GENEVA, March 18, 2019 — In testimony at the United Nations, Lieutenant Colonel Geoffrey S. Corn (ret.) rejected a report presented by the UN Human Rights Council which accuses Israeli soldiers of alleged “war crimes” and “crimes against humanity” on the Gaza border, and calls for their arrest.

See full remarks below. For quotes from other panelists, click here

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I want to echo the thanks to UN Watch and all of you this morning for taking your time this morning to come and listen to this presentation. I asked to go last specifically because the theme of my comments really relates to how to assess the credibility of an opinion.

A report from a Commission of Inquiry is really nothing more than an opinion and trial lawyers learn very early that the value of an opinion is directly contingent on the quality of its foundation. And I think what we have seen thus far has started to demonstrate that the opinions which are reflected in this report are built on a fundamentally flawed foundation, so I want to talk about the flaws in that foundation.

And I think those flaws fall into three general categories: there’s an overall strategic flaw in the foundation and then there are flaws in the legal foundation and the operational foundation, and I’ll talk about each of them briefly.

Let’s start with the overall strategic issue. Whether or not the march of return qualifies as a declaration of war from a military operational perspective is really not that important, what’s important from a military operational perspective, as Colonel Kemp I think would agree is the situation that the forces confront at that moment in the operation, what their mission is and what the threat that they confront is. And that threat can manifest itself in a number of different ways and it may be motivated by a broader objective, but fundamentally what we have to look at is what did the forces on the ground face and what was their mission?

The Commission of Inquiry’s report is based on a fundamental premise that what the Israeli forces, security forces, confronted at that border was a civilian protest. And that fundamental foundation permeates all of the findings of the report. By characterizing or framing the event as a predominantly civilian protest, the COI distorts the reality of what was confronted.

The videos you just saw are an objective manifestation of that distortion, and if you distort the true nature of the security threat, then obviously it’s going to lead to second and third order distortions of what the forces confronted and why they were compelled to do what they needed to do.

What happened at that border I think, most rational observers would agree, was not an overall civilian protest, but the use of a civilian protest as a tactic in an ongoing armed conflict between Israel and Hamas and other organized armed groups.

My comments are developed in much more depth in a report that was just published by an organization I am affiliated with JINSA, the Jewish Institute of National Security in America. And if you just google “JINSA Hybrid War Task Force” you’ll find this report that’s endorsed by about 15 retired senior US military general officers and admirals.

That report recognizes that what happened at the Gaza border wasn’t just a civilian protest, it was the latest evolution of tactics used by a creative and adaptive enemy that seeks to accomplish two fundamental goals through those tactics.

One is to nullify the superior combat power of the Israeli Defense Forces. This is a consistent tactic by illicit organized armed groups in modern conflict. They know that they cannot match their superior opponents toe to toe. So what they’re constantly doing is seeking out tactics that will nullify the military advantages of their opponents, and I think some people would look at the images you just saw of putting bombs on balloons and kind of chuckle a little bit and say “well look at how primitive that is”.

But the irony is that what Hamas has figured out is that one of the best ways to nullify the advanced capabilities of modern militaries like the IDF is to use primitive tactics. Think of tunnel warfare, tunnel warfare is a primitive tactic that was used to completely nullify the advanced reconnaissance, surveillance, and target acquisition capabilities of the IDF. And it proved pretty effective.

And so what Hamas has been doing, is they’re constantly adapting, so when the Israeli military comes up with a capability that nullifies the newest tactic they look for something new. What was this? This new tactic was to exploit these civilian protests to gain cover for their belligerent operatives in order to nullify the Israelis’ capability and advance advantages in actual combat. That’s the first objective they achieve.

And the second objective which was referenced by Colonel Kemp is to use these confrontations as a supporting effort to achieve their strategic informational objective, and that strategic informational objective is to delegitimize Israel in the eyes of the world and to exploit the tendency of modern observers to rely on images as the principal touchstone of respect for law in the conduct of security and military operations.

Because it’s easy, it’s what I call effects-based condemnation. You just look at the consequences of combat and it’s an easy way to say who’s doing the right thing and who’s doing the wrong thing. Unfortunately, it’s distorted, and it’s frequently inaccurate, because in many cases, as Colonel Kemp noted, the actual infliction of civilian casualties is caused by the abuse of the civilian population by the non-state or illicit enemy.

When I was involved in our Gaza task force back in 2014, one of the generals that were involved in those presentations, General Mike Jones, a former, retired two-star general from the US Army, he made an observation that really hit this issue on the head. He said, “when I was a young officer in a tank unit, I was taught that information was a supporting effort to combat operations, what I learned about Hamas is it’s reversed. For Hamas, combat is a supporting effort to their information campaign”.

