The fourth panel at “Towards a New Law of War” was moderated by longtime Israeli journalist Yaakov Ahimeir.
In the past, military conflict had symmetry. Soldiers fight under rules of engagement that anticipate symmetry. Should a soldier out in the field expect to know who is a terrorist and who is a civilian? Is it possible to set rules that make sense for modern asymmetrical warfare?
U.S. Lt. Gen. David P. Fridovich spoke to the tensions that a commander faces. Time was that there was symmetry to the battlefield and he said commanders and soldiers spent a lot of time training about what an enemy was. More recently soldiers had to adapt to a dynamic process of understanding rules of engagement:
Fundamental rule: “Do nothing to limit the soldier’s inherent right of self-defense. Don’t add restrictions that will cause them jeopardy or harm.
Soldiers also must be trained and must understand what to do in a variety of situations. Another fundamental principle: Rules of engagement are “a point of departure,” and nothing more, The battlefield is “extremely dynamic.” There are supplemental rules of engagement; in the U.S.. these are “highly classified” because disclosing them would let the enemy know your limits and exploit it.
Commanders draw a balance of safeguarding the population and endangering their forces. This balance “causes nightmares” for commanders, “that you did not do enough.”
Professor Chris Jenks of Southern Methodist University said that the rules of engagement are a subset of the law of armed conflict. Most often ROE are going to be more restrictive than the law would allow.
The ROE sit at the intersection of the law, operations, diplomacy and politics. ROE are a subset of a variety of values, including operational, cultural, and political concerns.
So how far will commanders go? The RoE reflect the real tension Fridovich identified. From a U.S. Marines manual he noted what he called “the burden of command”: Leaders prepare soldiers to go into harm’s way while also protecting innocents.
He said that General McChrystal, NATO commander in Afghanistan, told his soldiers that they must respect the population to protect them from violence. Jenks said the general argued that soldiers must avoid the trap of winning tactical victories but having strategic defeats, losing popular support, which is decisive to the struggle. The Taliban can’t defeat us but we can defeat ourselves, the general argued. Excessive use of force resulting in an alienated population is a failure.
IDF Maj. Gen. Yom Tov Samia said he does not like the concept of “purity of arms.” “Weapons can’t be pure. Weapons kill people,” he said, saying he prefers the term “ethics of combat.” And he does not like the term “low-intensity conflict.” In Gaza and Lebanon, he said, the intensity for the troops is not so low. The term minimizes the strain under which soldiers work, he said.
He mentioned two sayings: “More than the people of Israel keep Shabbat, Shabbat keeps the people of Israel” and “More than the IDF will keep the ethic of combat, the ethic of combat will keep the IDF.”
The IDF is important to our society. The IDF, he said with apologies to Ben-Gurion, is a greenhouse, not a melting pot. He said the IDF must be sure to maintain ethics because its soldiers are the country’s next leaders.
In years past the challenge was leading people effectively into battle. Recently, the challenge of keeping ethics is challenging everyone – commanders and field officers.
Keeping ethics is a huge “challenge for young officers.” Samia said 95% of troops in the field units are high-school grads. That figure is 25% to 40% in other armies, he said. “We start with 95%,” which brings more qualified soldiers and commanders. This helps the field level maintain ethical conduct.
He said that “ethics of combat” has positives and negatives.
Positives: it “maintains the unity of troops”; “it safeguards the soul of the troops”; it helps prevent post-traumatic stress disorder (PTSD), and it keeps society at large healthier.
Negatives: EoC creates higher risk in the field and a higher risk factor for the troops. Soldiers, he said, can become confuse when an older woman or young child approaches and asks for water and could be wearing an explosive vest. Samia experienced this directly: a woman approached his IDF group and had two hand grenades, Nine soldiers were wounded.
And he said EoC increases attackers’ motivation to use civilians as shields because they know the IDF is maintaining the rules.
Ran Bar-Yoshafat, an IDF combat reservist, said that as a commander, he gets RoE for each mission, He has three goals, in priority: accomplish the mission, ensure all troops return home safely, and minimize collateral damage. He said the third goal can damage the first two.
He shared a story: During tje Second Lebanon War, his group was being fired at from a mosque. The rule was not to shoot at holy places unless you call and get approval and you could spot someone firing at you. In the course of the group requesting approval to return fire, an IDF soldier in a nearby brigade was killed. Today, he said, the rule is that if someone is firing at you, you are usually allowed to fire back.
Another incident: His group was shot at from a school. In general, he said, “you know that the vast majority of people in a school are children.” Usually IDF soldiers must take cover and not fire back. This incident occurred at night and the group responded.
While the basic judgment is that if someone shoots at a soldier, he can fire back, soldiers are not stupid, he said. “The problem is that you will always have more circumstances than rules.”
