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The Lawfare Podcast
Lawfare Daily: Lessons for Civilian Harm Mitigation in Urban Warfare, from Gaza and Beyond
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- [00:00]
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Chris Maier (Former Assistant Secretary of Defense for Special Operations)
Did I talk too much?
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Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
Can't I just let it go?
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Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
I am not going to argue that everything that happened in Gaza was justified and legal. You cannot fight a campaign of that scale, density and duration without having errors. And my biggest criticism of the IDF was the lack of speed and transparency in investigations and discipline. For Ms. Kondo, it's the Lawfare podcast.
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Scott R. Andersen (Senior Editor, Lawfare)
I'm Senior Editor Scott R. Andersen. Today we're bringing you the audio for a panel I moderated this past November at a conference on Precision lethality and civilian harm mitigation hosted by the center for Ethics and the Rule of Law at the University of Pennsylvania. Joining me on the panel were Professor Claire Finkelstein, the Center's founder and director Christopher Mayer, a former Assistant Secretary of Defense for Special Operations and low intensity conflict in The Biden administration Dr. Larry Lewis, a principal research scientist at CNA and expert in civilian harm mitigation, and Professor Jeffrey Korn of Texas Tech University School of Law, an expert in the Law Farm conflict. With more than two decades of experience as an Army Judge Advocate General, I.
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Claire Finkelstein (Professor, Lawfare Panelist)
Wonder whether or not things like the principle of distinction actually continues to hold in future warfare. Because when we talk about a battlefield and we think about civilians being off the battlefield and combatants being on the battlefield, where is the battlefield? There's no more actual limits to the battlefield.
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Scott R. Andersen (Senior Editor, Lawfare)
Together we discussed what lessons can be learned about the future of urban warfare and civilian harm mitigation from Gaza and other recent cases.
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Moderator (Likely a Lawfare Host or Panel Moderator)
Jeff, I want to start with you for this conversation because I think given that we are predominantly American audience and particularly predominantly American panel, entirely American panel, it's worth starting with the American experience that has been a pretty formative one over the past few years. A reckoning of sorts with this question of civilian harm and strategy for mitigating it. You were really one of the first people to put forward a real proposal to have a defined strategy for civilian harm mitigation and a set of policies particularly oriented towards commanders in the field, Particularly in a piece in 2019, is the kind of place I think of this kind of really coalescing in your work. Talk to us about what led you to this suggestion, this idea, the operational needs and other needs you saw that you thought this might address.
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Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
Well, first off, thank you for having me. I'm honored to be up here with these distinguished panelists and grateful for the invitation. I wouldn't overstate the proposal in the article. As a broad strategic plan, my focus was on the process of decision making, attack decision making by commanders. I was at a conference. Some of you, this will resonate with some of you that we were talking, a group like we were in today, and the topic came up of reverberating effects. Should a commander have to consider reverberating effects in a proportionality analysis? And the, the, the, the sides coalesce very quickly. You had the former military legal advisors saying, no, that's too much to ask of a commander. It was predominantly the ICRC representatives who were saying, no, we, we're advocating this. And it struck me that we were, we were arguing about the wrong issue. Everybody agreed that measures to mitigate civilian risk, if they were feasible, and to consider the impact on civilians is something that was in the operational and strategic interest of the commander. What we couldn't agree on is what the commander should have to consider in the decision making process. I began my career as a tactical intelligence officer. My experience with my commanders was a voracious appetite for more. They always wanted more information, they always wanted more clarity, and you could never provide enough. And it struck me that we're talking about this critically important issue, civilian harm mitigation, the consideration of effects on civilians from conducting combat operations. But we have not created an expert for the commander to rely on to inform him or her on these considerations. So for me, the issue wasn't reverberating effects. If I can give the commander information that can enable the commander to foresee an effect, then the commander is going to want to know that and factor it into the decision making process. And that led to the suggestion that it was time to consider the development of a staff expert on civilian harm mitigation, because that's farmed out to all the other members of the staff. And I remember talking to Eric Jensen, a friend of mine, saying, you know, we've, we've, we've all, all the jags have had the experience where the commander in the battle staff says, that's your job, jag. I didn't take a class in law on civilian harm mitigation, casualty modeling the effects of loss of water or a bridge or whatever it may be. And it just hit me that we are defying our own methodology. The commander relies on staff experts for all other battlefield operating systems. Fire support, air support, engineering, communications, intelligence. If this is such an important interest that everybody can agree upon, including commanders who want to be confident that they're giving their subordinates moral clarity in the conduct of military operations, where is that expert? So that was the proposal, which I thought would be received as kind of sacrilege, like you're suggesting creating a new staff officer. And then a couple of years later, Dan Stagal emailed me, said, you're going to be surprised at this initiative that's ongoing. That's where it came from. I think that we have to stop arguing over should a commander consider this effect or not consider this effect. We should all agree it's in the operational and strategic interest of the command to implement feasible measures to mitigate civilian risk. The key word being feasible, which I think we overlook very frequently, not compromising military advantage. But the more information the commander has on the civilian situation and being able to model the, what we've called reverberating or knock on effects of combat operations, the more rational the decision making is going to be on whether or not to employ combat power in any given situation.
