Israel’s Indiscriminate Attack on Shujaiya

by Kevin Jon Heller

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas’s use of human shields is responsible for any innocent civilians the IDF does kill.

When speaking anonymously, however, those same officials tell a very different story.

Exhibit A: an absolutely devastating new article in Al Jazeera America about Israel’s destruction of Shujaiya in Gaza, which involved 258 IDF artillery pieces firing 7,000 high-explosive shells into the neighborhood, including 4,800 shells in seven hours. I’m not sure I’ve ever read quite such damning statements about the IDF’s tactics, going far beyond John Kerry’s widely reported sarcastic comment that the attack was “a hell of a pinpoint operation.” Here is a snippet from the article:

Artillery pieces used during the operation included a mix of Soltam M71 guns and U.S.-manufactured Paladin M109s (a 155 mm howitzer), each of which fires three shells per minute. “The only possible reason for doing that is to kill a lot of people in as short a period of time as possible,” said the senior U.S. military officer who spoke with me about the report. “It’s not mowing the lawn,” he added, referring to a popular IDF term for periodic military operations against Hamas in Gaza. “It’s removing the topsoil.”

“Holy Bejesus,” exclaimed retired Lt. General Robert Gard when told the numbers of artillery pieces and rounds fired during the July 21 action. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.” A West Point graduate, who is veteran of two wars and now the Chairman of the Washington, D.C.-based Center for Arms Control and Non-Proliferation, Gard added that even if Israeli artillery units fired guided munitions, it would have made little difference.

[snip]

Senior U.S. officers who are familiar with the battle and Israeli artillery operations, which are modeled on U.S. doctrine, assessed that, based on the rate of artillery fire into Shujaiya overnight Sunday, IDF commanders weren’t precisely targeting Palestinian military formations, as much as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.”

The Israelis’ own defense of their action reinforced the belief among some senior U.S. officers that artillery fire into Shujaiya had been indiscriminate. That’s because the Israelis explained the civilian casualty toll on the basis that the neighborhood’s non-combatant population had been used as “human shields” because they had been “ordered to stay” in their homes by Hamas after the IDF had warned them to leave.

“Listen, we know what it’s like to kill civilians in war,” said the senior U.S. officer. “Hell, we even put it on the front pages. We call it collateral damage. We absolutely try to minimize it, because we know it turns people against you. Killing civilians is a sure prescription for defeat. But that’s not what the IDF did in Shujaiya on July 21. Human shields? C’mon, just own up to it.”

As I said, stunning stuff. And utterly damning of the IDF — the “most moral army in the world.” It’s just a shame the US government won’t be more open with what it really thinks about the IDF’s actions. Perhaps then Israel wouldn’t feel free to use force against Palestine with impunity.

NOTE: After reading the article in Al Jazeera America, make sure to read Shane Darcy’s important post at EJIL: Talk! discussing a recent decision by Israel’s Supreme Court that upholds the legality of collective punishment.

http://opiniojuris.org/2014/08/27/israels-indiscriminate-attack-shujaiya/

50 Responses

  1. 2 quick questions:

    1. I assume the IDF has read the Gotovina judgment. What do you think about the lack of clarity in that case about the acceptable range of error in shelling operations vis-a-vis this case?

    2. It is pretty clear from this post and others that you think that the IDF has committed war crimes. And if the report is anything to go by, it would appear that the munitions came from the US. Further, the US’continued military support for the Israel/IDF (munitions, funding, etc.) is well documented. Given the latest operations by the IDF (and other that preceded it) would you be of the view that such support was rendered with knowledge of such crimes and that it had a substantial effect of their commission – the classic definition of aiding and abetting (leaving aside the specific direction debate)?

  2. Was this article written by the same Mark Perry who served – albeit unofficially – as an adviser to Yasser Arafat?

  3. Israel will always be critized no matter what it does. That#s why some people only pay slight attention to the criticism, in particular if it comes from countries that either have no experience in asymmetric combat situations against groups fighting in a way like Hamas does or who have a bad track record in such situations themselves (US).

  4. and by the way – Al Jazeera? Really? Not the best source; look at who is behind it (Qatar) and at the way it has been reporting on Gaza the past weeks.

  5. Yeah, US criticism of Israel really doesn’t matter because it hasn’t completely defeated al-Qaeda. And you’re absolutely right — I’m sure Al Jazeera America just made up the quotes in the article.

