War, Legitimacy, and Context in the Middle East

Gaza. The word immediately evokes images of wartime carnage. For us, however, it represents something else: an example of the danger inherent in wars in which civilian casualties are an enemy’s principal ammunition for winning the strategic information battle; enemies who simply do not anticipate or seek military victory. This was exemplified during our recent participation in a fact-finding visit to Gaza with the Israeli Defense Forces (IDF). The visit enabled us to observe the challenges in the IDFs ongoing campaign against Hamas. That visit convinced us that misunderstanding the operational context of urban warfare yields Hamas a strategic advantage that increases the danger to civilians caught up in the misery of war.

It is unsurprising that war attracts immediate and intense public interest. It is equally unsurprising that reports and images of the carnage created by war, most notably civilian casualties, often generates public outrage. Indeed, civilian casualty estimates seem to have become a touchstone for assessing the legitimacy of military action, even when that action is triggered by the most egregious unlawful aggression. This trend, unfortunately, ignores not only the laws of war developed to balance the necessity of mission accomplishment with the need to mitigate the horrors of war, but also the critical context in which military action occurs, and the reality that there is no such thing as “immaculate war” with no civilian casualties.

Since Israel launched its military campaign against Hamas in the wake of the barbarity of October 7th, this trend has produced truly troubling consequences. Israel continues to be widely vilified for what is broadcast in the media to be a policy of indiscriminate warfare and inhumane treatment of Palestinian civilians. And international legal tribunals have fueled this narrative by entertaining spurious accusations of genocide, war crimes, and crimes against humanity directed by Israeli political and military leaders.

To most military professionals, these allegations ignore the critical significance of context in the assessment of legality and legitimacy of a military campaign. Gaining a better understanding of that context led both of us to join a fact-finding mission to Israel as part of the High Level Military Group. That one week visit in July provided us with important insights into the operational military realities that are widely misunderstood or ignored by those who posit that Israel, and its defense forces are engaged in an illegal campaign. Instead, it confirmed for us (and our entire group) the exact opposite: that the IDF have executed a military campaign defined by tactical excellence and overall commitment to the law of armed conflict – the law that is and must remain the touchstone for assessing legitimacy in war. These conclusions are the foundation for an amicus brief filed by our group challenging the request to the International Criminal Court to secure arrest warrants for the Israeli Prime Minister and Minister of Defense.

But what seems most striking about the external condemnations of the IDF and our own observations (to include observations made by a group of retired U.S. flag officers during a prior fact-finding mission in which Professor Corn participated) is the pervasive failure to consider the operational environment when critiquing the conduct of hostilities. That perspective is essential to comprehend the logic and legality of IDF operations.

Operational Context
U.S., and most allied military commanders, are taught early in their careers the importance of considering mission, enemy, terrain, troops, time, and civilians (METT-T-C) when planning and executing military operations. This is how the military mind incorporates context into mission execution. Our visit enabled us to gain insight into how all these factors impact IDF operations in Gaza, and why they are so important to inform any credible assessment of operational legitimacy. We will address our observations in relation to several of these considerations.

Before doing so, however, a word about strategic context. One of the troubling aspects of our visit was the recognition that while the IDF appears to have clearly defined operational objectives, the strategic end-state for the campaign in Gaza is still not well defined. The long-term status of Gaza and the IDFs role in that status remains uncertain, something candidly acknowledged by the IDF commanders we engaged with. While it is not the role of the military to define the political end-state for such a campaign, it is concerning that 10 months into operations this is still uncertain. Who will control Gaza? Who will establish the type of stability necessary for reconstruction and movement towards normality? Who will bear the brunt of the burden for funding reconstruction? These issues are still ‘to be determined.’ This is truly unfortunate, as this lack of a clearly defined political objective for this campaign risks undermining the IDFs tactical and operational successes – successes that have not come easily.

Mission
Nonetheless, it did seem that everyone we engaged with understood that whatever plan emerges for the future of Gaza, it is imperative that Hamas not be able to reconstitute in a way that enables them to project force against Israel as they have been doing for more than a decade (and have indicated a determination to repeat whenever possible). This aspect of the mission seemed clear: fulfilling Israel’s legitimate right of self-defense necessitated a campaign that disables Hamas’ military capability sufficiently to render them incapable of such force projection. Our conclusion was that this self-defense mission has been effectively translated into military operational objectives: close with and engage Hamas units in Gaza; attack and neutralize Hamas’ command, control, and communications; identify and disable Hamas’ underground logistics and infiltration capabilities; cut off Hamas access to resupply and sanctuary through the use of tunnels into Egypt.

