Hamas, ISIS and the Law of Armed Conflict
In an era of drones and precision munitions, our understanding of modern warfare is increasingly divorced from the reality of those waging it. War is still a brutal endeavor, requiring that our military remains true to our values, even in combat against adversaries shrewdly exploiting those same values to undermine our efforts. It is therefore essential that the public recognizes this phenomenon and how it depends on widespread misperceptions about what the law actually prohibits, and allows, in war.
Today’s conflicts necessitate action in locations crowded with civilians our illicit enemies like ISIS, Hamas, and others deliberately exposed to the mortal dangers of combat. Despite our best efforts to employ force discriminately and proportionally, this means civilians will suffer. But the enemy relies on illicit tactics to play upon misunderstandings of when attacks that place civilians at risk are lawful. This, in turn, allows our adversaries to discredit and potentially disrupt lawful military operations.
Criticism of the IDF’s Gaza campaign exemplified this phenomenon. Our 2014 assessment of that conflict, commissioned by the Jewish Institute for National Security of America, highlighted the ironic disparity between the IDF’s commitment to comply with the law of armed conflict (LOAC), and Hamas’ intentional disregard of those obligations to delegitimize the IDF. Ultimately, this helped Hamas advance a broader information campaign by portraying IDF soldiers as callously and illegitimately causing civilian suffering. Today, ISIS is using the same playbook against U.S. and Coalition efforts.
The challenge for the U.S. or Israel to align perception with reality in these conflicts will not abate any time soon. This is underscored by the threat of renewed conflict between Israel and Hezbollah. Although a much more capable opponent than Hamas, the IDF is more than ready to achieve its military goals if and when necessary. The true challenge, however, will be doing so while mitigating, to the maximum extent feasible, harm to civilians Hezbollah blatantly endangers – the same challenge our forces confront in Syria.
Our military, like the IDF and other professional militaries, clearly embraces civilian protections enshrined in the international law of armed conflict. But they also understand the difficult reality that even our best efforts cannot result in “zero casualty” warfare, and that the true measure of legitimacy is knowing we did all that was feasible to mitigate harm to civilians. Unfortunately, it is the effects of combat and not the actions that lead to those effects, that the public focuses on to judge legitimacy.
Protecting civilians in war demands constant commitment to compliance with the law by our forces, and like the IDF, we can be justifiably proud of such commitment. Even when the enemy violates the law, and even when this complicates achieving military objectives, our commitment remains constant. But protecting civilians in war also requires aggressive condemnation of the unlawful use of civilians and civilian property to shield vital military assets. Unfortunately, such condemnation is rare. This leads to unrealistic expectations on our forces and encourages determined and capable enemies like ISIS, Hamas, and Hezbollah to draw our forces into close combat in the challenging and dangerous urban tactical environment.
We have yet to effectively make the case how exploitation of the law is central to our enemies’ strategies. This will be difficult, as it is a natural reaction to assign strict liability for civilian harm to the side conducting the attack. Against this type of enemy, a greater appreciation of what the law permits in war is a vital aspect of strategic success.
More must, therefore, be done to convey this complexity to the watching world. While there will always be exceptions, the vast majority of soldiers serving democratic nations demonstrate a remarkable commitment to lawful and moral wartime conduct. However, until the United States, Israel and other allies clearly articulate just how these conflicts are waged – and the challenges it places on these soldiers – our illicit adversaries will continue to expose civilians to tremendous risk in hopes of winning in the court of public opinion, knowing full well they cannot win on the battlefield.
Despite advances in war-related technologies, those who fight are – simply – people, trying to achieve their mission. But they also understand that they must embrace the values of the democratic societies in whose name they fight. The public should have no doubt that our military, and others confronting analogous challenges, will be as unrelenting in their efforts to implement their legal obligations as their enemies are to avoid them. Until the public understands the reality of the conflicts we and our allies currently fight, misperception will continue to undermine strategic success.
LtGen (Ret.) Richard Natonski is former Commander of U.S. Marine Corps Forces Command. LtCol (Ret.) Geoffrey Corn is Professor of Law at South Texas College of Law Houston, and Senior Advisor to JINSA's Gemunder Center for Defense and Strategy. Both worked on JINSA's 2014 Gaza War Assessment Task Force.