'UN Enabling Hamas to Manipulate Laws of War to its Advantage'

US military expert says UNHRC report into last summer's Gaza war based on fabricated legal assumptions.

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Ari Soffer,

Hamas - not a terrorist organization?
Hamas - not a terrorist organization?
Abed Rahim Khatib/Flash 90

A leading member of a committee of US military experts which probed Israel's conduct during last summer's war with Gazan terrorist groups has condemned Monday's UN report accusing Israel of possible war crimes, saying it "distorted" international law.

Speaking Monday at a presentation of the JINSA defense think-tank's Gaza Assessment Task Force findings, U.S. Army Lieutenant Colonel  (Ret.) Professor Geoffrey S. Corn criticized the UN Human Rights Council committee for not including any current or former military commanders and constructing legal arguments which were totally detached from reality.

In contrast, he noted, the Gaza Assessment Task Force - which found that Israel had taken extraordinary measures, even beyond the letter of the law, to minimize civilian casualties in Gaza - is "a report written by warfighting commanders."

"Ultimately this is the domain of commanders, not necessarily lawyers," Corn said of such reports. "Lawyers contribute by guiding comanders through complex legal questions, but ultimately what we're talking about here is... war, and war is the job of warfighters."

Professor Corn - former Chief of the Law of War Branch, and currently Professor of Law and Presidential Research Professor at the Texas College of Law - further noted that the UNHRC report totally ignored Hamas's cynical use of civilians as human shields as a political and diplomatic weapon.

Israel, he asserted, is dealing with the kind of "enemy who views your compliance with the law, or your commitment to comply with the law, as a tactical and strategic enabler for its own objectives."

He added that the entire process of accurately and objectively critiquing the IDF's legal conduct - as well as that of other militaries - is being "distorted" by a focus on the images of war beamed throughout the world via the media which, while inevitably harrowing, bear no legal significant whatsoever.

"The domain of images related to conflict has in many ways distorted the proper understanding of the law," Corn said.

"There is a perception that the laws of armed conflict... somehow imposes on military comanders an obligation to prevent civilian casualties. In fact, what it imposes on commanders is an obligation to mitigate risk through feasible measures designed for that purpose," he explained.

In short, he summed up, "process matters."

"The process of making an effort to comply with the law is an indication of the good faith commitment to the law by the parties to the conflict."

Using such a standard to compare the conduct of Israel on the one hand, and Hamas and other Palestinian terrorist groups on the other, clearly revealed which side was truly in breach of international law and which side was in fact acting fully within the law, Corn said of the Gaza Assessment Task Force's findings.

"On that score the outcome seems relatively clear," he said. 

"There is evidence reflected in the report of two sides to the conflict, one side making significant efforts - sometimes beyond what is required by the law - to mitigate the risk to the civilian population, and the other side actually trying to increase the risk to the civilian population in order to gain a strategic advantage in the international  public domain, and a tactical advantage by making it more difficult for their enemy to employ their power  to bring about the objective they seek to achieve."

He further noted that the fact that Israel is the militarily stronger party has absolutely no legal significance. "War is not supposed to be a fair fight," but one in which both sides do everything in their power to defeat the other, he said.

And in terms of civilian casualties, "the real question is not causation, it's responsibility. "

"Who bears responsibility for unnecessary suffering...? On one side, where you have efforts to warn, to evacuate, to select timing of attack and weapons for use in attack that mitigate the risk to the civilian population, and you're trying to do this in an environment where the enemy deliberately locates its most vital assets at the most protected civilian sites, it reveals to you where responsibility should be allocated" for the resultant civilian casualties.

But suggesting that "because there were civilian casualties international law must have been broken" is a further "distortion" of the law, he added - one perpetrated by the authors of the UN report, which imposed unrealistic standards on military commanders.

"Military commanders must "do their best to feasibly mitigate risk - but they cant prevent it.," he said, calling on the UN and other international bodies to "focus on what the law really demands."