Lawfare Daily: Lessons for Civilian Harm Mitigation in Urban Warfare, from Gaza and Beyond

[Intro]

Geoffrey S. Corn: 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.

Scott R. Anderson: It's the Lawfare Podcast. I'm Senior Editor Scott R. Anderson. Today, we're bringing you the audio for 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 Maier, 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, an expert in civilian harm mitigation; and Professor Geoffrey Corn of Texas Tech University School of Law and expert in the law of armed conflict with more than two decades of experience as an army judge advocate general.

Claire O. Finkelstein: 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.

Scott R. Anderson: Together, we discussed what lessons can be learned about the future of urban warfare and civilian harm mitigation from Gaza and other recent cases.

[Main Episode]

Geoff, I wanna start with you for this conversation because I think, given that we are a predominantly American audience, and particularly a 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.

Geoffrey S. Corn: 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 sides coalesce very quickly—

You had the former military legal advisor saying, no, that's too much to ask of a commander. It was predominantly the ICRC representatives who were saying, no, we've, we are advocating this. And it struck me that 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 commanders 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's 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, we've all—all the JAGs have had the experience where the commander and the battle staff says, that's your job, JAG. I didn't take a class in law school on civilian harm mitigation, casualty monitor, 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. Then a couple of years later, Dan Stigall emailed me, said, you're gonna 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-off effects of combat operations, the more rational the decision making's going to be on whether or not to employ combat power in any given situation.

Scott R. Anderson: So, Chris, lemme come to you to fast forward a few years because you, during your time as assistant secretary, were there, during the period where we saw some of these initial ideas from Geoff and from others get operationalized, not just within the executive branch, but also by Congress with companion legislation.

Talk to me about that effort, which you played such a central role in the approach, the strategy where it manifested. And then I also wanna 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.

Christopher Maier: Yeah. So first off, thanks to CERL 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 Geoff said, and one of the smartest things I did as the assistant secretary was hire Dan Stigall 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 gonna do. And I couldn't figure out who could lead it. And then Dan walked in on his other job. I'm 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 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, of 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. We often talk about, in particular, in these forms, about the moral imperative. It was really the strategic prioritization that drove us because we looked at a potential change in character of warfare 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've exceeded anybody's experience with the, 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 gonna account for a civilian environment that was gonna be there.

No modern war had been fought in, you know, 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 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 that's, this has been well documented with the reductions in certain aspects of the Department of Defense, now Department of War, 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 Geoff, and I'm sure others will talk about, was the intent behind this.

And you know, 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 harks me, even if there is a significant reduction in numbers and capacity of this entity and enterprise really across the Department of Defense.

Scott R. Anderson: 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 in the Israeli government wrestle with in a variety of ways, how to approach combat operations in.

Geoff, I wanna 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 might have, points of challenge that they were wrestling with, or there may have been deficiencies. What was your takeaway from that experience?

Geoffrey S. Corn: Boy, there's a lot of there was a lot of emotion.

I remember going in, meeting with the brigade, having the briefing and the brigade tactical operations center right outside the border of Gaza. Then loading up into the humvees and going into Gaza. So I just wanna highlight a few points that really stuck out for me.

First off, was how close it was to home. 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 FEBA, 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, 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 position, maneuver through the buildings, right.

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. A 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 five to one instead of three to one.

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 was 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, 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. These are not trip wire 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. He 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 combating Gaza and make a conclusion that everything is disproportionate.

For me, that's like saying one plus, I don't know, equals 10. The one is the attack, the 10 is the level of destruction. The ‘I don't know’ are 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, 'cause they've already shifted to the north. They put up the slide with vehicle damage. 2,700 vehicles in the division were damaged. And I said, was that like accidents? No. Every one of those 2,700 suffered combat damage. Combat.

Now, 2,700 vehicles suffering combat damage. You're not just fighting a terrorist with a Molotov cocktail. 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 and 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.

Scott R. Anderson: 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 faced in Gaza.

At the same time, we're in a difficult position where people outside U.S. policy makers, other people do have to make assessments because they have to make policy decisions of real-time, how to engage in this.

Larry, you've advised U.S. policy makers and foreign policy makers, foreign combatant commanders, about how to engage and address these issues, and you’ve spent 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, Geoff has illustrated for us.

Larry Lewis: Sure. Well, by the way, it's a pleasure to be here and thank you Geoff 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 U.S. operations, but also partner operations to understand what's happening and we understand, you know, 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, right? The first thing we do is listen. I will say that there has never been a case where we've been able, 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 and they said, you know, look, we've been doing this for a long time. We've really honed this. And his staff said, you're not gonna find anything. We are so good. We have so many drones, you know, we're great. Right? And so 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 outbrief.

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 wanna 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, okay, 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 wanna 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, right? 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 wanna bring up. Okay?

One is that we hear a lot about IDF precautionary measures, and those precautionary measures tend to be warnings, you know, roof knocks and leaflets, right. And so it's always good to use precautionary measures At the same time, what we've learned in the U.S. 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 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 wanna 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? Have you are there others that you're just not talking about? Right? Are there others that are possible? So that's, that would be one thing that I would wanna talk about.

In the initial part of the campaign, there was a lot of press about the use of widespread use of 2000-pound bombs. And I don't want to be, you know, I'm not one of these people that says, you know, big bombs are always bad. Okay. There was one case I remember in Afghanistan where, you know, there, 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. Right?