  6. Kevin,

    There didn’t seem to be much by way of data in the article, but I think that might be because it was assumed people were already familiar with the particular event. Do you think it is being argued that the attack was indiscriminate because of:

    a. disproportionate civilian casualties

    b. disproportionate civilian property damage

    c. a combination of a. and b.

    d. employing means that could not be directed at a specific military objective

    e. bombarding as a single military objective separated and distinct military objectives in a city or town

    This seems important, as a. to c. requires a proportionality analysis, while d. and e. are just about the means and methods employed.

  7. Ian,

    I think the most important criticism was (d) — that given the number and type of shells, the time-frame, and the nature of attacked area, the IDF could not have discriminated between civilian objects and military objectives. But there is also a sense of (a) and (b) with regard to the cratering, which I read as claiming that in order to destroy a legitimate military objective, the tunnels, the IDF decided to simply level the entire neighborhood in the hope that doing so would cause the tunnels to collapse — which was disproportionate.

    What do you think?

  8. Seriously…… Al Jaz?????? Was barely worth reading through. i also find it strange that the article talks about a “walking barrage”. Okay a walking barrage of thousands of shells in a densley populated area and no reports of tens of thousands of deaths? Surely a “walking barrage” would have obliterated everything in site. utter garbage hand picked by someone who obviously is desperate to paint a bad picture of the IDF’s defensive tactics.

  9. “[U]tter garbage hand picked by someone who obviously is desperate to paint a bad picture of the IDF’s defensive tactics.”

    I’m glad you know more about military action than the US military officials quoted in the article — though, curiously, you do not explain why those officials are so desperate to slur the IDF’s “defensive tactics.” In any case, it would be a shame for you to keep your superior knowledge to yourself. Perhaps you would be willing to hold a seminar for the retired Lt. General and explain to him the nature of urban warfare?

  10. Kevin,

    It is hard to say. I suspect you are probably right that the commentators had d. in mind, but this reflects the problem that a few people (eg, Laurie Blanks) have been raising — the media commentary uses legal terms but without the level of detail required for informed discussion.

    For example, how many buildings were destroyed? Did the tunnels collapse? Was there another way of achieving that military advantage with less collateral damage? Sitting half a world away, I honestly do not know the answers to any of these questions.

    Urban combat is a challenging area for the *application* of LOAC/IHL and would make for an extremely interesting and very topical discussion/workshop/seminar.

  11. Ian,

    Your points are, of course, well taken. What makes the article so interesting — and thus worth posting about — is the source of the criticism: the US military. Whether the criticisms are completely accurate or not (my guess is that they must be pretty accurate for officials to say them on the record, if anonymously in all but one case), the real feelings of the US military are important and revealing.

  12. Interesting how some critics of Israel are switching between conflicting perspectives to suit the damning conclusion they reach in each and every case.
    Sometimes they focus on the outcomes of an attack: the absolute number of civilian casualties or the extent of civilian property damaged, declaring that it “proves” it was a clearly disproportionate attack. I hope in this forum I do not need to elaborate why that is legally flawed.
    In other instances, like the current case, emphasis is made on the means used: 7000 artillery shells in one day. Yes, assuming the numbers are correct this is a lot of fire power, considering that this “neighborhood” is a large town with a peacetime population of about 100,000 people. Again, the claim is that such an attack in an urban area is disproportionate per se. Funny enough, outcomes are not mentioned. Therefore, I looked for information from Palestinian sources, to be on the safe side. These sources claims that 66 “Palestinians” were killed that day in Shujaiya [see: http://www.maannews.net/eng/ViewDetails.aspx?ID=714820%5D . As usual, there is no distinction in these reports between militants and civilians, as Hamas wishes to hide its casualties. Although some UN agencies and other NGO’s claimed that around 80% of Palestinian casualties are civilians, other objective professionals raised doubt over this assessment drawing attention to the large proportion of young men among reported casualties, in relation to their percentage in the general population [see Head of statistics for the BBC: http://www.bbc.com/news/world-middle-east-28688179?SThisFB ]. After operation “Cast Lead” there were similar estimations, while two years after the operation a Hamas minister stated that two thirds of the casualties were militants, aligning with Israeli assessments. However, again, for the sake of the argument, let’s take the average and assume that half of the casualties are civilians – 33 people. 7000 artillery shells in an “indiscriminate” attack on a civilian town and just 33 people killed? Maybe Israeli artillery is the worst in the world. Another possibility is that that collateral damage expected was taken in account by the IDF, more than assumed by some anonymous sources. Another important fact, actually mentioned in the Al Jazeera article, but not in this post, is that 13 Israeli soldiers were killed in the hard fighting that day.
    I think the truth lays in the comments of Ian Henderson: we can not really assess the legally of an attack just looking at outcomes or at means (unless the means are prohibited per se, such as chemical weapons). You have to have a broader picture on the military advantage anticipated and the collateral damage expected in “real time” by the relevant IDF commanders. At this stage, we don’t have this information. Maybe Israeli investigations of the incident will reveal them in the future.