Soldiers wear heavy helmets and packs, making it harder to think, he said. They are tired, and they are being shot at. They follow the automatic procedures in which they were trained. These procedures need to be simple.
The reality is that warfare is much more complex than theoretical discussions. It’s scarier to think about talking to the mom of a soldier who died. Lots of complex situations arise.
He suggested a situation as an example: A door opens and you see a 10-year-old kid holding a gun. Do you shoot or do you not shoot? You have three options: Your soldiers get shot, you kill an innocent kid and you kill a non-innocent kid. You shoot and the kid is dead. You check the gun – and it is not loaded.
U.K. Col. Richard Kemp said that rules of engagement apply to battles on land, in the air, at sea and in cyberspace. In current conflicts, dealing with nonstate actors, air and sea RoE tend to be far less controversial than those for ground operations.
RoE put soldiers’ lives at risk, moreso on land than in the air and at sea. He cited a conflict: Air and ground separate have RoE, seeing the same thing from different perspective. For example, ground troops may feel they need air support. But from the air, the pilots may not be able to clearly see the targets and may consider civilian populations are too close by.
Soldiers need RoE when encountering human shields and terrorists in civilian clothes. This helps soldiers know the rules. ROE should distill government policy as applied to a particular conflict, and the military strategy.
In addition, RoE must take into account the laws of war. It’s a guide that reflects what politicians and generals want to happen and to keep w/in the bounds of the law of war.
RoE failures usually result from misunderstanding and misapplication of rules. This can be overcome by extensive training in RoE. Modern technology can provide this.
The Afghans, Kemp said, don’t have the same mentality as us. They respect strength and detest weakness. If they see U.S. forces withdrawing because of “courageous restraint,” they will see weakness. And then they prefer that the Taliban should be in power because that group’s fighters never show restraint. They see the Taliban asthe one that will take control.
Courageous restraint also caused a lot of morale problems among the US and UK soldiers in Afghanistan.
Kemp also questioned the extent to which we looked at other means if we want to be certain of killing terrorists and not civilians. Before 2009, you could shoot someone if you saw him on a bike talking on a radio; not so after 2009. Another identifiers could be someone digging and information from satellite intelligence. These identifiers could allow forces to attack before being shot at first.
Kemp said RoE raises the issue of whether the lives of civilians are more important than those of troops. Should avoiding killing of innocent civilians result in the deaths of soldiers? Which life has more value? Do civilians have a greater right to life? Kemp believes that soldiers should take some risk to protect lives of innocent civilians – but you can’t expect or require soldiers to do this. How long will a soldier follow you if you constantly put his life in danger? Not long. You can’t lose the confidence of your soldiers.
The colonel said that “rules are for the guidance of wise men and the obedience of fools.”
Kemp himself has disobeyed RoE because the circumstances changed, so long as he could have justified it afterwards if he felt the ROE were not appropriate to the situation.
RoE should be designed in such a way that they give the maximum freedom of action for the troops. Minimum rules are insufficient in dynamic changing battlefield situations.
In addition, he said, today soldiers are dealing with intense media and political attention.
Ahimeir asked the panel whether, how and how much outside groups, like human-rights advocates, influence the tactics and efforts of soldiers and their commanders.
Kemp said that the U.K. army generally does not receive the amount of scrutiny that the IDF gets. (He used Northern Ireland as an exception to that proposal.) He said the UK army “takes note” of the groups’ reports but those reports don’t influence the military’s actions.
In his broader remarks, Samia had spoken to the importance of ethical conduct among soldiers. Here, he said that a “healthy army” should not care about the reports from outside groups. “I have enough reasons internally” to keep his soldiers and society safe, he said. “I don’t need” reports from the outside groups, he said. He said that if soldiers commit crimes, they should be brought to trial. But if they make mistakes, discretion is important. “It’s not black and white.” And he said “the reality on earth is much richer than any imagination.” Commanders are allowed to make mistakes, as long as they are not crimes, he said.
Bar Yoshafat, the reserve combat soldier in the IDF, said these groups have a great deal of influence on the IDF. He said they publish their reports in English to generate pressure on the IDF. He said these reports “damage motivation” among soldiers. He said friends of his in the IDF were killed during Protective Edge because they were too concerned about the prospect of danger to civilians.
Following Nitsana Darshan-Leitner, former IDF Chief of Staff Lt. Gen. Benny Gantz shared his perspective from the point of view of an IDF commander.
He offered a perspective that combined strategy and morality, along with practical aspects of war in real time, where time is crucial.
First key points:
The nature of war has not changed, but the characteristics of war have changed – a lot. The battlefield, in the traditional sense, has completely disappeared. No longer are armies meeting on one plane and fighting it out.