And 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 2000-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 ever re-attack and you've just killed civilians. Right. So, so we need to be thoughtful about the size and the type of ordinance, but I would want to discuss, okay, 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 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 are, you know, 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 wanna say, do you have numbers on civilian harm? Because ultimately one of the lessons we learned very early, you know, we, 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 define 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 Geoff'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, from, not from just one incident but finding the patterns, right, and finding better ways 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 I were there—

Geoffrey S. Corn: Could I quickly, two—

Larry Lewis: Yeah, please.

Geoffrey S. Corn: Two aspects of their process that go directly to your point, which I didn't know anything about either.

They, I forget the name of it. They've created after the Turkel Commission, a high-level investigative body that the chief of staff 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 him the full briefing of all of their findings. 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, create 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 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, they said, well, we've never said it's a safe, 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 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.

Larry Lewis: Yeah. Yes. I agree and I appreciate that. One other point I will make, and I think this is where this kind of form can be useful, because we can also learn from each other. There are lots of lessons that the U.S. 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, that really were prominent in that incident that we've seen before, and that actually tends to be a chronic issue with humanitarian entities. You know, one, one is the failure of communication from the higher-level command, which does actually have the position of humanitarian organizations, right? The CLA in this case.

So that is a chronic issue and that's not an IDF issue. That is a military issue. We saw it, right? We saw it with the Saudis and Yemen. We've seen, 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, you know, the Red Crescent or in the World Central Kitchen 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.

So, so, 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 longitudinally, these are things, they're step patterns that you start to see. So that would be something that I would wanna explore.

Scott R. Anderson: If there is a definitional challenge that arises from the Gaza conflict, I think it's that of what we often describe as human shields. Something we discussed earlier today, the challenge when an adversary actively shields themselves around themselves with civilian targets— and takes advantage of that circumstance in many ways.

Claire, 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 Geoff and Larry have been having.

Claire O. Finkelstein: Right. So the first thing is to think about the architecture of Gaza, 450 miles of tunnel system, some of the layers of tunnel actually overlapping on other layers of tunnel.

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 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 the enemy, which is protecting themselves in literal alternate cities underground. So as a structural matter, how do you deal with that problem? While the U.S. 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 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, Geoff 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 January of 2024, a number of U.S. 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 press 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, as 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 this, 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.

Scott R. Anderson: So while 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 in 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 and ramifications for civilian populations. Chris, I wanna come to you on this.

Talk to us about how, from the U.S. 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?

Christopher Maier: So yeah, I'll start out by saying I think we need to be very careful about comparing, you know, a theory in practice in our shared experience in the United States to, necessarily the details of what's going on in Gaza or frankly, another conflict.

But I think one of the things that is core to how we thought about the trimmer 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 the 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 CHI in the Department of Defense is we needed 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 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, that go along with that. And we saw this as the part of the strategic narrative, not only because every, you know, 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 gonna look at this and pass their own judgments. Good, bad or ugly, it's gonna be out there and these are gonna have implications. And I think as others have already commented, and 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 trimmer enterprise and where that was gonna help us be more effective in a strategic contest with adversaries, we really saw that as central.

Scott R. Anderson: I wanna 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 a 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 Geoff and then coming back, and we'll give Claire the last word as our host, talk to us about what 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, U.S. 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?

Geoffrey S. Corn: 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 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 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 conven—

He came at it from a much more pragmatic standpoint. If you are going to be there, you are going, your actions are gonna contribute to that perception. So I think one of the great, for me, one, 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 gonna 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—after the 2014 conflict in Gaza, and I remember that the chief of staff had just retired. 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 gonna get hit and I'll be gone, or I'll live through it like I have before. And then she 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, 'cause 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, 'cause they're gonna 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.

Scott R. Anderson: Larry?

Larry Lewis: Really well said, Geoff. I agree and I kind of think about it in the reverse way, but I think it's the same message for, you know, first of all, I think future conflict for the U.S. large scale combat operations, this is going to come up. If we think we're gonna have an operation with Taiwan, and China's not gonna use this against us, then we're delusional.

This is gonna be a challenge and if we're not enabling the commander to manage that, then we're setting him up right. At the same time, the, I think the power of what civilian harm mitigation really does is it empowers forces to support that commander's intent.

And we just did this, this project on human shields, which is arguably, you know, one of the toughest challenges, like how do you mitigate civilian harm when they are being held, you know, often against their will, adjacent to a military objective. What we found is that we found a number of cases where U.S. forces were being creative, and they found ways to do shaping using tactical patients 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. And so, but to me, the challenge of that was that these are things that they came up with in the field.

They were not supported by doctrine, not supported by training, right? So, I do think we need to be preparing, right? 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 gonna face.

Scott R. Anderson: Chris?

Christopher Maier: 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 own this problem, because the same way we think about it now as, for us to be 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 gonna be looking at considerable examples where we wish we would've 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, 'cause that's really what this is about, could be executed by their own men and women in uniform.

Scott R. Anderson: Claire, last word?

Claire O. Finkelstein: 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 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 aid 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'll allow us to move forward and benefit for future conflict.

Scott R. Anderson: Thank you to all four of our panelists for a very stimulating, interesting conversation to all of you for contributing to this conversation.

Claire O. Finkelstein: Thank you, Avi. Great talk.

[Outro]

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