And what he meant by that was they know they can’t win in combat against the IDF, they don’t care, because what they’re trying to achieve is one of two objectives. One; inflict casualties on the Israeli forces and the Israeli civilian population, because they know how sensitive Israel is to those casualties, and two; compel Israel to engage in combat operations that result in legally permissible civilian casualties that the world will not understand or tolerate in order to use that to delegitimize Israel.

The fact that we are here today, presenting these critiques of this report from this Commission of Inquiry is all the evidence you need to demonstrate how effective Hamas is at achieving this strategic objective. The fact that this report is being issued, condemning Israel for conducting these operations proves that Hamas is getting out of this exactly what it sought to achieve. So my overall view of this report is not to simply say that it’s invalid because it rests on a flawed foundation, my overall lament is that it reflects a lost opportunity.

If this report had been prepared credibly, if it had looked at this situation through the realistic perspective of what it actually was, then the Commission of Inquiry would have had an opportunity to delve into some very important issues that are completely omitted by its overall factual distortion. For example, the report could have condemned the use of civilians as human shields.

When you read the report, and of course we’re waiting for the full report, but all indications indicate that that’s completely omitted from the condemnation and that’s tragic, because by omitting the exploitation of the Palestinian civilian population by Hamas, what this report is going to do is incentivize those type of tactics in the future.

When if we’re really concerned about mitigating the risk to civilians in contemporary armed conflicts, we should be condemning those activities as vigorously and aggressively as possible. The report could have done a more credible job of analyzing how a military, that’s in a position of conducting a security operation that blends aspects of conflict and policing should best balance the execution of those operations within those two paradigms.

Now interestingly, the report begins with what seems to be a credible legal foundation. It acknowledges, just as the Israeli High Court of Justice did, that what was happening on the border involved a combination of armed conflict and law enforcement activities. It acknowledges that within the context of overall armed conflict, an ongoing armed conflict, there will be aspects of the operation that are controlled by a law enforcement legal framework. And I think that’s a very positive acknowledgment by the Commission of Inquiry and I’m glad they did that.

Unfortunately what they do next is a distortion, because what they do next is they say that because it was a predominantly law enforcement scenario, only law enforcement authority could have been permissibly used. That, by the way, is how they get to the flawed legal explanation that explains away all the data that you just presented.

I’ll read for you the findings of the preliminary report. The Commission found that “at least 29 of those killed at the demonstration sites were members of Palestinian organized armed groups and mentions another 18 as inconclusive cases, yet since the law enforcement paradigm is the relevant framework, this cannot justify targeting them unless they were, at the time targeted, directly participating in hostilities or posed an imminent threat to life”.

That is a fundamental distortion of the legal authority to target your enemy in an ongoing armed conflict. In an ongoing armed conflict, if I make a determination that you are a member of the enemy organized armed group, as the report seems to acknowledge, I’m not required to wait for you to present an imminent threat to me.

The fact that you are a member of that group in that conflict alone provides international legal authority to engage in hostility against you. Now, by the way, I’m not saying that that’s what the authority was for IDF forces. My understanding, as best we can tell from publicly available information is that even with that recognition, the IDF was very restrictive in its ROE related to when it could target these individuals.

But the suggestion that as a matter of law because there is a law enforcement component to the security operations it somehow nullifies the conduct of hostilities component is fundamentally flawed and results in outcomes in the report’s findings that are simply not credible. But again, it’s the result of the framing of the report in a way that prioritizes this civilian nature of the operation and that’s the other flaw in the foundation, it’s operationally flawed.

The report fails to adequately account for the true nature of the security threat that the IDF faced. So let me go a little bit deeper on what I think is the legal flaw or the flaws in the legal foundation upon which this report rests. As I said, the report acknowledges that this was a hybrid application of what we might call an armed conflict legal authority and a law enforcement legal authority. That’s not remarkable.

There are many aspects of armed conflicts where the forces are going to be operating under a law enforcement or constabulary type framework, that happens in all sorts of military operations and predominantly arises when the armed forces are conducting security operations against civilians. Especially, civilian protesters.

But what was different here, is that these civilians were being used as cover for belligerent operatives of organized armed groups engaged in hostilities against the IDF forces. And that creates a much more complex scenario, that complex scenario means that the commanders on the ground have the difficult responsibility of identifying at what point the threat moves out of that law enforcement framework into more of a conduct of hostilities framework.

Interestingly, this reality and this complexity was not recognized by the Commission of Inquiry but it was recognized by the Israeli High Court of Justice when it issued its opinion related to the rules of engagement that the IDF were using in this operation.

I’ll read from the opinion: “Considering the fact that armed conflict occasionally involves various operational scenarios, it cannot be said that both of the paradigms are relevant at all times and in order to know which paradigm is applicable, it is necessary to examine the circumstances behind the concrete exercise of force”.

So just think about that for a minute, what the Israeli High Court of Justice acknowledged is that when you’re analyzing the legality of a use of force you have to drill down into the actual situation the commander confronted and you have to determine whether that use of force was being exercised in a law enforcement framework against a true civilian or were you using it against a member of an enemy organized armed group that was engaged in belligerent activity under the cover of the civilian protest, because that’s going to dictate the permissibility and the legality of that use of force.

