The 50 day Gaza War ended in late August.   But Israel and human rights groups are still fighting over whether the Israeli army committed war crimes, just as they have after every major Palestinian-Israel clash.   What makes the  current fight unusual is that General Martin Dempsey, the Chairman of the Joint Chiefs of Staff,  just sided with Israel.  General Dempsey stated that “I actually do think that Israel went to extraordinary lengths to limit collateral damage and civilian casualties.”    In doing so, General Dempsey disagreed, not just with the human rights groups but even with the criticism of Israel’s use of force by the White House and the State Department. 

The judgment of military experts is crucial in assessing a war crimes charge, which in the context of the Gaza War involves  fairly straightforward legal principles but incredibly difficult and elusive battlefield fact finding.    The issue is not whether the Israeli army caused civilian deaths.   Rather, the essential inquiry is whether Israel used proportionate force, that is, pursued military objectives while making reasonable efforts to minimize civilian casualties.   That determination in turn depends significantly on understanding the dynamics of the Gaza battlefield, the necessary force given those dynamics, and, in the chaos of battle in an urban area, what constitutes accidental, unintended civilian deaths as opposed to deliberate or reckless targeting of civilians.  It’s not for amateurs.   

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That’s why General Dempsey’s remarks, which he made earlier this month during a talk at the Carnegie Council for Ethics in International Affairs but which have been largely overlooked, are significant.   He explained that in the dynamics of the Gaza battlefield, underground tunneling had turned Hamas into “nearly a subterranean society” directly beneath the civilian population.  He cited the tactics used by Israel to minimize civilian casualties, including leaflets and “roof knocking” by small rockets with low-yield explosives on buildings to warn civilians sufficiently in advance of a coming strike to evacuate the building (or get away from a tunnel).   He noted that the Joint Chiefs were sufficiently impressed that they sent an American military observer team to Israel to “get the lessons from that particular operation in Gaza.”   General Dempsey’s bottom line was that the Israel Defense Forces “acted responsibly” and that “the IDF is not interested in creating civilian casualties. They're interested in stopping the shooting of rockets and missiles out of the Gaza Strip and into Israel,"”

But the critics of Israel’s use of force in the Gaza War appear to care little about what military professionals might have to say.   In September, Human Rights Watch issued a report accusing Israel of war crimes in connection with civilian casualties when Israeli forces damaged schools housing displaced people.   Such events need to be investigated but the only “expert” quoted by name in the report was a researcher with a degree in international relations but no apparent military background.   Amnesty International recently issued a report accusing Israel of displaying  "callous indifference" to civilian lives in the Gaza conflict.   The 50 page report refers to Amnesty’s “military experts” who had examined photographs of destroyed buildings (Israel did not permit Amnesty International to enter Gaza).   But the names and military qualifications of these experts were nowhere disclosed.   

Neither report described the battlefield dynamics (neither mentioned the tunnels) but both made headlines around the world.   By contrast, the Hamas rocket attacks on Israeli civilians, intended to kill as many Israeli civilians as possible within the limits of the rockets’ accuracy, are only briefly mentioned  in the reports.     

A State Department spokesperson, Jen Psaki, when asked about General Dempsey’s remarks, in effect, dismissed them.   Re-iterating criticism by the White House during the Gaza War, she stated that “it remains the broad view of the entire Administration that they [Israel forces] could have done more and they should have taken more – all feasible precautions to prevent civilian casualties.”   She did not cite the support of any military expert, or suggest what more could have been done to minimize civilian casualties, even though the State Department was disagreeing with a military opinion offered by the nation’s high ranking military officer.

And that’s the problem.  Israel is being found guilty of war crimes not based on a measured military assessment of whether proportionate force was used, but simply because of the terrible fact that the battlefield dynamics of the Gaza War made such casualties inevitable despite tactics designed to minimize them.   As General Dempsey said, “In this kind of conflict, where you are held to a standard that your enemy is not being held to, you’re going to get criticized for casualties.”

Wallance is a lawyer and writer in New York City, a former federal prosecutor, and a board member of Advancing Human Rights, which uses social media to promote human rights in repressive countries.