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Moderator (Likely a Lawfare Host or Panel Moderator)
So, Chris, let me come to you to fast forward a few years because you, during your time as Assistant Secretary, were there during the period where you saw some of these initial ideas from Jeff and from others get operationalized, not just within the executive branch, but also by Congress with companion legislation. Talk to us about that effort which you played such a central role in the approach, the strategy, where it manifested. And then I also wanted to know, to the extent you can share with us the state of it now in the hands of a different administration that has a different set of priorities.
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Chris Maier (Former Assistant Secretary of Defense for Special Operations)
Yeah. So first off, thanks to Cyril and Upenn for hosting. It's nice to come this time not in a government role. So I don't have talking points that were provided to me. So these are my remarks. So I think that's a perfect setup, what Jeff said. And one of the smartest things I did as the assistant secretary was hired Dan Stagal to lead this effort. And, you know, Dan came over to do other things, and we had this problem of having to do this thing that the secretary told us we were going to do, but. And I couldn't figure out who could lead it. And then Dan walked in on his other job like, you're the guy. Little did I know that, yeah, sometimes it's be better to be lucky than good. But, you know, really the whole impetus as we looked at the Civilian Harm Mitigation Response Action Plan, which was initially started in 2022, was how do we provide the commander more tools? There's lots of misnomers out there that it was about constraining or somehow we were providing, you know, additional requirements below the floor of what was legally required. I hope that none of that was true. And, you know, really the origins of it were, yes, some of the previous efforts that were kind of up and down with, with Secretary Mattis, General Dunford, when he was the chairman, that would kind of, you know, go hot and cold. And, you know, when the original direction from the Secretary came down, it was on the heels of the Afghanistan withdrawal, the Kabul strike, which everybody here knows, and increasingly attention from the New York Times. But I never can give the New York Times all the credit. There were other sources that were reporting about previous incidents that weren't as well documented and as our friends from Civic pointed out earlier, in some cases were better known outside of government than they were in government. So clearly, I think Secretary Austin at the time looked at the body of just things out there, information and such, and thought, you know, this is something we need to look at more closely. And we often talk about, in particular in these forums about the moral imperative. It was really the strategic prioritization that drove us because we looked at a potential changing character of warfare that. That is much clearer now than maybe it was in 2021, 2022. But when we were talking about potentially a war with the People's Republic of China, that would have exceeded anybody's experience with just the scale, the lethality and the destruction. And we realized that we were spending a lot of time figuring out how to fight that war as war fighters, but not a lot of time figuring out how we were going to account for a civilian environment that was going to be there. No modern war had been fought in anybody's recollection that didn't have civilians at least adjacent, if not central to it. And if we needed a better example, when we started to work on this. Russia invaded Ukraine for the second time. And we saw how poorly Russia performed, especially vis a vis civilians, and how in some cases, their international standing, which was already low, went even lower because of their inability to account for civilians. So there was a whole body of things that said this was something we needed to look at as an organization, to be more precise, more lethal as a. As a department. And that became the charge that was given to my team, with a lot of other people helping along the way. To your question of where it stands, I think that's an open question right now, clearly, and this has been well documented with the reductions in certain aspects of the Department of Defense, now Department of War, it's still the Department of Defense. Legally, there's been a reduction in a lot of places. The civilian harm and mitigation response work has not escaped that. But I think there is still a number of experts left from the ecosystem we attempted to build that are actually not in the Pentagon. They're out with commanders helping to advise and still keeping alive some of the aspects of what was intended to really give those tools that Jeff and I'm sure others will talk about was the intent behind this. And the last thing I'll say here is there's a significant group of members of our elected body, of both the House and the Senate, that continue to be supportive. And I will go out on a limb, and it's not much of a limb to say there's a lot that don't go out publicly, but are very supportive of the effort. And I think that's why you continue to see a bulwark in some respects from the legislative body to keep this effort going. So that hearts me, even if there is a significant reduction in numbers and capacity of this entity and enterprise, really across the Department of Defense.
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Moderator (Likely a Lawfare Host or Panel Moderator)
So for the American perspective, we saw a major policy initiative emerge from, to some extent, a reckoning of recent conflicts in the Middle east, with an eye towards looking towards future conflicts, potentially with China and other major power adversaries. But the forum where we've really seen a lot of these issues and challenges come to the fore in unprecedented ways, or at least with an unprecedented density and frequency and intensity of challenges, is, of course, Gaza, a dense, complicated, urban combat environment, which we've seen the Israeli government wrestle with in a variety of ways, how to approach combat operations. And if I want to come back to you on that, a case study that really is underlying this entire conference and certainly our discussion today, you are in the rare position of having been one of the few American legal experts that has spent time on the ground in Gaza with Israeli military commanders. Talk to us about what you observed there, the things you saw that were good, that may be overlooked. The good processes also, any concerns or criticism you might have, points of challenge that they were wrestling with, or there may have been deficiencies. What was your takeaway from that experience?