Of course, the report of inquiry just brushes over all of that and that quote that I read about those 29 belligerent operatives is an illustration of why that is so dangerously flawed. Because what it essentially does is it says if you’re a member of an organized armed group and you want to nullify your opponent’s ability to attack you, what’s the best tactic? Get civilians to surround you, create what looks like a law enforcement disturbance and then, you’ve nullified their legal authority under the conduct of hostilities rules, to use force against you and you have to be treated like any other civilian involved in a peaceful protest which operationally doesn’t really make much sense.

So the report fails to address the legal authority to respond to enemy belligerent operatives, members of organized armed groups that are exploiting the civilian protest. It fails to acknowledge the authority to use force in the context of a civilian protest against clearly identified members of an enemy armed group or against other civilians who are engaging in direct participation in hostilities, a lost opportunity. That would have been a useful point of inquiry but it’s completely omitted from the report. It fails to condemn the pervasive use of human shields by an enemy armed group that exacerbates the risk to the civilian population when the other side is taking measures to mitigate that risk, again, another lost opportunity. And even if we strip all of that away, even if we accept the premise that the Commission of Inquiry’s report is based on that this was a purely law enforcement activity, there is still a lost opportunity and that lost opportunity is a much more deliberate and rational assessment of what qualifies as an imminent threat in this type of situation.

The report bases its findings on a per se rule that an imminent threat cannot exist until the hostile actor is in close proximity to the person being protected, either the soldier or the civilian that the soldier is protecting. And I think that is where the real operational flaw is exposed, because as Colonel Kemp indicated, what qualifies as an imminent threat when you’re trying to prevent a breach of a barrier that will result in an influx of hundreds, if not thousands of protesters is a very complicated question.

It’s too simplistic to say a threat can never be imminent until the barrier is breached. Until there’s a mass influx, although interestingly even the IDF SOPs indicated that for their forces, they should not assume that any breach of the fence triggered an imminent threat, they were even more restrictive.

I would assume that that meant that there had to be some level of influx as a result of the breach. When the Israeli high court of justice issued its opinion, it cited to US Army after-action reviews from operations in Haiti. And in those operations, the US military rules of engagement indicated that in a similar situation you could treat a breach of the barrier as a manifestation of an imminent threat.

So somewhere between those two extremes is operational reality. And the report omitted the opportunity, or lost the opportunity, to do a better assessment of what qualifies as an imminent threat, even in the context of law enforcement-based security operations when you’re facing a mass influx of angry protesters that are intermingled with belligerent operatives.

My view is that all you have to do is really contemplate how difficult it would have been for IDF forces to stem that breach and to restore the security fence without using high levels of force to even reach the point of breach, much less control the influx of hostile actors into Israeli territory to understand that it’s not irrational to treat the breach of the fence as the actual point of imminence that would justify an escalation of force.

The report also, I think, failed to account adequately for what qualifies as a legitimate escalation continuum of force. And, I was talking to Colonel Kemp about this as we walked over. When we were soldiers we were taught that at the point that you have to reach the level of using lethal force you use it for a lethal effect.

I think it’s remarkable that even at that point the IDF rules of engagement ostensibly required IDF personnel to use lethal force which is a rifle to produce a non-lethal result, a wounding shot. I can tell you that in 22 years of my military service, we were never given that rule of engagement we were taught that once you get to that point you use it for lethal effect. So even at that point the IDF was trying to mitigate the risk of lethal effects even when employing potentially lethal force.

The other problem is the report assumes ipso facto that every death was caused by an intentional act to kill, when in fact some of those deaths may have been collateral or incidental consequences of an otherwise lawful use of force.

My ultimate outcome, or my ultimate criticism of the report, is that it creates a perversion, it incentivizes illicit organized armed groups to continue to develop and implement civilian risk exploitation tactics because it means that every time a civilian is injured or killed in the conduct of their activities the blame will fall at the feet of the force that’s actually trying to implement obligations under international law.

It provides no reward for the side in the conflict that’s actually taking measures to mitigate civilian risk and everybody ought to stop for a moment and contemplate how dangerous that is. At some point, if you are constantly endeavoring to implement measures to mitigate civilian risk but all that ever happens is you’re automatically condemned for every civilian casualty it may produce a perverse disincentive to do that in the future.

We haven’t seen that yet, I hope that doesn’t happen but when military forces and security forces are trying in good faith to mitigate risks to civilians, that should be acknowledged and encouraged, not overlooked and dismissed.

So for me what is remarkable about this is that the report focuses on all the things that the IDF did and condemns them for doing them, but I think if you read our report that we just wrote for JINSA that most military professionals would look at a situation like this and be more surprised, not by what the IDF did, but what the IDF didn’t do under the circumstances. Thank you.

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