Ladies and Gentlemen,
Welcome to INSS and ICRC-s conference, the 3rd event we organize together, this year, again, on ‘The Challenges of Warfare in Densely Populated Areas’. Previous exchanges had a strong legal angle, let’s hope we can build on that and focus on policies, doctrine of engagement, and operational best practices.
I will make two main points here:
– Engaging with all parties to conflict: necessity or complicity?
– Is IHL still relevant, in light of what we see in contemporary warfare and armed violence?
Engaging with parties, necessity, or complicity?
So first, Welcome again – to the most delicate and controversial public event the ICRC delegation in Israel and OT has ever organized.
Why delicate? the last war in and around Gaza is just behind us yet still with us. The ICRC, present in the field during and after the war, has now acquired, though its field-based assessment conducted during and after the war, a substantive knowledge and understanding of the dynamics, facts, and impact of this summer’s high-intensity conflict. This unique perspective feeds a dialogue between ICRC and the parties this conflict, on both sides, which is strictly confidential. (BTW – The ICRC does not share any of its factual findings with the variety of processes and reviews on penal accountability, by UN or NGOs, or anybody else). And yet here we are, in a public event, focusing on possibly the single most complex and important facet of the conduct of armed operations in this context and region – that of asymmetric warfare.
Why controversial? There have been far more voices and pressure on the ICRC NOT to be part of this conference than encouraging us to be part of it. Did you know there is even an on-line petition? since this spring, DEMANDING the cancellation of this event. It says: ‘The joint participation between the ICRC and the INSS can only be seen as a way to provide international and legal protection for Israel’s war crimes against Palestinians’.
We are familiar with this type of pressure. It reflects common misconceptions about humanitarian action. The ICRC is often criticized for engaging with Non-State Actors such as Hamas, or the Taleban, or the FARCs, or the LTTE, etc. because that is seen as ‘giving political credence and legitimacy to (usually) terrorists. Your neutrality is complicity’. Well, IHL explicitly states that genuine, principled humanitarian action cannot be construed as a political endeavor – and therefore must not be hindered because of political considerations.
Another criticism related to our engagement with parties to conflict – States or Non-State – is manifested, across the lines, through sarcasm and disbelief at our point that we talk with ‘the other side’ as well. ‘Come on, how can you believe THEY are genuinely willing to ‘minimize civilian casualties? THEY have a different concept of human life. THEY USE their casualties in the warfare. Don’t you see the facts? And don’t you see how THEY manipulate IHL and you?‘
The good question is then: does it work? Let me give you an anecdote: April 2011, an ambulance was used to carry out an attack on a police station in Kandahar, Afghanistan. A few days later, the Islamic Emirate of Afghanistan (mainstream Taleban organization) publicly acknowledged the facts and announced it would not happen again. The prohibition of this perfidious means of war, quite banal in that battle-space, was incorporated in the Taleban military doctrine. The ICRC had a significant role in this, and in many other cases pertaining to means and ways of waging war by NSA, in all continents, including many officially labelled as ‘terrorists’. Problem is we cannot really show that off because most of what behind the scene, well, must remain behind the scene. That’s how we, ICRC, can achieve the best results, not the ideal ones necessarily, but something meaningful nevertheless.
We also face criticism for allegedly ‘failing to address the issue with the real responsible ones, ‘letting them off the hook’, even ‘rewarding terrorist (or genocidal) doctrines’. No matter what, public silence does not mean inaction, trust us on that, at least on our side.
Dear guests, such criticism is understandable and we do not take it lightly. The fact we are here today shows how the ICRC has chosen to respond to it. What guides our decision? The ultimate interest of the people affected by war. If we can make a difference by engaging with those with power over them, we will engage with them. Also, we know very well that humanitarian issues take place in a politically charged environment, so we’d better deal with it rather than live in splendid isolation. We are not keyboard warriors. We cross lines, and shake hands with everybody. We are the ICRC.
We are here today to help shape an important debate, because we are tasked to do so, and believe it is more constructive to engage and sustain the dialogue rather than to boycott it. We are acutely aware that any party to a conflict naturally tends to manipulate the humanitarian factor. The battlefield is larger than physical – it’s also very much a battle of perceptions.
However, let’s be clear: ICRC will not be used as fig-leaf. That’s why our engagement, with anybody, again very much depends on whether it leads to some tangible results or not.
A word about the ‘double-standard’. A line of criticism we are daily confronted with in Israel is that the ICRC, among others, should not feed the disproportionate and ‘biaised’ scrutiny and blame of the international community against Israel. ICRC, among others, is being instrumentalized politically and, even worse, is condoning and even effectively supporting an adversary that uses terror methods.