  13. Response…
    I am surprised by the comments regarding Al Jazeera. I haven’t watched AJ America, but I think that AJ English has some of the most informative and unbiased reporting (and documentaries)) around. In any event, I am sure that Al Jazeera is not responsible for the shocking decision of the Israeli Supreme Court in Qawasmeh. I personally drafted part of a judgement at an international criminal tribunal finding the accused guilty of collective punishment. This is no obscure issue.

  14. This is by far my favourite apology for Israel’s actions: the IDF would have killed far more people (not only 66 in seven or so hours) if it was firing indiscriminately.

    When apologists for Israel’s indiscriminate and disproportionate use of force are reduced to nitpicking the assessment of senior US military officials, we know Israel is (finally) losing the PR battle.

    But sure, “maybe Israeli investigations of the incident” will reveal the necessary information. I’m not holding my breath. It’s amazing how, for the right wing, the only “objective” investigations of Israel’s actions are those conducted by Israel itself — an idea that is laughable on its face (as is the idea that any state will “objectively” investigate its own actions).

  15. Charles,

    You’re missing the syllogism:

    1. Any claim that Israel has done something wrong is biased.
    2. Al Jazeera claims that Israel has done something wrong.
    3. Therefore, Al Jazeera is biased.

    QED.

  16. Readers should note that the article does indeed mention the 13 IDF soldiers killed — and explains that their commanders’ embarrassment helps explain why the IDF quickly resorted to carpet bombing Shujaiya instead of continuing the ground attack.

  17. Sometimes sarcasm is a way to avoid a straight answer to a simple question: How is it that an “indiscriminate” attack by supposedly 7000 lethal artillery shells in an urban area kills only 66 people, only a part of them civilians? that is more than 100 shells per one casualty.
    AS for reasons for laughter or trust, this by itself is subjective. You of course are entitled to hold your opinion. The objective fact is that in international law states do have the principal responsibility and right to investigate allegations of IHL breaches by their forces. My opinion is that although some specific rulings can always be criticized the Israeli legal system proved to be more critical of Israeli government actions than most democratic states legal systems and in much harder national security circumstances. I have less trust in the objectivity and fairness of bodies like the UN Human Rights Council, for instance.

  18. Liron,

    You’re right — I apologise for the unwarranted sarcasm. Yours was a serious comment, unlike some of the others that originally drew my ire.

    That said, on a doctrinal level, I find your argument unconvincing. In your first comment, you criticised Israel critics for opportunistically switching between focusing on effects and means. Yet that is precisely what you do regarding indiscriminate attacks. An attack is indiscriminate if it is incapable of distinguishing between civilian objects and legitimate military objectives. The focus is not on the ends but on the means — in this case, as the senior US military officials pointed out, thousands of HE shells in seven hours in a densely populated urban environment. Often such indiscriminate attacks will cause significant civilian casualties; sometimes they won’t (whether because of luck, warnings, faulty munitions, or whatever). It is thus problematic to infer that an attack was not indiscriminate simply because it didn’t kill that many civilians. And it is even more problematic to suggest that an attack was not indiscriminate because the attacker could have been even more indiscriminate if it had wanted to be.

  19. How does the number of shells fired establish whether or not proper distinctions were made between legitimate and illegitimate targets?

  20. UN paints a clearer picture of the casualties in Shujaiya, Gaza City:

    “Half of the population of the Gaza neighborhood of Shujaiya fled their homes amidst heavy Israeli military bombardment this past weekend. At least 120 people were reportedly killed and many further missing – believed to be buried under the rubble in inaccessible areas. Hundreds more are wounded. Of the dead, 26 were children and 15 women.”

