Lt. Col. Corn, law professor & former senior law of war adviser for U.S. army, addresses UN Human Rights Council on the report of the Gaza inquiry. Geneva, June 29, 2015.
Thank you, Mr. President. I am Geoffrey Corn, a Professor of Law and the U.S. Army’s former senior expert on the Law of Armed Conflict. I advised an independent JINSA-commissioned Task Force on the 2014 Gaza conflict.
I commend the Report’s recognition that all parties to armed conflict must implement and respect the Law of Armed Conflict. While objective critiques of military operations can contribute substantially to the understanding, implementation, and evolution of theLaw of Armed Conflict, findings and recommendations must derive from credible information, legal interpretation, and operational expertise. Otherwise, any critique risks distorting the essential balance between mitigating the suffering of armed conflict and the dictates of military necessity – one that has defined the law since its inception.
I believe the Report lacks this foundation. First, it treats questionable interpretations of this law as conclusive, and fails to apply the principle of distinction comprehensively. Specifically, it omits assessment of how an enemy’s systemic failure to distinguish himself from civilians, and deliberate exploitation of the perception of civilian status, impacts the reasonableness of attack judgments.
Second, the Report reflects common but invalid tendencies toward “effects based” condemnations of targeting judgments. Combat effects are relevant when considering compliance with the Law of Armed Conflict, but cannot substitute for recreating the context of attack decisions to determine whether they were reasonable. Limited access to operational information may make this process difficult, or even impossible, but does not justify substituting effects as the touchstone of legality.
Third, the Report is not based on credible military operational expertise. This is exacerbated by the tactical context of close combat in an urban environment against an enemy deliberately refusing to comply with its distinction obligation. The Report’s judgments regarding military advantage are attenuated from the true nature of military operations, therefore undermining the credibility of ultimate legality assessments.
Thank you, Mr. President.
Michael Lynk, the UN Human Rights Council’s monitor charged with investigating “Israel’s violations of the bases and principles of international law,” together with Tlaleng Mofokeng,