New dimensions such as space and cyberwarfare focus on the civilian population as targets and human shields. Before, they were not part of the war campaign. They were used as bargaining chips, after the fact. Today, that has all changed.
At the end of the day, the challenges, uncertainties and fears of war are extremely demanding and challenging.
No longer do we have tough but simple wars. Today, it is much more complicated.
In the past, in every war that we were engaged, we were losing and then we won.
A dual moral dilemma that persists: On one hand, you want to avoid hurting the wrong people, and on the other hand, you want to protect your country and your soldiers to a reasonable level, given the role they put themselves in.
Whose responsibility is it during the campaign itself?
The IDF commanders – It is our responsibility to fulfill our mission in defending ourselves and innocents on the other side as well.
Try and go back to times where the laws of war meant to limit the bad guys. Currently those who don’t obey them really don’t care. The only ones who deal with the rules are the ones who care, and we will continue to abide about them.
We cannot risk legal naivete, and not to update the laws, regulations to current realities, but nor should we ignore statehood responsibilities. Hamas is practicing sovereignty – in all practical aspects – and we cannot ignore it now and in the future.
Let’s talk about the last two campaign – Gaza and Lebanon – as case studies.
Gaza – all the activities were started by the terrorists themselves. This was the same in Lebanon. The state of Israel through the IDF had to retaliate after these events started by terrorists.
Israel waits until the last moment to engage in warfare – Israel has zero interest in Gaza and Lebanon to exclude security from this area.
In both cases the enemies have operated within civilian society, both in Gaza and Lebanon. We are aware of the tight relationship between Hezbollah and the government of Lebanon, both politically and in intelligence. We cannot rely on the Lebanese state to be responsible for what happens. Hezbollah has turned villages of Lebanon to defend launching capabilities,
They have villages that have been turned into missile launching bases – their living rooms are missile rooms. I don’t have a missile launching room in my house. Realistically, how do you tell the difference? How precise can you truly be?
Don’t tell me it’s a kindergarten if I know it’s a missile room – don’t tell me it’s a mosque if it’s a rocket warehouse. I am not aware of one synagogue in Israel that is used to host terrorist meeting points, rocket, missiles, ammo, whatever. Instead of a swimming pool, there is a missile pool.
In Gaza, we used the knock on the roof tactic that gave warning before the building was destroyed. Morally, we choose to do this. There are cases when we know it’s such an important target but we don’t try to evacuate the civilians from there – like at a hospital.
In another case, the Golani brigade was being shot at from the hospital in Gaza. We pre-alerted people. In all cases, we continued to maintain humanitarian support in Lebanon and Gaza with medical aid and humanitarian support. We did this while taking risks.
So why did this campaign last for 7 weeks? We built a hospital in Erez Crossing where Palestinians, 50 a day, were treated. Hamas didn’t allow them to come – otherwise we would have treated many more.
I feel very proud that I am on the right side morally, not just strategically. We should keep it this way – not because it makes our life simpler but because it is reasonable.
Unfortunately, in both Gaza and Lebanon people have paid the price of the war. Next time, it will be worse – because Israel has to constantly grapple with the moral dilemma, but we need to protect our country.
Let’s imagine that a terrorist group kidnapped 10 people here – now what? Israel comes to rescue us – it can give up. Should it? No. As long as there is an alternative, we should stick with it. Of course, the counterterrorism unit, when it comes in, will do its best to differentiate between the terrorists and the hostages. We can’t exclude ourselves from this dilemma, but we must manage it.
In both Gaza and Lebanon, we investigate ourselves from the strategic and legal perspectives. More than 500 events have been reported – some of which were investigated, some of which caused Israeli soldiers to go to military court. We decided to investigate not because of international community pressure, but because we are interested in improving ourselves.
In sum, dealing with these aspects, both with updating our operational and legal tools, is important for us as more countries that respect human rights and international laws. It’s important for us to stay this way. The State of Israel is a state of law, The IDF is an organization that operates in accordance with international law.
The IDF ethical code states the following: “He will maintain his humanity even in combat. The soldier should not employ his weapons to hurt non-combatants, and should do all he can not to harm others.” This is taught from Day 1.
I suggest we avoid strategic and legal naivete, to use legal capabilities that will enable us to cope with the future realities as we see them.
Last but not least, I will share my painful experience of visiting 75 families in the last four months of service as Chief of Staff. They all understood what and why we did it.
95% of them realize that we activated our forces with the most caution that we could and managed this dilemma. It is our strategic responsibility to know that sometimes the weak side is not the right side.
We have to update the laws to enable us to not just be strong but to protect democracy, human rights and human values because the other side does not care about these things.