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Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
Boy, there was a lot of emotion. I remember going in, meeting with the brigade, having the briefing in the Brigade tactical operations center right outside the border of Gaza, then loading up into the humvees and going into Gaza. So I just want to highlight a few points that really stuck out for me. First off was how close it was to home, right? I mean literally you left your hotel in Tel Aviv, you got in a van, and an hour and a half later you were on a, you were on the fiba, the forward edge of the battle area with the sound of conflict, right over the hill. And as you're driving down, you're seeing the images of hostages and you're going past the location where there was a destructive massacre. I mean it. I remember saying to an Israeli soldier, you know, I don't think there are many Americans who have as close a sense of you must have as what you're fighting for. I mean, it's right there, it's a home game. So that was one consequence. The other thing for me, and I was there twice with two groups of generals, one American retired generals, one more of an international group, and maybe again it was the old intelligence officer in me. I wanted to know about the enemy. I felt like I knew about the scale of the operation, the level of destruction, but I wanted to know order of battle, what was the enemy order of battle, what was the initial maneuver, order of battle. And when I started getting that information, I almost fell out of my chair. 35 to 40,000 enemy belligerent fighters organized into 28 to 30 battalions with regional responsibility prepared positions. The IDF expected a subterranean fight. They didn't expect a three level fight above the ground, on the ground, below the ground, because every building had been prepared as a pre position fighting position with ammunition and weapons stockpiles so that fighters could move from one building to another with the perception of being a civilian and then go to their pre position position, maneuver through the buildings. And then I asked what was the initial maneuver into Gaza? Five divisions. So here I am, an American and I'm thinking, okay, division. Maybe a division in Israel is like a brigade in the United States. How big is each division? About 20,000 troops, 100,000 combat combined arms maneuver forces in the initial campaign into Gaza, which, if you think about it, if you're fighting 35,000 to 40,000 enemy in prepared defensive positions, is actually not a great ratio. I think the doctrinal ratio is supposed to be 5 to 1 instead of 3 to 1. I'm sharing this because what struck me about it was the lack of understanding of the true scale of this fight. At the end of our first meeting, I remember we were in the Prime Minister's conference room with Ron Dermer, and it was Admiral Rogers and General Rodriguez and a couple of other retired four stars. And Dermer went through it, and he said, what recommendations do you have? Admiral Rogers was all about information. You're doing a bad job with the information campaign. And came to me and I said, stop talking about fighting terrorists. When people hear fighting terrorists, they have an image of a complete mismatch. You're fighting an army that engages in terrorism. And I think when we understand the nature of the enemy situation, and this is something I mentioned earlier today, it helps put in context the scale of the campaign, the scale of the operation. The other piece, I think that I learned there was that one of the criticisms, actually a friend of mine who is a retired JAG said, why do they have to go so hard so fast? Why can't they be more surgical? Because for the idf, it just wasn't Gaza. That was like looking at Gaza through a straw. They had other fronts they were worried about. They had the much more perceived dangerous front in the north with Hezbollah. And if you're committing five divisions to one theater, you're losing the flexibility, the maneuver flexibility to respond to threats in other theaters. So there was a strategic military imperative to accomplish the goal of rendering Hamas combat ineffective as rapidly as they could. There is a lot to this story, I think, if you don't understand military strategy, enemy situation, the consequence of an improved fighting space that's been developed over 15 years, it's hard to completely understand. Now, to your question specifically, I get into Gaza. We drive along the Philadelphia corridor. We get to the Swedish village at the end of the corridor. And honestly, my. What I said to the brigade commander was, I feel like this is what it must have been like driving through Berlin at the end of World War II. Like, the level of destruction was shocking. Every building had evidence of destruction. There was nothing was untouched. But then you get to see the videos that they captured from Hamas, where every home entry had a backup, a car, backup, camera. And these are not tripwire IEDs. These are command detonated IEDs. I watched videos of IDF fighting vehicles opening. And the Hamas operator is counting the number of soldiers coming out of the vehicle because they know the eighth soldier is the commander. And they wait until the commander gets to the threshold of the building and then it explodes. Every building was booby trapped. Now, how do you account for that when you're trying to assess the legitimacy or the necessity of the level of destruction? Now, I had a friend say to me the other day, or you say, everything that happened in Gaza is proportional. I said, no, I don't. I say there's a lot I don't know. What I can say is that I reject the argument that you can look at the consequences of combat in Gaza and make a conclusion that everything is disproportionate. For me, that's like saying one plus I don't know equals ten. The one is the attack, the ten is the level of destruction, the I don't know, or all of those factors that go into the tactical and operational decision making. And I'll leave you with one other statistic that blew me away. We were getting the briefing from the brigade commander, and this is after a significant drawdown of forces in Gaza because they've already shifted to the north and they put up the slide with vehicle damage. 