Enemy
Of course, the resources and methods needed to execute this mission are largely dictated by the enemy threat situation. This consideration has been the source of substantial misunderstanding. By characterizing its fight in Gaza as one against “terrorists,” the IDF contributed to a false perception of Hamas’ military capability. In fact, Hamas is a non-state army, fielding at least 24 battalions of fighters organized down to the company and platoon level when they launched their assault on Israel. These forces operate out of improved fighting positions under, on, and above ground. The tunnels may not have been a surprise (although even the IDF did not anticipate how extensive they were). But one unexpected aspect of the enemy situation was the extent to which Hamas had prepared virtually every structure in Gaza as a fighting position, complete with pre-positioned weapons, explosives, and ammunition. These structures were also booby-trapped to inflict maximum casualties on IDF forces tasked with clearing them. Clearing these positions has been a dangerous and tedious aspect of IDF operations, but it has also unquestionably necessitated the highly-destructive combat in the most densely populated parts of Gaza.

Further complicating the mission are the illicit tactics employed by Hamas. To understand the IDF’s actions, one must first understand how Hamas operates. Fundamental to Hamas’ mode of operations is its strategic choice to blend into the civilian population. It does so for three reasons:

• First, to confuse and confound the IDF by deception.
• Second, to increase the probability that Palestinian civilians are killed in error by the IDF by creating confusion between belligerents and noncombatants.
• And third, to use Palestinian civilians as human shields as a means of defense.

The fact is the killing of Palestinian civilians is a cruel and illegal element of Hamas’ strategy. There is no denying that civilians are dying because of unfortunate yet permissible collateral effects of IDF combat action. Yet the pervasive drumbeat of condemnation directed against the IDF for these casualties completely ignores the tactical realities they confront; realities created by Hamas. First, none of these casualties would have been inflicted had Hamas honored the cease-fire that was in effect the morning of October 7th instead of launching their barbaric and illegal attack. Second, their tactics deliberately expose Palestinian civilians to the deadly consequences of combat with the IDF by pervasively embedding fighters among the civilian population. Indeed, in many cases it appears they are not only seeking to shield their assets by hiding behind civilians and highly protected property but seeks to compel the IDF to conduct attacks that kill and injure civilians. Combined, this means Hamas, not the IDF, bears principal responsible for the civilian casualties in this war.

In contrast, our assessment is that the IDF understands and implements its obligation to mitigate civilian risk even when facing such illicit tactics. However, no matter how laudable these efforts may be, it cannot be denied that Hamas’ tactics increase the risk of mistakes by even the most well-trained forces, increasing the risk to civilians. This was the reality the IDF faced and continues to face, a reality that we learned was a major factor in the unfortunate attack on the World Central Kitchen vehicles.

Terrain
Complexity of the war is increased by the urban terrain of Gaza. While we were there, we were able to observe first-hand the density of Rafah. But we also noticed significant areas that were not densely populated. The problem is that Hamas did not operate in those unpopulated areas; it embedded with civilians and where civilian property complicates IDF maneuver, attack decisions, use of airpower, and artillery. This leaves the IDF with little choice other than to operate in those areas to achieve its military objectives.

Civilian Considerations
Contrary to the narrative of excessive civilian casualties, the effectiveness of operations in these areas – to include the effectiveness of civilian risk mitigation efforts – was obvious to us. First, it was clear to us that commanders at every level of operations understood their obligation to do what was tactically and operationally feasible to spare civilian suffering even when engaged in decisive action against Hamas. Second, we saw civilian risk mitigation measures in operation, to include a team operating at the IDF Southern Command whose sole function is to develop and implement civilian risk reduction measures and to provide real-time information to commanders engaged in Gaza. This information enables them to execute operations ways that allow both mission accomplishment and reducing risk to civilians.

Casualty numbers to date reinforce our perception of the IDF’s good-faith commitment to this obligation. While certainly not conclusive on the commitment to, and effectiveness of these efforts to avoid civilian casualties, these numbers are certainly relevant. We recognize the inherent complexity of assessing civilian and enemy casualties in the midst of an ongoing combat campaign. Civilian casualty numbers reported by the Hamas controlled Gaza health ministry are not independently verified, fail to indicate cause of death, and are likely inflated. But even taking these numbers at face value, when considering IDF estimates of enemy casualties (approximately 17,000), the ratio of enemy to civilians killed in Gaza is at worst 1:2.

