On the 2014 Gaza War Assessment

The recent “2014 Gaza War Assessment: The New Face of Conflict” deserves careful reading and consideration by all LOAC scholars and practitioners.  The report was written by five richly experienced retired U.S. military officers, all of whom have served during times of armed conflict and understand the inherent difficulties of modern urban conflict. One of the most forceful arguments these past battlefield commanders makes is that the U.S. needs to carefully observe the conduct of modern urban hostilities and prepare for similar future conflicts based on those lessons learned.  They argue

“Future, and perhaps even ongoing, conflicts will match the U.S. military against adversaries employing Hamas’s unlawful tactics that increase civilian casualties so as to undermine the legitimacy of U.S. military operations, encourage international actors to condemn and pressure the United States and sap its will to continue such campaigns.  When confronting such a foe, unnecessary greater restraint in U.S. military operations will not deliver victory.”

To be clear, the Generals who wrote the Report are not suggesting that policy constraints should never be superimposed on LOAC authority. Instead, they emphasize that such constraints - constraints they all operated under or perhaps even dictated in the form of rules of engagement - be implemented only when balanced against the imperatives of mission accomplishment, and not in response to erroneous or distorted claims of law violations. Whether or not you agree with the application of their reasoning to the Gaza conflict, their perspective on the legal and operational difficulties in modern urban conflict deserves respect and due consideration.  They urge the US to prepare for an enemy who uses military resources to raise the costs to civilians and military forces, deliberately provokes and exacerbates the collateral damage caused by lawful military responses, and deploys a well-orchestrated information campaign of distorted facts and legal principles to undermine the legitimacy of responsive actions.  As the United States continues to develop advanced weapons based on emerging technology, its opponents will rely more heavily on similar tactics as the only “effective” road to victory. The conclusions the Report draws and the warning voice it raises deserves close attention. In addition to the substance of the Report, one of its key benefits is that it keeps military commanders in the discussion.  Over the past century, academics and lawyers have carried increasing influence in the law of armed conflict debate. If the law is going to continue to be responsive to developing military tactics and capabilities, military commanders have to be engaged in the conversation to ensure that legal evolution remains grounded in the practical realities of military operations. Eric Jensen is Associate Professor of Law at BYU Law School.  He teaches and writes in the areas of Public International Law, Criminal Law, The Law of Armed Conflict, International Criminal Law, and National Security Law. Prior to joining the BYU law faculty in 2011, Professor Jensen spent 2 years teaching at Fordham Law School in New York City and 20 years in the United States Army as both a Cavalry Officer and as a Judge Advocate.