    Speech of Assistant Secretary-General UN-OCHA Kang Kyung-wha on 23 Jul 2014- http://reliefweb.int/report/occupied-palestinian-territory/assistant-secretary-general-humanitarian-affairs-and-deputy

  21. Response…How does the number of shells fired establish whether or not proper distinctions were made between legitimate and illegitimate targets?

    I thought “Holy bejeezus” was a guarded understatement. If you had “a minimum of 258 artillery pieces” firing on targets located in a neighborhood of Gaza City, you would need to have observers controlling and calling in corrections regarding the point of impact or blast from the shells fired by each battery at each of your legitimate objectives. When your rate of fire creates “a barrage of some 4,800 shells during a seven-hour period” the hypothetical observers would have great difficulty determining which battery any errant shells were actually coming from and insufficient time to make corrections in any event. At that point, no reasonable person would say that it was an example of properly “observed”, “controlled”, or “discriminate” artillery fire.

  22. I wonder, though, is Al Jazeera a credible source here? I mean, consider the following:

    “The more worrisome feature of Al Jazeera is that it often slants its news with a vicious anti-Israel and anti-American bias. Islamic radicals dominate its talk shows, and the station reported that Jews were told not to go to work in the World Trade Center on Sept. 11 — promoting the rumor, widely believed by Muslims, that Jews were behind the attack. Its biases mirror public opinion in the Islamic world, but this deeply irresponsible reporting reinforces the region’s anti-American views.”

    http://www.nytimes.com/2001/10/10/opinion/censorship-in-pashto-and-arabic.html

    Should anyone take it seriously?

  23. Anon,

    1. That article is 13 years old and was published a month after 9/11. It should be taken with a grain of salt.

    2. More importantly, the article in the post was published by Al Jazeera America, which is editorially independent of “original” Al Jazeera. It’s President is a former VP of ABC News.

    3. Unless you think AJA is simply making up the quotations in question, what would it matter if the media outlet was somehow biased against Israel?

  24. Kevin,
    I must admit you have a point there. You are right that a relatively low number of casualties is not a conclusive evidence of a legal attack. Actually, in the context of the same conflict there is a good example: Hamas fired more than 4,500 rockets and mortar shells on Israel, killing “only” seven civilians. However, this result is not a consequence of taking the legally needed precautions in attack. It is clear from Hamas statements that the objects of the attacks were Israeli cities and population centers, which make each and every attack a war crime, even if a specific rocket fell in an open field and caused no damage.
    That being said, I think that while “luck” can explain no casualties in a specific illegal attack, when we are talking of thousands of projectiles supposedly being fired, statistics does have some evidentiary weight, though not conclusive. In the case of Hamas rockets fired, a probable explanation for the low casualty rate is a combination of the inaccuracy of the rockets, Israeli advance warning systems and sirens, proper bomb shelters, general adherence of the Israeli civilian population to civil defense instructions and last but not least – the “iron dome” rocket intercepting system. What is the explanation for the relatively low casualty rate in the Shujaiya case?

  25. 1. And AJA’s article was published shortly after the end of this year’s Gaza War.

    It’s not like it matters as to whether the article’s claims are correct or not, though. Or that it matters as to whether AJ really spread the conspiracy theory that Jews were warned in advance in 9/11, if it did, it was quite clearly disinformation to say the least.

    2. The owners of both channels are the same, so it is completely legitimate to wonder if AJA is really editorially independent, especially when it comes to issues that affect Qatar’s foreign policy.

    3. That is definitely a possibility, particularly in light of the clear example of propaganda I provided.

  26. Oh, well, I tried to give you a rational answer. I suppose we have to assume the US military and the retired General are all in on the propaganda conspiracy, given that neither have accused AJA of making the quotes up.

  27. Why would they need to address AJA’s at all?

  28. The discussion above raises the arguably nonsensical question of how many people need to die per shell before an attack is indiscriminate. It’s probative of nothing really. Casualty figures in the dozens are a regular feature of the conflict not far away in Syria, where the indiscriminate bombardment of urban areas is by now an accepted fact. By comparison, the shelling of Zagreb with M-87 Orkan rockets containing in 1995 caused ‘only’ 7 deaths even though the rockets contained in aggregate thousands of sub-munitions. Nevertheless it was rightly found to be an indiscriminate attack, by virtue of the inability of the method and means used (firing unguided area weapon into a city) to distinguish military objectives from the civilian population.