2700 vehicles in the division were damaged. And I said, was that like accidents? No. Every One of those 2700 suffered combat damage. Combat. Now, 2700 vehicles suffering combat damage. You're not just fighting a terrorist with a Molotov cocktail. So. So what I would say is I am not going to argue that everything that happened in Gaza was justified and legal. You cannot fight a campaign of that scale, density and duration without having errors. And my biggest criticism of the IDF was the lack of speed and transparency in investigations and discipline for misconduct, which is a very hard thing to do. Anybody who's been a JAG pursuing criminal charges against a service member who's volunteered or sent to combat by their nation, that's not an easy thing to do, but it has to be done. And I think that the IDF has a reckoning at some point. Why we haven't learned more. You know, we were told there are 138 cases under investigation. We're told the same thing six months later. Where are they? What's happening? There has to be accountability for errors. But I think on the grand scale, before we jump to conclusions on legitimacy, compliance with the law, morality, and the necessity of destruction, you have to have the total situation. You have to recreate as best you can the situation that the commanders confronted, and you can't do aggregate analysis. You can't say, look at all the destruction. It must be disproportionate. It's an attack by attack decision. And a lot of times when we're critiquing or reviewing, we have to come to terms with the reality that we might be left with suspicion, but uncertainty. We accept that. In any other area of the law, in criminal law, we accept it. We're suspicious someone committed a crime. We don't have sufficient evidence. We can't go to trial. We live with that. But for some reason, when we're talking about warfare, we want absolute conclusions. And if that's the standard we create, if Gaza becomes the model for the future, you are just incentivizing the worst conduct by the enemies we're going to confront in the future to exploit that uncertainty and turn it into condemnation.
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Moderator (Likely a Lawfare Host or Panel Moderator)
So there is no doubt the complexities and immense challenges, in many ways unprecedented again at scale, if not necessarily of type, that Israeli forces have faced in Gaza. But at the same time, we're in a difficult position where people outside U.S. policymakers, other people, do have to make assessments because they have to make policy decisions of real time on how to engage in this. Larry, you've advised U.S. policymakers and foreign policymakers, foreign combatant commanders, about how to engage and address these issues. And you spend a fair amount of time looking about what's happening in Gaza. Where did you see questions, areas of concerns? How does that vibe with the unique challenges Israeli forces were undoubtedly facing? And how do you reconcile those two things and the difficult tension that really, Jeff, has illustrated for us? Sure.
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Larry Lewis (Principal Research Scientist, CNA)
Well, by the way, it's a pleasure to be here. And thank you, Jeff, for highlighting the complexity and difficult challenges that Gaza faces. I think that is understanding the context is absolutely critical as a starting point. So a little bit of background. My organization, myself, we often are sent over to, to look at US Operations, but also partner operations to understand what's happening and understand, okay, civilian harm is an issue. Why is it an issue? Are there things that can be done? And that is an approach where we go and we listen. The first thing we do is listen. I will say there has never been a case where we've gone over and said there's nothing to do. Actually, one example, I remember we working with General Votel, who I don't think he's here today, but we had been working with him and his unit for many years. But we were asked to go back and look at what they were doing in Afghanistan. They said, look, we've been doing this for a long time, we've really honed this. And his staff said, you're not going to find anything. We are so good. We have so many drones, you know, we're great, right? And so we did, we did a comprehensive assessment, went to all the different locations they were operating in, looked at all the operational data and then finally had the outbreak. And I said, you guys really are doing a great job. So here's three things that more that you can do. So I mean I think the lesson here is that, you know, we always want to be a learning and trying to find more. So for Gaza. So I haven't been Gaza. So when I think about this question, what I think about is, hey, what would I want to talk about with idf? So like let's say I go to the IDF and we talk about the operation Gaza, what are things that I would want to want to talk about? First of all, the context, right? What is the operational context? Let's talk about the design of the campaign, let's talk about the threat, let's talk about the method of operations, so that's important. And then talk about operational data as much as we can. So given all the things that we hear about, there are a few things that stick out to me that I would want to bring up. One is that we hear a lot about IDF precautionary measures. And those precautionary measures tend to be warnings, roof knocks and leaflets. And so it's always good to use precautionary measures. At the same time, what we've learned in the US is that we have applied precautionary measures and not evaluated their effectiveness. And so there have been cases in our operations where we will be doing X. And, and we're saying, okay, this is good, right? And then later on we did analysis and we're like, oh my gosh, like this actually doesn't help. And so we assessed and we found other precautionary measures that actually did were effective. So I would want to have a discussion about, okay, these are precautionary measures you talk about, okay, have you done an assessment of these? How effective do you think they are? And have you thought about others? Are there others that you're just not talking about, right? Are there others that are possible? So that would be one thing I would want to talk about. In the initial part of the campaign, there was a lot of press about the use