In their forthcoming paper, The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, Michael Schmitt and John J. Merriam examine Israel’s targeting practices against the Gaza Strip and Lebanon. Their purpose is to scrutinize the context in which these attacks take place as well as the Israeli Army’s relevant legal standards regulating them. The paper reads like read like an estimable apology on Israel’s behalf. That is because their findings lack the benefit of operational practice that would bear upon their legal conclusions.

Their findings are based on two visits to Israel in December 2014 and February 2015. During those visits, the Israeli Army granted them:

…unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers. (3)

Schmitt and Merriam do not speak to a single person who may be a victim of Israel’s targeting practices. They acknowledge that their approach “might be perceived as leading to a pro-Israeli bias” but insist “the sole purpose of the project was to examine Israeli targeting systems, processes and norms in the abstract.” (3) In essence, they acknowledge that this entire paper examines what IDF lawyers say rather than what IDF operators do. At best – we should read it as a supplementary report to the Israeli Army’s war manual: it is just theoretical. However, they they also claim that their combined experience enables them to assess the “credibility and viability” of Israel’s claims and the outcome is “granular and exceptionally frank.” (4) This is an arguably impossible task if they do not assess Israel’s assertions about their practices in comparisons to actual practice.

As my colleague and legal scholar on laws of war explained to me, he has become accustomed to reading such reports like an anthropologist. Indeed, the value of this paper is its insightful display of the production of knowledge on national security and counter-terrorism from the US and Israeli metropolises. While this may be reason to dismiss the paper all together, it is also precisely why the paper merits response. Schmitt and Merriam are hardly insignificant. Their tremendous body of scholarship and influence means that their interventions will be taken very seriously and will inevitably bear upon the ways we come to understand, justify, and/or reject the development of the laws of armed conflict. This short piece aims to use three select examples to highlight the methodological shortcomings that give rise to insufficiently tested findings that are emblematic of the paper. (I include only one here, for the full article, you can read it here.) For the sake of specificity and fidelity to context, I will focus just on Operation Protective Edge, Israel’s 2014, 51-day attack on the Gaza Strip.

“…[C]asualty-aversion leads Israel to liberally apply force…”

Schmitt and Merriam explain that the Israeli Army is a conscript force. The diffuse and shared nature of military service shapes Israeli values and thus how Israel engages in warfare. In particular, the public’s aversion to soldier casualties “…leads Israel to liberally apply force, particularly airstrikes and counter-battery fire, in order to ‘guarantee force protection.’” (8)

While Schmitt and Merriam do not explicitly say so, the proposition above unduly shifts the risk of warfare from soldiers to enemy civilians; an incredibly controversial position. Proportionality in ongoing hostilities demands that a belligerent’s military advantage outweigh the harm it causes to civilians and civilian infrastructure. While all armed forces consider force protection as part of its military advantage, Israel’s proposal is radical in that it considers its soldiers lives to be more valuable than those of enemy civilians. Therefore, when assessing proportionality, it tolerates greater numbers of civilian deaths and injuries so long as that spares its soldiers from harm. The outcome of this almost ensures devastating results. At the most extreme end of this proposition is that a belligerent force could carpet bomb its adversary for the sake of preserving their soldiers’ lives, thus destroying those gains achieved by anti-colonial struggles and captured in Additional Protocols I and II. Colonized and occupied peoples would thus be subject to nearly unregulated military force. Consider the testimony of sixty Israeli soldiers who fought in the 2014 Gaza Offensive testified to very lenient rules of engagement including directives to “shoot at anything that moves.” These rules of engagement may very well reflect Israel’s radical force protection proposition. Notably, Israeli forces killed approximately 2,100 Palestinians, including 504 children during Operation Protective Edge.

Schmitt and Merriam do not take serious issue with this proposition. They simply note their surprise and then their passive acceptance for the novel approach. (45) Among the examples they provide to demonstrate the application of this approach is Israel’s deadly operation in Rafah where its Army applied the Hannibal Doctrine, where Israel’s rules of engagement “…reportedly resulted in as many as 114 deaths in Rafah.” (46) They say nothing more about the significance of these civilian losses that may put Israel’s proposition into question. For example, they do not share that the Israeli Army admitted to sealing off a 1.5 mile radius so that no one could flee.  Nor did they say that according to an Israeli officer, they released 500 artillery shells onto the area over the next eight hours, nor the fact that they also conducted 100 airstrikes over the course of two days. They do not mention that the commander of the Givati Brigade said to the Associated Press “That’s why we used all this force…Those who kidnap need to know they will pay a price. This was not revenge. They simply messed with the wrong brigade.”

Israel’s proportionality assessment has had horrifying consequences. Schmitt and Merriam discuss nothing of this. One of the authors agrees with the Israeli Army’s approach and the other believes that this is only significant for determining “the military feasibility of precautions in attack…” (46) Neither author critically assesses the unprecedented harm this approach would impose on civilians caught in warfare especially those civilians caught in anti-colonial struggles.