  29. If I am not mistaken, there is, perhaps, a basic error in identifying the incident. The shelling was not employed to destroy the tunnels at all. It resulted just after the APC was hit by an RPG and in the ensuing attempt to deal with the wounded, extricate them and defend themselves against the Hamas attacks, it became apparent to the local command that the troops were in danger of being overrun and overpowered by snipers, etc. who had positioned themselves inthe buildings. The decision was made to lay down a heavy barrage to clear the area and all soldiers were instructed to enter their armored vehicles and shells were fired to within 100 yds or so to stem the Hamas assault. Again, I Isuggest that the tunnels were not the object since all of them were entered and explosives detonated therein in controlled explosions. Al-Jazeera, acting as a propaganda unit fro Qatar, Hamas’ major financial backer has obfustcated the situtation, mixing up a legal expert who, I think, has no more military experience or knowledge than I.

  30. Are you saying you are a retired Lieutenant-General?

  31. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.”

    Unfortunately, the good retired general’s assessment does not conform to the actual practice of the United States. We know that in dealing with the honeycombed tunnels Cu Chi, the US engaged in a campaign of carpet bombing.

    We witnessed similar carpet bombing in Afghanistan dealing with, you guessed it, honeycombed tunnels among other objects.

    Considering the significant number of foreign powers participating in the coalition, none of whom to the best of my knowledge made any substantial objection to these tactics, one would have a rather difficult time asserting that the general’s expansive definition of proportionality conforms to the customary international law on the matter.

    Moreover, one must wonder whether the whole of a territory that is sufficiently honeycombed with tunnels becomes a military object in the same way that a military base is a military object, which of course also contains many objects within that would otherwise be considered civilian objects. Looking to Vietnam and Afghanistan, the USA (and coalition partners) certainly treated the aforementioned type of territory as such.

  32. Wouldn’t the above raise the issue as to whether building tunnels below an urbanized area is an instance of shielding?

  33. I think it’s clear in this instance that the honeycombed tunnels were present because there was a clear military rationale for their presence and no equally effective feasible alternative. Shielding is a crime of intent, and I don’t see how the tunnels would qualify as shielding, all things held equal, when the military motivation is quite obvious.

    The fundamental issue here, however, is should the whole of the territory be considered a military object given the heavily interdependent nature of the military structures with the surrounding objects?

    On a side note, for those who are interested: I am browsing the current US military field manual and the one in effect at the time of the Cu Chi carpet bombings. Thus far, I have not seen a shred of evidence that the US military has adopted a more expansive definition of proportionality. In short, I suspect further confirmation of my hypothesis that what the one named retired general and unnamed Pentagon officials said with respect to Israel’s actions are not consistent with the actual standards established by the United States both in letter and practice.

    It’s also important to remember that proportionality is measured by the expected damage, not the rate of fire. When we compare Cu Chi to Gaza we are not concerned about the type of weaponry, we are concerned about the expected harm. If 100 million bullets were fired in an hour in one situation and a two nuclear weapons in 10 hours were dropped in another, we most certainly do not suggest that the former is a better candidate for disproportionality than the later because the rate of fire in the former is greater. Likewise, in comparing the carpet bombing of Cu Chi to the artillery firing in this situation, we are concerned with the expected harm rather than the rate of fire or the type of weaponry involved.

  34. Response… It resulted just after the APC was hit by an RPG and in the ensuing attempt to deal with the wounded, extricate them and defend themselves against the Hamas attacks, it became apparent to the local command that the troops were in danger of being overrun and overpowered by snipers, etc. who had positioned themselves inthe buildings.

    You are mistaken. Suppressing fire is used to distract the enemy and prevent them from accomplishing their tasks. It only requires a low rate of fire and results a low expenditure of ammunition, not a massive barrage involving hundreds of pieces of artillery.

    Response … We know that in dealing with the honeycombed tunnels Cu Chi, the US engaged in a campaign of carpet bombing. … & etc.