We understand where this comes from. The ICRC delegates are currently deployed and struggling in many difficult contexts places where the human cost is, in quantitative and sometimes qualitative terms, much heavier than in Israel/Palestine, yet generate only a fraction of the attention and scrutiny we get here. As ICRC, we have to deal with more casualties in a week in “forgotten conflict” than in one full year here, so how can we justify the energy and resources we devote here?
No we do not have an obsession with Israel and Palestine, and yes we are aiming here at comparatively high standards. It’s the other actors, States or not, in other contexts, who are lagging behind. Firstly, the IVth GC applies here (vs. the simpler “right of initiative” in most other non-conventional conflicts). Secondly, we have a privileged access to people and places here, and we are, on a daily basis, making a difference thanks to that access. Thirdly, the humanitarian situation requires it, the people protected by IHL are entitled to the best we can offer. That’s who we are and what we stand for.
What is the alternative? Cut our action down because ‘it is worse, much worse elsewhere’? No sorry. There is much to do here. My point is that relativism will take us nowhere good: it opens the gate to ‘reciprocity’, which is more than simply “an eye for an eye’, it often implies a line like: ‘We cannot or do not want comply with the rules our adversary violates’. Such a ‘complacent, self-exonerating posture’ is… not constructive, to say the least.
Constantly put the respect for civilians and non-combatant at the heart of political and military decisions: that’s our ethical imperative.
Which bring me to the question of ethical frameworks vs. legal ones. The ICRC hears it everywhere. The Maoist ethical framework in Peru and Nepal, the Islamic one in a variety of Arab, Persian and Asian contexts, the Christian one, in the West and elsewhere, the Buddhist one in Sri Lanka and Myanmar. Even ethical frameworks deriving from tribal codes, including from Animist communities (more than one nomadic tribe in the Horn of Africa considers that all cows, I mean ALL cows anywhere in the world, belong to them and they are entitled to take them, with force, from their ‘illegal’ owners, by virtue of a superior right). All basically stating that THEIR own ethical framework is, because of its transcendental nature, superior to any other, already integrating whatever good we could sensitize them with, such as IHL. And justifying things… Now we increasingly pick up this notion of ‘Jewish values’. Now, while we recognize and respect religions, philosophies and associated ethical frameworks, what we talk about here are secular, legal, human (meaning, all humans) rules that are meant to bind and protect everyone, nothing else.
is IHL still relevant?
The question of warfare in densely populated areas requires a debate and scrutiny across the board because lives depend on it, and because it’s in everybody’s interest to be serious about it. The fact this subject is so delicate does not discourage us from tackling it publicly, quite the contrary: it precisely confirms how relevant it is to do so. We look at Gaza, Lebanon, Syria, Iraq, the region at large, we look at Pakistan, Bangladesh, Nigeria, etc etc, we have the world; every day more urban and more populated. Glo-cal politics evolve, conflict dynamics more often than not are asymmetrical (this very term needs clarification, by the way), the policies and strategies of belligerent parties, states and non-States, also evolve, depending on many factors, such as local and wider geopolitical hard trends, but also globalization, international terrorism, and of course technological progress, whether in weaponry or in intelligence gathering.
This debate triggers legal, ethical, humanitarian fundamental questions, and not merely academic ones. And it’s not even only about political and moral legitimacy: it’s about flesh, blood, tears, pain and loss. Wars kill, maim and destroy, and that’s the reality we have to deal with, in the most responsible and civilized possible way. From an IHL and ICRC perspective, that means, concretely, that the impact on non-combatants must be limited to the military necessity. From there, the difficulty lies in striking the right balance between the military objective and its humanitarian cost.
It is our experience in past and contemporary conflicts that this tension is constant and objectively hard to manage by the warring parties. In urban warfare, how to interpret proportionality (military advantage vs. human cost)? Should that be seen on a case by case, as lawyers tend to do, or in larger, more strategic perspective, like analysts tend to do? ‘We have no other choice’ we hear. ‘We do everything we can’ and ‘we are forced to fight this way because of the actions of our enemy’ and eventually ‘ Get real!’
Well, exactly: let’s get real: in the world today, warring parties do not get that balance right, although some are more ready and willing than others, of course.
And if WE, ICRC and others, are missing something, then please enlighten us. That’s also why this conference is important to us: because IHL is not a ‘holy scripture’ with dogmas: it is an organic, evolving framework that is meant to provide realistic tools to deal with real issues in a changing environment. When we ask at IDF and all others to demonstrate in action that they are a ‘learning organization’, we demand the same from ourselves: help us learn and adapt.
As a normative framework, IHL is challenged for sure, but has it become irrelevant? Its spirit, principles and rules, are they still useful, when dealing with the current security challenges? … well, allow me to say first that IHL is the only legal framework that governs military action in a situation of conflict. By allowing legitimate attacks, with collateral damage, it allows much more than what is acceptable in Human Rights Law, not to mention in a public mindset (cf. the reflection of MG Dan Efroni on the clash between legitimacy and legality).