of widespread use of 2,000 pound bombs. And I don't want to be. I'm not one of these people that says big bombs are always bad. There was one case I remember in Afghanistan where there were people that were getting nervous about using large munitions. And there was this one case where it was the absolute right thing to do. There was actually a discussion in the staff, maybe we should use a 500 pound bomb instead of a 2000 pound bomb. It turned out no, actually the best thing was to use the 2,000 pound bomb because there were cases where we would drop a 500 pound bomb. It wasn't effective. And then you have people move into the area, first responders, and you have a reattack and you've just killed civilians. Right. So we need to be thoughtful about the size and the type of ordinance. But I would want to discuss how are these decision made? What were the effects you were trying to achieve and was that the best way to do it? The third is, is lessons. I mean this whole forum is about civilian harm mitigation and civilian harm mitigation is ultimately a lessons learned enterprise. So I would really want to talk about. Okay, what was the lessons learned process that you used? One thing we talked about this morning was the Gaza Health Ministry has numbers on civilian harm. I would want to say, do you have numbers on civilian harm? Because ultimately one of the lessons we learned very early. You know, we have a lot of talk about Afghanistan and ISAF, but even before that in 2004 in Iraq we had a rash of checkpoint killings and we started doing basically tracking to understand what was going on and to find corrective measures. Right. So the tracking process is really helpful. And so I'd like to talk about that. And also I think related to Jeff's point about investigations, one thing that I've noted about the investigations that I've been able to find is that they tend to be focused on a very specific incident. And I don't see kind of this longitudinal learning from one to another. And again from the lessons learned process, what we found is to really be truly effective, we need to be learning, you know, not from just one incident, but, but finding the patterns. Right. And finding better ways to, to find creative ways to mitigate civilian harm by, and also be effective. So those are things I haven't seen. That doesn't mean I haven't. They don't exist. But those are things that I would want to talk to if, if I were there.
- [31:33]
Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
Could I quickly.
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Moderator (Likely a Lawfare Host or Panel Moderator)
Two finger.
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Larry Lewis (Principal Research Scientist, CNA)
Yeah, please.
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Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
Two, two aspects of their, their process that go directly to your point, which I didn't know anything about either. They, I forget the name of it. They had, they've created after the Turkle Commission, a high level investigative body that the, the chief of staff or the, or the Minister of Defense will direct certain incidents. So the World Food Kitchen, that's the group that brought the retired commodore from Australia and gave them the full briefing of all of their findings. And, and he came back to Australia and said he's still upset about what happened, but he's very comfortable with the quality of the investigation. The other thing that I was surprised by was in Southern Command headquarters they created a civilian harm mitigation cell that their sole function was to try and figure out creative ways to mitigate civilian risk. They're the ones who came up with the grid system for Gaza where every grid had a number and they could notify the civilians to move from one area to the other. A lot of the, the process, there was a learning process on the go, but there was also, I think, failures in communication. For example, there was a common narrative that you were telling people to go to a safe area and then there would be an attack in that area. And I questioned them about that. I said, well, we've never said it's a safe area. There are no safe zones. You have to have an agreement with the enemy to have a truly safety zone. These are safer areas. It's not being communicated effectively. So I was surprised that they were actually trying to implement some of these things. I'm still critical of the, the lack of transparency and due diligence. But it's an institution, I think, that is actually very good at learning through the war itself, which I think is what you're emphasizing.
- [33:26]
Larry Lewis (Principal Research Scientist, CNA)
Yes, I agree and I appreciate that. One other point I will make, and I think this is where this kind of forum can be useful because we can also learn from each other. There are lots of lessons that the US has learned the hard way. Sometimes we didn't learn it at first and we had to do it again and again. But those are things that could be imparted to help others to not make those mistakes. So for example, the World Central Kitchen, two things that really were prominent in that incident that we've seen before and that actually tends to be a chronic issue with humanitarian entities. One is the failure of communication from the higher level command, which does actually have the position of humanitarian organizations CLA in this case. So that is a chronic issue and that's not an IDF issue, that is a military issue. We saw, Ray Kundus saw it with the Saudis in Yemen. We see it regularly so that is something that is a chronic issue we need to fix. The other is the use of signs and symbols. So we see the red crescent or in the World Central Kitchen issue issue, that was the logos on the top of the vehicles. Right. And they weren't seen. Why? Because the drone used ir and so, and we see this repeatedly, there's an incompatibility between the signature of the sign or symbol and the type of sensor that the military is using. And I didn't see those necessarily in the World Central Kitchen strike, which is maybe not surprising because they're looking at the one incident. But if you look, you look longitudinally, these are things there's step patterns that you start to see. So that, that would be something that I would want to explore.
