Defending the Fence: Legal and Operational Challenges in Hamas-Israel Clashes, 2018-19

On March 18, the U.N. Human Rights Council (UNHRC) will hold a hearing and issue a report likely accusing Israel of violating international law through its use of force in response to the March of Return demonstrations on the Gaza border last year. An advance report by a special U.N. Commission of Inquiry (COI) claims these events have been “civilian in nature” and that Israel intentionally shot unarmed civilians, “despite seeing that they were clearly marked as such.” Its criticisms of Hamas’ actions are conspicuously far less prominent.

As retired U.S. generals and admirals and military legal experts with decades of service in Iraq, Afghanistan and Asia as well as intimate knowledge of international law, our own operational and legal review of recent regional conflicts, including the March of Return, leads us to very different conclusions than the UNHRC. Specifically, we assess:

• Hamas systematically violates international law by purposely using Gazan Palestinian civilians as human shields for attacking Israel, provoking Israeli actions that would lead to civilian casualties, and attacking Israeli civilians indiscriminately;
• Israel’s rules of engagement in addressing the March of Return are consistent with international law and operational practice;
• Despite this, Hamas exploits Gazan civilian casualties to propagate a false narrative of illegal Israeli use of force to delegitimize and pressure Israel; and
• The COI’s findings reflect the success of Hamas’ tactics, and they encourage Hamas and other militant and terrorist groups to continue such illegal tactics against not only Israel but also the United States – at the direct expense of civilians that will be injured and killed by these actions.

Rather than attempt an exhaustive account of these events, we are issuing this brief report as an update and addendum to a JINSA-commissioned assessment of Israel’s 2014 Operation Protective Edge against Hamas, and to provide useful context and inform opinion in response to the COI report and UNHRC hearing. We are drawing on our U.S. military backgrounds and our perspectives from recent fact-finding missions to the region, during which we visited the Gaza border and met with Israel Defense Forces (IDF) soldiers and commanders, high-ranking Israeli defense officials, U.N. officials, independent media and others.

Click here to read the report.

Hybrid Warfare Task Force Members

General Gilmary M. Hostage, USAF (ret.)
Former Commander, Air Combat Command

Vice Admiral John M. Bird, USN (ret.)
Former Commander, U.S. Seventh Fleet

Lieutenant General Kenneth J. Glueck, USMC (ret.)
Former Commander, U.S. Marine Corps Combat Development Command

Lieutenant General Richard Natonski, USMC (ret.)
Former Commander, U.S. Marine Corps Forces Command

Lieutenant General Thomas W. Spoehr, USA (ret.)
Former Deputy Commanding General, U.S. Forces – Iraq

Lieutenant General John Toolan, USMC (ret.)
Former Commander, U.S. Marine Corps Forces Pacific

Lieutenant General Michael S. Tucker, USA (ret.)
Former Commanding General, First United States Army

Colonel Ian G. Corey, USA (ret.)
Former General Counsel, U.S. Army Cyber Command

Colonel Marc Warren, USA (ret.)
Former Senior Staff Judge Advocate, Coalition Forces in Iraq

Lieutenant Colonel Geoffrey S. Corn, USA (ret.)
Vinson & Elkins Professor of Law, South Texas College of Law, Houston