    The analogies are somewhat inapt. The situation in Afghanistan is the subject of a preliminary examination by the ICC Prosecutor. In any event, the Afghan mountain fortresses were not located in urban centers. The Vietnamese tunnels were constructed as a refuge from the bombing and artillery fire above ground. The tunnels that were targeted by the USAF B-52 bomber operations you mentioned, were in a lush jungle, not in a heavily populated urban neighborhood.

    To give you some perspective, the US established a loose cordon around Fallujah, Iraq during an eight month-long standoff that allowed the population time to evacuate. British military officials criticized the US commander for firing 40 155mm artillery rounds into a small sector of Fallujah during a single night as part of the preparations for the siege of the city. The use of high explosive and white phosphorus mortar rounds was also widely condemned. There have been no shortage of allegations of war crimes and crimes against humanity in that connection, but the number of artillery pieces and the rate of fire never approached anything like this IDF barrage on the neighborhoods of Gaza City.

  35. With respect to Cu Chi what we’re concerned about with respect to proportionality is not the terrain as such. The territory was littered with civilians. The tunnels themselves had civilians. There were even schools in them!

    I’m not sure why it’s relevant that the ICC is investigating what happened in Afghanistan. If we are interested in such investigations we should consider the tactics in the “war or terror” in general and examine ocampo’s refusal to prosecute.

    My essential point is about the definition of proportionality under which the US and coalition forces operate.

    Even if we factor In the terrain of the tunnels in Afghanistan, we should consider the totality of activity in the campaign.

  36. Response…With respect to Cu Chi what we’re concerned about with respect to proportionality is not the terrain as such. The territory was littered with civilians. The tunnels themselves had civilians. There were even schools in them!

    The tunnels were a valid military objective. You haven’t cited a single urban, built-up area or school in the Saigon/Chu Chi district that was targeted or bombed during the B-52 operations in question. FYI, those Air Force operations aren’t governed by the Army artillery field manuals you’ve cited or the Army doctrines regarding the destruction, neutralization, or suppression of an objective through indirect fire or the use of indirect weapons.

    Response . . . I’m not sure why it’s relevant that the ICC is investigating what happened in Afghanistan.

    My point is that this assault on an urban neighborhood warrants a similar review. I think you are taking the Army General’s remarks somewhat out of context. The fortified networks of caves and bunkers in Afghanistan were not located in urban areas and no one was carpet bombing or firing 7,000 rounds of high explosive artillery at an urban neighborhood in Afghanistan in a single 24 hour period.

  37. There is not one law of proportionality for urban areas and another for jungles. There is not one law for air force another for ground troops.

    The critical factor is expected harm. Do you wish to argue that the USA expected less incidental damage to civilian objects than Israel did in the matter at hand?

  38. “I think it’s clear in this instance that the honeycombed tunnels were present because there was a clear military rationale for their presence and no equally effective feasible alternative. Shielding is a crime of intent, and I don’t see how the tunnels would qualify as shielding, all things held equal, when the military motivation is quite obvious.

    The fundamental issue here, however, is should the whole of the territory be considered a military object given the heavily interdependent nature of the military structures with the surrounding objects?”

    I am not so sure about this. In particular, wouldn’t the same military objective be achievable if these tunnels were built in an area with a lower population density? Doesn’t this interdependency between the tunnels and the neighborhood above it make one wonder whether there is a rationale for building those tunnels below it? In particular, the possibility that the presence of civilians and civilian infrastructure may hamper Israeli attempts to destroy the tunnels.

  39. Very fair point. It boils down to the following:

    1. Why is Hamas building honeycombs there?

    – because it believes that it is reasonable for Israel to attack there in the event of a war.

    2. Why does Hamas Expect an Israeli attack there?

    – because Hamas operates from there.

    3. Why does/was Hamas operate(ing) there?

    This is the absolutely critical question.

  40. Response . . . There is not one law of proportionality for urban areas and another for jungles.

    And its against the law for the rich and poor alike to sleep under bridges and panhandle for their meals. The risk to protected persons from the operations you cited were not nearly as high as operations in a densely populated built-up area, like an urban center.

    Response . . . There is not one law for air force another for ground troops.

    I was discussing a difference in doctrines that result from the use of more accurate weapons, like the Joint Direct Attack Munition (JDAM), versus less reliable indirect fire weapons.

    Response…Do you wish to argue that the USA expected less incidental damage to civilian objects than Israel did in the matter at hand?