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- [39:23]
Moderator (Likely a Lawfare Host or Panel Moderator)
If there is a definitional challenge that arises from the Gaza conflict, I think it's that of what we often describe as human shield, something we discussed earlier today. The challenge when an adversary actively shields themselves, crowns themselves with civilian targets of variety and takes advantage of that circumstance in many ways. Clare, you've written about this in the context of Gaza and more broadly talked about some of the unique challenges they present, some of which we're already getting hints of in the exchange Jeff and Larry have been having.
- [39:57]
Claire Finkelstein (Professor, Lawfare Panelist)
Right. So the first thing is to think about the architecture of Gaza. 45050 miles of tunnel system, some of the layers of tunnel actually overlapping on other layers of tunnel. And it's interesting the example of the 500 pound bomb versus the 2000 pound bomb. The other reason why and Israel is very criticized by going to a higher level a weight of bombing. But it turns out it actually the a 500 pound bomb was not justified because it only hit surface targets. If your enemy is underground, you have to use a payload that is going to strike subterranean targets. So there's no military advantage if you're using a 500 pound bomb. So that's the first problem. But the very architecture suggests human shielding because you've got a dense civilian population which is literally on top of of the enemy, which is protecting themselves in literal alternate cities underground. So as a structural matter, how do you deal with that problem? And while the US had encountered tunnel systems in Mosul, there were tunnels in the west bank, there were tunnels in the north as well. There was nothing of this extent. And it really wasn't until I gather the war broke out in Gaza that the extent of the tunnel system was understood. So it's a, it's a built in human shielding situation that really hasn't been seen at this level until this conflict. And then on a more local level, the human shielding problem of deliberately co locating targets, military targets and military assets in a civilian population. So Jeff already described that when he talked about every house, every civilian location having some kind of military target in it, partly explaining the level of destruction I've heard it described. So in, In January of 2024, a number of US colleagues and I took a trip to Israel and we were the first academic group to pay a visit as a group. And I will say that the country was still incredibly much in a state of shock and trauma. They were incredibly grateful to have this visit of academics. But one of the things that kept coming home to us as people described what their experience was as the fighting began in Gaza was their shock at finding caches of weapons under children's beds in every home in Gaza, or the caches of weapons that of course became publicly known under hospitals or in schools in every civilian location. So when you have that much intermixing of military targets with civilian infrastructure, you have a deep problem of distinction and an incredible problem of how to mitigate civilian harm. When it's almost impossible to separate out civilians from combatants, then the final problem is of course, instances, and this has been much led to much confusion and distortion, I think in the media of having deliberate disguises and perfidy, I think in the fighting, use of press vests for individuals who really aren't press or individuals who may be pressed but are also combatants and trying to claim immunity that they're not entitled to. There may not be formal immunity for press, but there is, it's part of customary international law. That press should not be targeted and there of course, should be off limits, should be civilians. But if press are abusing that status, they're not in fact, press, then it is in fact a grave danger to journalists everywhere to have members of Hamas wearing press vests and claiming that they are immune, when in fact they are not. We had instances, of course, that was reported of members of the press who were actually holding hostages. So disentangling the civilians from combatants in this environment has proven extremely difficult and has led to enormous confusion in the media and has not helped the information environment at all.
- [44:52]
Moderator (Likely a Lawfare Host or Panel Moderator)
So I think the question of human shielding is undoubtedly one of the definitional challenges of the Gaza conflict, and particularly was for the first year, year and a half of combat operations there. I would argue over the last six months to nine months, we've seen another challenge begin to rise in prominence. That's the question of humanitarian assistance. That's a question of obligations, of policies towards providing humanitarian assistance, the ramifications for civilian populations. Chris, I want to come to you on this. Talk to us about how, from the US Perspective, evaluating and approaching its own strategies where humanitarian assistance fit in. What was the strategic vision for that? And how does that compare or reflect some of the challenges in the Gaza context as well as some of the strategies we've seen employed by Israeli forces there?
