When the Laws of War Kill

Terrorist groups like Hamas know exactly how to manipulate international law to their advantage.

The laws of war are intended to limit conflict and minimize casualties. But what happens when terrorists use these same laws to expand conflict and kill more people?

This paradox is at the center of a new report, “2014 Gaza War Assessment: The New Face of Conflict,” commissioned by the Jewish Institute for National Security Affairs. It is the product of a study by senior retired U.S. military officers and academics, using primary source documents and interviews with senior Israeli, Palestinian and United Nations officials.

At an event last week for the report’s release, Eliot Cohen, a professor at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, highlighted the challenges of fighting an unconventional enemy that uses a state’s compliance to the law as a tactical and strategic enabler. In unconventional or hybrid warfare, international law harms civilians because those who don’t observe it use it as a weapon against those who do, with the innocent as their tools.

During last year’s six-week Gaza war – also known as Operation Protective Edge – the Israelis made significant efforts to comply with the strictures of the law of international armed conflict. Hamas did the opposite, deliberately increasing the risk to noncombatants and increasing civilian casualties. However due to uncritical press coverage that highlighted the fact of civilian deaths rather than how they came about, Hamas was able to seize control of the narrative in the media. As a result, according to task force chair, retired Air Force Gen. Charles Wald, “Hamas thinks they won this thing” even though they were decisively defeated on the ground.

Hamas knew that press reports would only look at the effects of combat, not the immediate circumstances of a firefight or the deliberation and decision-making that preceded it. They illegally used mosques, schools and hospitals – and the noncombatants inside them – as fighting positions, supply dumps and headquarters. When these areas took Israeli counter-fire – which is permitted under the laws of armed conflict – Hamas would go to work publicizing the damage as an alleged war crime.

The Israelis were painfully aware of this, and went to extraordinary lengths to try to minimize the impact of war on civilian populations. For example, when Hamas placed command posts and fighting positions in residential buildings, Israeli forces would warn the people inside of an impending airstrike by “roof knocking,” dropping non-explosive devices on the roofs of buildings to get people to leave. This also gave the enemy a chance to escape, but it illustrates the lengths Israel would go to in order to comply with the law, even to its tactical disadvantage. In other cases, Hamas gunmen would not allow residents to flee. This sometimes resulted in an Israeli mission being scrubbed; other times it led to unnecessary civilian casualties for which Israel was blamed.

It is a familiar story to Americans. From the 1968 Tet Offensive in Vietnam to contemporary counterinsurgencies, U.S. warfighters have discovered that they can win exemplary victories on the battlefield, only to read later in newspapers how they had “actually” lost.

Retired Army Maj. Gen. Mike Jones detailed the reasons why Israel could win on the battlefield but lose in the global information domain. The Israel Defense Forces had robust information operations, but were focused on the domestic audience in Israel. The Ministry of Foreign Affairs, in charge of helping shape international opinion, lacked the resources to overcome the Hamas effort. Hamas had a very sophisticated approach to traditional press and social media. Jones noted that rather than fighting a war and trying to shape press coverage, Hamas was “fighting an information campaign that was enabled by military operations.”

There was also a strategic mismatch in dealing with reporters. Members of the press covering the war from the Israeli side had broad access and could shape coverage as they saw fit, hyping occasional battlefield mistakes, examples of discontent in military ranks or protests. Coverage of the other side of the war was much different. Hamas has no concept of freedom of the press or the rights of journalists. Reporters were only allowed to report stories that supported the Hamas narrative. For example, the press was given ample access to Gaza’s Shifa hospital, where they were allowed to show images of casualties and grieving relatives, but were barred from showing the illegal Hamas senior command post that filled the hospital basement. Those who tried to report on persistent Hamas war crimes, such as using human shields, were bullied, threatened and had their equipment confiscated.

The most important lesson for the United States facing similar conflicts is to spend as much time and energy as the adversary in shaping the images and messages flowing from the battlefield, both in traditional and social media. Also, it is important for reporters to understand the true limitations and implications of international law, even before they arrive in the theater of war.Unconventional foes focus on the information fight because it is the only one they can win. It will take careful planning and foresight to make sure that they don’t.

James S. Robbins is senior fellow in national security affairs at the American Foreign Policy Council, and author of “This Time We Win: Revisiting the Tet Offensive.”

Originally appeared in U.S. News on March 17, 2015.