    Yes, of course. The Gaza Strip is one of the most densely populated areas in the World. There simply weren’t any such civilian population centers or built-up areas involved in the rural operations that you mentioned above. They were nothing like the massive bombing raids over cities during WWII in which hundreds of thousands of civilians were killed. The air operations you cited were being observed and controlled by a tactical air control system which employed forward air control parties. In the case of Afghanistan and Iraq, laser designators and guided direct fire weapons were used extensively instead of field artillery. Under those particular circumstances, you should expect less incidental damage. All of these were wars of choice and amounted to aggression on the part of the US. Systematic crimes were certainly committed against the civilian population under the auspices of the Strategic Hamlet, CORDS, and some of the bombing and mining operations. I just don’t think the ones you cited are very good examples.

  41. So you’re saying its really just a fluke that exponentially more were killed in the cu chi attacks than shujaiya? The USA should have expected far less and Israel should have expected far more and the opposite happening was not rationally expected?

    I don’t understand this fixation with Gaza’s population density and urbanization. A normally densely populated urban area can be without a major civilian presence at a time and a normally deserted jungle can be booming with civilians.

    Even if we grant your argument regarding Afghanistan, it certainly doesn’t apply to Vietnam without making some very strange assumptions.

  42. Response . . . So you’re saying its really just a fluke that exponentially more were killed in the cu chi attacks than shujaiya?

    You are not being very specific about non-combatant deaths, when you simply say that “exponentially more were killed”. The US phase of the armed conflict in the Chu Chi district lasted (at least) from 1965 to 1975, not 51 days. Some 12,000 Viet Cong and civilians died there during the war. I don’t believe that non-combatant deaths were exponentially higher than the civilian casualty rates seen in Operations Cast Lead, Pillar of Defense, and Protective Edge.

    Response…I don’t understand this fixation with Gaza’s population density and urbanization.

    Because there happen to be many more protected persons per acre than you’d find in the rural areas or jungles that you’ve been discussing. In addition, there are many more homes and shelters, and infrastructure which is essential to the population’s survival.

  43. You’re comparing apples and oranges. The comparison isn’t between the attacks on Cu Chi and an entire Israel campaign throughout Gaza (Cast Lead, Pillars of Defense, Protective Edge).

    My comparison is between the attacks on Cu Chi and the attacks on Shujaiya.

    Is there a disagreement between us that the campaign to eliminate the tunnels of Cu Chi resulted in far more civilian lives than the alleged campaign to eliminate the Shujaiya tunnels?

    While on any given day it is very reasonable to expect more civilians in an urban area than a jungle, the law of proportionality is not about any given day. It’s about the exact circumstances at the time. We do not care about whether or not Shujaiya is generally densely population. We care about whether or not it was densely populated at the time of the attack and what the attacking party reasonably believed about the civilian density at the specific time. I do take note of the fact that an urban area may obviously contain more civilian structures than a jungle.

  44. Matthew,

    If you could point me to a post-Vietnam statement by the US affirming the proportionality of the bombing of Cu Chi, I would appreciate it.

  45. I’ve put in an FOIA with the air force on this matter several days ago. I will keep you updated.

  46. For a more accurate military opinion on the IDFs performance please see recent interview Richard Kemp former commander of the British Forces in Afghanistan. His expert opinion is based on the actual success/results of the IDFs operations (i.e. what was teh result of the methods used) rather than simply making a statement based on operational methods (i.e. what was used to get the job done)The article reads as such

    Israel’s ratio of civilian to military casualties in Operation Protective Edge was only one-fourth of the average in warfare around the world, former commander of British forces in Afghanistan Col. (res.) Richard Kemp told the Knesset Foreign Affairs and Defense Committee Wednesday.

    Kemp pointed out that, during the operation, there was approximately one civilian casualty for ever terrorist killed by the IDF, whereas the average in the world is four civilians for every combatant, and that, when taking into consideration Hamas’s use of human shields, this shows how careful the IDF is.

    “No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel,” he told the committee.

    Kemp, who has long openly admired the IDF’s military tactics and testified in Israel’s favor to the Goldstone Commission following Operation Cast Lead in 2009, visited Israel during Operation Protective Edge.

    The retired colonel was invited to the committee by Foreign Affairs and Defense Committee chairman Ze’ev Elkin to share his knowledge on law and ethics in war.