We understand it may seem indifferent to highlight this ratio. But it is important, because again, it provides important context for the legality and legitimacy assessment. No urban fight in history has resulted in such a low ratio. While this does not lessen the tragedy of civilian deaths, it rebuts the assumption that the IDF is indifferent to civilian casualties and their legal obligation to do all that is tactically feasible to mitigate civilian risk. In fact, our observations indicate that IDF commanders routinely subject their subordinates to substantial risk in their efforts to implement this obligation. For example, the IDF prohibits attacking Hamas operatives when they brazenly interdict and steal humanitarian supplies to avoid risk to humanitarian workers and civilians seeking that aid.

IDF actions with respect to civilians in Gaza also extend well beyond attack risk mitigation efforts. Again, contrary to widespread narratives, we saw nothing to indicate any IDF interference with humanitarian aid entering Gaza. Instead, we learned of – and saw in action – substantial efforts by the IDF to facilitate such aid. This included security operations, establishing multiple points of entry, and building roads dedicated to humanitarian aid for Gaza. IDF commanders were candid that these efforts have not eliminated food insecurity. However, this is not the result of insufficiency of aid entering Gaza; it is the instability within Gaza, to include Hamas interference with and hijacking of humanitarian aid, that has significantly impeded civilian access to these resources.

The IDF was also candid that there have been incidents of mistake attacks on aid resources and personnel. However, the percentage of such incidents in comparison with the total number of aid deliveries into Gaza is statistically minimal. This does not lessen the human tragedy of such incidents, but it does reinforce our perception that the IDF has done an effective job in facilitating humanitarian access in the middle of an active and deadly campaign.

Much of the criticism directed at Israel in relation to humanitarian aid is the result of more restrictive measures implemented early in the war. But again, context matters. During the initial phase of the campaign, the IDF deployed five combat maneuver divisions into Gaza (approximately 100,000 troops) against an enemy estimate to number between 35,000 and 40,000 operatives. Utilizing limited points of access, a maneuver of this scale and intensity would very likely allow extremely limited access to humanitarian aid convoys. Thus, in context, the assertion of intentionally or arbitrarily preventing such access seems dubious. However, whatever measures may have been implemented early on, nothing we observed suggested such policies were put in place or implemented by the IDF. Nor did we observe any indication that the unfortunate use of overbearing rhetoric by some Israeli political leaders suggesting a policy of starving and attacking Gaza belligerents and civilians alike was ever translated into IDF planning or operations.

Conclusion
Our group left with two overriding impressions. First, is that the disconnect between the reality we observed, and the public perception of Israeli military operations is truly unfortunate. Many of these perceptions are based on a combination of disinformation, misunderstanding of military operational realities, and anti-Semitism, and to be fair, unacceptable rhetoric by some Israeli government officials. Ineffective external messaging by Israel has also contributed to this disconnect. Most significantly, however, we think it is primarily the result of fighting an enemy that never sought military victory, but instead sought to use the narrative of civilian casualty excess as its primary ammunition for a strategic information campaign to discredit and isolate Israel. To paraphrase one commander’s response when asked why Hamas fighters continue to resist when the outcome seems already determined, ‘their goal was never to defeat us in battle; it was to inflict pain – on us and on civilians – to pressure us to stop prematurely.’ For the IDF, information is a supporting effort to combat. For Hamas, combat is a supporting effort to information. Hamas has exploited false-assumptions and distorted narratives to great effect in that delegitimization campaign. Countering this is no easy task, but it must begin with more effective explanations of the reality of combat against such a capable and adaptive enemy.

Second, our concern is how this Hamas playbook may be replicated by future enemies of democratic states. Those enemies are learning that the most effective way to turn the public against a righteous war is to create conditions that maximize—not reduce—civilian casualties. Unless people understand that when fighting an enemy who has no regard for its own civilians—who often put civilians in harm’s way—responsibility for those casualties lies at the feet of the illicit enemy, civilians will be in greater risk than ever before. Even worse, the armed forces tasked to achieve specific military effects may find themselves hobbled by those who are incapable of drawing the distinction between the bomb that caused the casualty and the enemy who is truly responsible for that suffering.

Lieutenant Colonel Geoffrey Corn, USA (ret.), is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law. He is also a Distinguished Fellow at the Jewish Institute for National Security of America (JINSA).

Lt Gen David Deptula, USAF (ret.), is former Deputy Chief of Staff for Intelligence, Surveillance, and Reconnaissance, U.S. Air Force Headquarters, and an alumnus of JINSA’s General and Admirals Program.

Originally published in The Cipher Brief.