- [45:43]
Chris Maier (Former Assistant Secretary of Defense for Special Operations)
So, yeah, I'll start out by saying I think we need to be very careful about comparing, you know, a theory and practice in our shared experience in the United States to necessarily the details of what's going on in, in Gaza or frankly, another conflict. But I think one of the things that is core to how we thought about the Chimera enterprise is understanding first and foremost where the civilians were and what the infrastructure was that civilians relied on. And as was already talked about earlier today, it was about way prior to ever being involved in conflict. So we like to talk naturally in these forums about the final result, which is the munition going in the right place or the wrong place and civilians being hurt. But much of what we fundamentally believed in launching on emphasis with Chimer and the Department of Defense is we need to start way earlier. This was a huge planning problem. And we're talking about when you're sending soldiers or Marines or whatever downrange, the understanding way before in their workups and way before that, and all the, the training they receive and the experimentation we do that this needs to be part and parcel of the overall enterprise approach. And at the end of the day, the expectation is you're going to be operating even in a hot war in close proximity to civilians. So you have to understand what that means. Not just don't shoot the civilians, but all the associated livelihood functions that go along with that. And we saw this as the part of the strategic narrative, not only because every war, I think one could say the civilian population is at minimum decisive, not the center of gravity. And I think what we've seen in the context of Gaza is there's also another group that's external that's going to look at this and pass their own judgments. Good, bad or ugly, it's going to be out there and these are going to have implications. And I think, as others have already commented, being transparent and being able to articulate what you're doing and have that be credible is also a key part of the strategic imperative. And that's, I think, as we looked at the Chimera enterprise and where that was going to help us be more effective in a strategic contest with adversaries, we really saw that as central.
- [48:13]
Moderator (Likely a Lawfare Host or Panel Moderator)
I want to give an opportunity for each person away with some final thoughts on certain aspects of this because we're at a little bit of a seminal moment here in the United States. We have seen a very visible and vocal policy pivot, at least in rhetoric around these issues, possibly in substance as well, the exact nature of which I think is yet to be determined. As Chris has described to some extent in Israel, we are seeing possibly the winding down of the Gaza conflict, a light at the end of the tunnel potentially. But with that also comes a potential reckoning, a need to look back and say what errors may have been made or may not have been made and how does that inform future war fighting? So from the four of you, starting with Jeff and then coming back and we'll give Claire the last word as.
- [48:58]
Chris Maier (Former Assistant Secretary of Defense for Special Operations)
Our host, talk to us about what.
- [48:59]
Moderator (Likely a Lawfare Host or Panel Moderator)
Do you think are the big takeaways as we approach this turning point? What are the big lessons we need to be taking away from these experiences, US and Israeli, the last few years? And what do they need to be informing as we look forward to the next era of challenging and conflicts those countries and other countries will be facing?
- [49:17]
Jeffrey Korn (Army Judge Advocate General, Lawfare Expert)
I think Chris's last comment really crystallizes my answer, which is the single most essential aspect of civilian risk mitigation is leadership. Leadership at the strategic level, the operational level and the tactical level. Leadership that understands that your obligation is to avoid contributing to a perception of indifference to human suffering, which is inevitable, inevitably going to be derived merely from the effects of combat. I mean, we can argue all day long about whether it's fair or unfair or equitable or not. It is reality. This is a reality. And you can very quickly win a campaign on the battlefield and lose the campaign strategically if you contribute to that perception of indifference. So, you know, you, you asked Chris the question about providing for the needs of the civilian population. And he didn't go into debates over whether Gaza was technically occupied and therefore triggered the obligations of the fourth convention. He came at it from a much more pragmatic standpoint. If you are going to be there, your actions are going to contribute to that perception. So I think one of the great, for me, what I see as one of the tragic lessons of Gaza is that there was tremendous tactical brilliance on the part of the IDF that was nullified by strategic blunder, by not having a clearly defined end state, and also by having politicians who wanted to use their own version of lawfare, which is to be technically tight on what the law required, particularly in relation to humanitarian assistance, and in a way contributed to the perception of indifference that nullified all those efforts that were actually happening on the ground. And I think that's the transcendent lesson of this conflict. Get over it. You're not going to be able to fight in an environment where you're just going to be able to say, this is what the law requires and we complied with it and don't worry about everything you're seeing. You have to be able to push back against that every feasible way possible. And I'm reminded of a conference I went to with Penina after the 2014 conflict in Gaza. And I remember that the chief of staff had just retired and he got up to speak and he said, I remember we were receiving rockets from Gaza and my 98 year old mother lived down near the border and I called her up and I said, are you in the shelter? And she had survived the blitz in London and she said, no, it doesn't matter either I'm going to get hit and I'll be gone or I'll live through it like I have before. And then he said, and I remember she said to me, I want you to fight them and feed them. I'll never forget that that was the IDF chief of staff. In other words, the recognition that you have a dual obligation, close with and destroy your enemy, but do it in a way as best you can to mitigate human suffering, because that's what's demanded of a military, of a democracy that prides itself on respect for the rule of law and humanity. And I think that's what we owe our subordinates as well, because they're going to have to come through this process and live with what happened. So for me, that's the lesson. This is not just a technical legal issue, it's a broader issue. There is strategic imperative here and we know what the world is going to demand in future conflicts and we better be prepared to deliver it.