Second, IHL enables us to measure the efforts and progress being made, within military and other establishments. It would be dishonest and unfair not to acknowledge the amount of energy – at many levels – invested in minimizing human casualties. The glass is not half-empty, it’s also half-full. A simple look back at our history testifies of the significant progress made. Opinion-makers who describe the current humanitarian state of affairs as ‘worse than ever, and worsening’ simply ignore Vietnam, Algeria, Cambodia, Rwanda, not to mention WWII – to mention just a few. We are in a much better place today. And it should not be taken for granted. Let’s ask ourselves ‘how bad things would be if IHL – however imperfect or poorly respected they may be – did not exist?’.
The practices and doctrines of warring parties evolve, sometimes in a good direction, but that should not be used as an excuse for NOT doing better.
Sometimes they evolve in a bad direction. At times, it even seems like the ones making most visible progress are the spin-doctors and the spokespersons.
Precaution, distinction, proportionality. These are the guiding principles in IHL that need respect under all circumstances, even the most difficult ones. And if the human cost is predictably too high, the attack must be aborted, not justified a posteriori: that’s a fundamental principle of IHL.
How can politico-military entities, among other stakeholders, each with its own constraints and dilemmas, manage the military theatres of operations with a realistic set of guiding rules and principles that will help the field commanders, who is the one making the hard call at the end of the line?
So yes, let’s get real indeed.
Now, reality is that in today’s wars civilians are paying too high a price. Currently, it’s plain for us to see how even the vulnerability of the civilian population is transformed into tactical advantage and political leverage (cf. Gabi Siboni’s article). The ICRC would even say that actual victims are used as pawns in a grand, global, blame-game and often brandished as the justifying banner of further victimization.
At the end of the day, make no mistake, what we see all over the world is that the obligation to spare civilians from the effects of hostilities is all too often subordinated to military – and/or political – factors.
One may even contend that IHL is under assault and that the world fails to realize the extent of the threat and to address it adequately, despite the efforts and the progress achieved in many sectors over the past few decades, including by Israel.
Blame all of it on real-politik, cynicism, complacency, incompetence, ignorance… blame on what you want, but now let’s look at how to be stronger, not at how to justify our weakness. It’s possible and it’s the right thing to do.
Because the recent Israel-Gaza conflict is the elephant in the room, let’s clear the air: the ICRC has publicly stated that the cost of the war in Gaza – in terms of human and infrastructure toll – demonstrated that the Parties failed to comply with IHL. This is not about a ‘number of casualties’ as such – it’s about how they happened. For the ICRC, ‘which party’ is to be confronted with ‘what facts and practices’ belongs to the realm of confidential dialogue. It does not mean there is an ‘equivalence’ of sorts between the parties, nor that both parties have the same mindset or understanding with regard to IHL and their own obligations – it just means that each party, each one in accordance to its own assets and constraints and records, which are obviously very different, needs to do better. The ICRC being neutral does not question the political decisions leading to the military option (jus ad bellum vs jus in bello), but is firmly convinced that the same military objectives can be achieved with lesser human costs.
IDF is an important stakeholder in the evolution of the Law of War. It is bearing the daunting responsibility to protect and defend its State and its population while committing to the highest possible ethical standards. This is actually the responsibility of every politico-military player, but how each of them takes it only depends on itself and its willingness and capacity to give itself a hard look and make course-correction when possible and needed. This is exactly our mindset when we engage with ALL governments, armies, NSA such as Hamas, Hezbollah.
Here, much more needs to be done, by the ICRC but even more importantly by everybody else, including regional and global powers, civil society, etc. For the ICRC, to confront Israel with such issues, and Israel only, without looking at the responsibilities of its adversaries and the international community at large, is an insult to the truth, reality and ethics. But to abstain from confronting Israel with these very issues would be irresponsible – flatly wrong.
It is therefore important that you, guests at this conference, realize that this is not specifically about Israel alone, nor Hamas alone, not even on the Israel-Hamas conflict. It goes far beyond our little corner of the earth, home to a tiny fraction only of the world’s population. This conference is not, and should not be, focusing on Gaza, “Protective Edge”. This conference is about the big picture of today’s and tomorrow’s conflicts – everywhere.
The ‘challenges of Warfare in urban areas’ are the challenges of civilization. They materialize in various shape and forms, and have of course very different levels of gravity depending of what and where we are looking at.
This conference is about Warfare in Densely Populated Areas. It is informed by the past and the present. Let us make it also about the future: it is very much about those who have not died yet, here and across these very borders.
Finally, I’ve learnt two interesting Hebrew words recently: the first is ‘Hasbara’ i.e. institutional narrative. We all have one. The second is: ‘Tahless’, i.e. ‘no beating around the bush, let’s deal with the real issue’. From the ICRC’s standpoint, that’s the main encouragement and hope, in this conference: