Jun. 26, 2015
The UN Report on the 2014 Gaza Conflict: The Distorting Effect of Flawed Foundations – Geoffrey Corn (JINSA)
Analysis of the UN Human Rights Commission Report on the 2014 Gaza Conflict indicates the findings related to Hamas violations of the law of armed conflict (LOAC) are unjustifiably qualified, while the findings of IDF violations are not sufficiently supported by facts, expertise, or law. The report includes a disproportionate focus on alleged IDF violations in comparison to Hamas violations and fails to consider each belligerent party’s overall commitment, or lack thereof, to LOAC compliance.
The report fails to acknowledge and consider the consequences of engaging an enemy who routinely and deliberately violates the fundamental LOAC principle of distinction by commingling with the civilian population in order to gain tactical advantage. While the principle of distinction requires those conducting attacks to distinguish between lawful targets and civilians and civilian property, it also imposes an obligation on belligerents to distinguish themselves from civilians and civilian property.
When civilian facilities or protected sites are transformed by their use, location, or purpose into a military objective, they become a lawful target. Hamas fighters not only did not distinguish themselves from the civilian population, they deliberately exploited the civilian population and civilian property by cloaking themselves in the appearance of civilians to gain tactical advantage against an enemy committed to compliance with the distinction obligation. The routine violation of this fundamental LOAC requirement produces highly negative consequences, most notably the dilution of the LOAC’s protective effect for actual civilians and for civilian property.
The report includes a confused statement of the law related to the legality of attacking members of organized belligerent groups: “a member of an armed group has to have a continuous combat function to constitute a legitimate military target.” Contrary to this assertion, members of organized armed groups are targetable to the same extent as members of the armed forces of a state. LOAC imposes no requirement that the individual member be performing a particular function at any given time.
There can be virtually no dispute that the IDF commits substantial resources and emphasis to understanding and complying with the LOAC, while there is information indicating that Hamas leadership encourages the deliberate violation of the law.
Lt.-Col. (ret.) Geoffrey S. Corn, a professor at South Texas College of Law, served as the U.S. Army’s senior law of war expert advisor.
(Click on the article’s title to see the whole article…Ed.)