally empowered Hamas to distort both the law and facts for their own purposes to the ultimate detriment of civilians' safety, for which Hamas bears sole responsibility." [12]

Israel's Level of Restraint

Significantly, the Task Force opposed this level of Israel's restraint, which they said should not become the standard of U.S. armed forces. "The ever-increasing level of restraint implemented by the IDF reflects the inherent risk in conflating law and policy," they concluded. "Unless there is a clear demarcation between law and policy-based restraints on the use of combat power, raising standards in one instance – even if done as a matter of national policy and not as the result of legal obligation – risks creating a precedent to which military forces will likely be expected to adhere in the future. The result will not only be a greater danger to national security, but also an increased risk to civilians, since unconventional enemies will (like Hamas) deliberately seek to instigate civilian casualties in order to portray them, usually erroneously, as the result of unlawful attacks by their opponents." [13]

Increasingly, the IDF, and especially Dabla, the IDF's international law department in...

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