    “The IDF’s actions during Operation Protective Edge were very reasonable, especially in light of the fact these actions were meant, first and foremost, to strike Hamas as a military organization,” Kemp told the panel.

    “During the whole operation Israel was very careful under all the limitations of international law. Even if there were exceptions, there were very few and in cases when there was no possibility, and there was no intention to hurt civilians.”

    According to Kemp, Israel had legitimization, under international law, to strike hospitals, schools and places of religious worship that were being used to store weapons or launch missiles.

    The legality of hitting such a site, risking civilian lives, is “a difficult question for anyone to answer,” Kemp said, one that a commander on the ground or ordering an air strike would have to answer in the moment.

  47. Shorter “legal student”: Kemp’s military opinion is more accurate because he agrees with me.

  48. Kevin

    Very childish response. Maybe if you actually read my post you wouldnt make a fool of yourself.

    The opinion given by the British Colonel is based on the actual results of the IDfs operation and the fact that compared to the World average for conflicts (inclusive of the UKs and USAs performance) they performed far better.

    Their performance and resutls, regardless of the amount of bullets shot, speaks volumes when assessing “proportionality”.

    The US military official merely gives an opinio based on the IDF’s method during one single event out of hundreds during their operation in Gaza.

    I think most of those who follow and contributing to this blog would be very interested in the opinion of a commander of the British Forces in Afghanistan based on the IDFs actual performance.

    Shame you dont seem to think that this is important. Maybe you see no need to consider his factual opinion since you have a clear bias to anything supportive of Israel or the IDF??.

    Liron A. Libman makes very good point that outcomes are often ignored when they are to the benefit of Israels/IDFs image. The entire opinion piece form Al Jaz clearly attempts to label the IDFs operation in Gaza as disproportional based soley on mehtodology and not outcome. The British Colonel clearly shows that this is not the case.

  49. Reprinting an article and then claiming it is “more accurate” is not an argument.

    In terms of substance, however, absolutely nothing can be learned about proportionality by comparing the combatant:civilian ratio of IDF operations to the combatant:civilian ratio of operations conducted by other militaries elsewhere in the world. That is not how proportionality is assessed as a legal matter, which focuses solely on the relationship between military advantage and expected civilian damage within a particular operation. Nor is the comparison even remotely useful from a normative perspective, given that it glosses over any and all relevant differences in the military operations undertaken by different militaries in different parts of the world. Indeed, it is a metric that is designed solely to insulate Israel from blame — just another version of the intellectually bankrupt argument that Israel’s attacks cannot be considered disproportionate because Israel could have killed far more civilians if it had wanted to.

    (Lest you think I am simply biased against Israel, I have consistently condemned the left’s equally legally irrelevant comparison of the number of Palestinian civilians killed to the number of Israelis civilians killed in a particular military operation, which is a metric that is designed solely to make Israel look bad.)

    Moreover, you seem to completely misunderstand the difference between a disproportionate attack and an indiscriminate attack. As I have explained elsewhere in this thread — and as conceded by Liron — it is simply not the case that a legally indiscriminate attack must result in disproportionate civilian casualties. Indiscriminate attacks focus precisely on means, not on outcomes. Indeed, were it otherwise, it would be difficult to condemn (as I have, repeatedly) Hamas’s rocket attacks as indiscriminate attacks, given that they have killed less than 15 civilians in the past decade.

    In fact, by your and Kemp’s metric, al-Qassam is a vastly more moral army than the IDF. In Operation Protective Edge, Hamas has killed 66 IDF soldiers and five Israeli civilians — a combatant:civilian ratio of 11-1 — far, far better than the 1:1 IDF ratio.

    I look forward to your effusive praise of al-Qassam’s restraint.

  50. Kevin –

    Just to be clear. You hold the following position:

    1) It is reasonable to accept as valid a report released by the media arm of one state on the activities of a de facto enemy state because the media arm has “editorial independence.”

    2) “is laughable on its face…that any state will “objectively” investigate its own actions.”

    Do you wish to argue that the “editorial independence” of democratic state’s self-inquiries somehow falls short of of that of al-Jazeera English? If so, then why throughout modern history do we have things like the damning Blount Report, ripping the US to shreds for the invasion of Hawaii, the UK’s Chilcot Inquiry and the Kahan Commission?

    How are your positions consistent?

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