- [52:53]
Larry Lewis (Principal Research Scientist, CNA)
Larry really well said, Jeff. I agree and I kind of think about it in the reverse way, but I think it's the same message. First of all, I think future conflict for the US Large scale combat operations, this is going to come up. If we think we're going to have an operation with Taiwan and China is not going to use this against us, then we're delusional. This is going to be a challenge. And if we're not enabling the commander to manage that, then we're setting them up. At the same time, I think the power of what civilian harm mitigation really does is it it empowers forces to support that commander's intent. And we just did this project on human shields, which is arguably one of the toughest challenges, like how do you mitigate civilian harm when they are being held, often against their will, adjacent to a military objective? What we found is that we found number of cases where US Forces were being created and they found ways to do shaping, using tactical patience and operational alternatives to find ways to separate the civilians being used as shield from military targets. And so no civilian casualties and the military objective was met. Right. So that's this creative looking for how we solve these dilemmas. But to me the challenge of that was that these are things that they came up with in the field and they were not supported by doctrine, not supported by training. So I do think we need to be preparing, we need to be experimenting and we need to be developing solutions so that we can address this and not be blunted in our military force, but be able to confront these dilemmas that we are going to face.
- [54:54]
Chris Maier (Former Assistant Secretary of Defense for Special Operations)
So we're talking principally about Gaza and the IDF's role. But I think I would pick up on the other parts of what has been the two plus years of IDF experience to the very precise and very measured, very sharp and very strategically impactful military operations against Iran and against Lebanese Hezbollah. And I think as we thought of the civilian harm mitigation effort, it was to really augment and as others have said, give those tools to not only our commanders, but we would often talk. It was all the senior leaders in the department who own the responsibility, just not The Target Engagement Authority, those that were actually calling the strike that owned this problem, because the same way we think about it now, as for us to be as. As capable war fighters as possible, we're talking about a million drones. We're talking about using AI for decision advantage. A key part of that is making sure the civilian protection and the understanding of the civilian environment keeps up with that. Otherwise, we're going to be looking at considerable examples where we wish we would have started on this earlier. So from my perspective, it's the power of our example as the American military and our allies and partners to be developing this alongside the military capabilities we're developing, that will continue to make us as lethal. And I hope at the end of the day, when we're able to demonstrate that, at times it'll be people in Beijing and people in Moscow asking the guys wearing the uniforms with all the ribbons, could we do that? And having a lot of uncertainty about whether that level of precision, because that's really what this is about, could be executed by their own men and women in uniform.
- [56:37]
Moderator (Likely a Lawfare Host or Panel Moderator)
Very last word.
- [56:39]
Claire Finkelstein (Professor, Lawfare Panelist)
I remember in the beginning of the war in Ukraine reading about how Ukrainian civilians were going out to repair the oil and gas lines that Russia had bombed so that Russian oil and gas could get to Western Europe, from which Russia was benefiting to the tune of millions of rubles, what a day, a week, huge amounts of money that was literally funding the war against Ukraine. And I remember thinking to myself, why do they repair it? Why do they do it? They're under no obligation to do that. And some were killed actually repairing those lines. Well, of course, they were worried about their partnership and the support from Western Europe, Eastern. Western Europe, in particular from Germany, from Poland. And they knew that there would be a huge energy crisis in those countries which were very heavily dependent on. On Russian oil and gas. And I thought, how ironic they are forced to fund the war against themselves every day. Well, the situation in Gaza is that kind of complexity, in which, in a sense, there are multiple situations. And the AIDS situation is one more situation where you have a situation where Hamas has been stealing the aid, and then it is necessary for Israel, of course, to allow aid in, for civilians to benefit from that aid, while Hamas is taking the aid and funding, using it to fund a black market, to fund a war against Israel. And I think to myself, everything I learned about war was too simple. And I wonder whether or not things like the principle of distinction actually continues to hold in future warfare. Because when we talk about a battlefield and we think about civilians being off the battlefield and combatants being on the battlefield. Where is the battlefield? There's no more actual limits to the battlefield. Cyber already did that to us so that we have an intermixing of the civilian population with combatancy because of cyber, and we see that on a regular basis. But in kinetic warfare, we now have the examples that show us that we can no longer effectively distinguish between civilians and combatants in a meaningful way. And that makes me worry profoundly about the future of international law. So I think that Gaza has been a training ground and a place where we need to learn deeply from the complexities of the situation, and we've only begun to mine the lessons that are presented there. I hope that we can rise to the challenge. I hope the information environment will clarify itself in time and that we'll come to a sort of consensus around both facts on the ground and lessons learned from those facts that allow us to move forward and benefit for future conflicts.
- [60:05]
Moderator (Likely a Lawfare Host or Panel Moderator)
Well, thank you to all four of our panelists for a very stimulating, interesting conversation. To all of you for contributing to this conversation, thank you Slavi. Great job.
- [60:17]
Scott R. Andersen (Senior Editor, Lawfare)
The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter@lawfaremedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including National Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work@lawfairmedia.org this podcast is edited by Jen Patchett. Our theme song is from Alabama Music and as always, thank you for listening.
- [61:00]
Claire Finkelstein (Professor, Lawfare Panelist)
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