Colonel Richard Kemp submitted evidence into the conduct of
Israel’s IDF forces and Hamas during the 2014 Gaza conflict to the United
Nations Commission of Inquiry on February 20, 2015.
Kemp offered his close observations to the Commissioners as
a neutral but experienced military expert having served as Commander of British
Forces in Afghanistan and having commanded British troops in Bosnia. Much of
his 29 years military service was spent countering terrorism in Iraq, Northern
Ireland, Saudi Arabia, and other spheres.
It will be recalled that Kemp gave evidence to the Goldstone
Commission after the 2012 Gaza conflict in which he exonerated the conduct of
the IDF but which was ignored in a blatantly one-sided Goldstone Report which
Judge Goldstone later disowned when contrary evidence was produced.
As one of the few military experts to spend considerable
time in Israel close to the conflict zone throughout the period of battle,
Kemp’s perspective should be a rare and valuable asset to the UN Commission, if
they conduct themselves in a more open-minded fashion than the disastrous
Goldstone farce.
Colonel Kemp reported to the UN panel that he was in Israel
for much of the 2014 conflict, specifically from July 14 to August 8, and again
from August 27 to September 5. During these periods he met, questioned, and was
briefed by many IDF officers, regular soldiers, and Israeli government officials
and political leaders. He spent a considerable amount of time at the Gaza
border where he questioned soldiers both before and immediately after they had
been in combat.
Regarding the conflict, Kemp opined that the actions taken
by the IDF were essential to defend the people of Israel from the sustained,
intensive and lethal rocket, mortar and terrorist attacks by Hamas and other
armed groups in Gaza on the Israeli population.
Kemp told the Commission, “I know of no other realistic
and effective means of suppressing an aggressor’s missile fire than the methods
used by the IDF, namely precision air and artillery strikes against the command
and control structures, the fighters and the munitions of Hamas and other
groups in Gaza. Nor have I heard any other military expert from any country
propose a viable alternative means of defense against such aggression.
The only other military options, which I do not consider
realistic in these circumstances, would have been either the strategy of
carpet-bombing to force Hamas to desist, or a large-scale ground invasion to
find and destroy Hamas and other groups. Either of these means would have
resulted in far greater civilian casualties as well as a greater loss of
Israeli soldiers.”
Turning to the Laws of Armed Conflict, Kemp reminded the
Commission members that the Hamas military and command infrastructure was
embedded among the civilian population in Gaza making civilian casualties
unavoidable when attempting to neutralize the threat. However, under the Laws
of Armed Conflict this fact does not render counter operations illegal due to
their necessity. This said, Israel had a duty to distinguish between legitimate
military targets and civilians and to ensure that operations were conducted in
accordance with the principles of proportionality and necessity.
Kemp pointed out that proportionality is not, as often
believed by critics of Israel, a relationship between the number of casualties
on either side in a conflict, but rather a calculation as to whether civilian
loss of life, injury or damage relates directly to the military value of a
target for attack.
Colonel Kemp advise the panel that, from his personal
research, which included briefings, interviews with Israeli legal, military and
political leaders, the key Israeli figures share the ethos and operating
principles that govern proportionality and legal accountability post-conflict,
and that Israel’s military and civilian legal systems are widely respected by
international legal authorities.
Comparing it with British and American armies, Kemp said
that IDF rules of engagement keep the IDF soldier within the laws of armed
conflict by a significant margin. This includes restrictions imposed on the IDF
soldier to ensure the legal of his actions during battle. Soldiers told Kemp
that they understood and accepted the need to adhere to the rules of engagement
and did so in the 2014 conflict. Kemp added that many soldiers told him that
not only were they not permitted to kill, harm or mistreat innocent civilians
but that their own morality prevented them from doing so.
This applied also to IDF pilots. One pilot told Kemp that he
had attempted eleven times to attack a Hamas target but had aborted the mission
due to the presence of civilians close to his target zone. The pilot told Kemp
that whatever the rules of war he couldn't live with himself had he knowingly killed
innocent civilians.
As a close witness at the time of conflict, Kemp confirmed
that, from his twenty nine years’ experience with soldiers, he was certain the
soldiers he met spoke honestly and from the heart and were not deceiving him.
As a pointer to the quality of the Israeli soldier,
Kemp told the panel, “My observations during the 2014 Gaza conflict confirm
that no other army that I have served in or alongside or that I have studied
and researched has yet taken such extensive precautions. This includes British
and US forces. It is in part due to the specific circumstances of the Gaza
conflict, which allow the IDF to go to such lengths whereas other armed forces
in other circumstances may not be able to do so.”
In confirmation of his claim, Kemp quoted General Martin
Dempsey, Chairman of the US Joint Chief of Staff who, in November 2014, said
that the IDF “went to extraordinary lengths to limit collateral damage and
civilian casualties during the 2014 Gaza conflict.”
In a further boost to the reputation of the IDF’s code of
conduct, Kemp informed the Commission that General Dempsey had sent a
delegation of UK military officers to Israel following the conflict to learn
about the measures taken by the IDF to prevent civilian casualties.
Kemp told the panel that he had been informed that the first
item of the day at every meeting of the Israeli security cabinet meetings was
Palestinian civilian casualties, illustrating the priority placed by top
elements of the Israeli government and military echelon.
Colonel Kemp itemized the casualty prevention procedures
implemented by the IDF prior to launching an attack on Gaza. At least two
separate intelligence sources must verify that it was a legitimate military
target. Such intelligence included human sources, aerial and ground
surveillance and communication intercepts. Each aerial attack mission had to be
personally authorized by the Commander of the Israeli Air Force of one of his
deputies, at least one of whom had to be present in the operations center
throughout the conflict. Authorization for a mission was also subject to legal
advice. In order to confirm whether civilians were in the target area
surveillance had to be conducted by both manned and unmanned aircraft. If
intelligence confirmed or suspected the presence of civilians, one or more of a
series of measures needed to be implemented to warn civilians before an attack
could go ahead. These measures included dropping leaflets, broadcasting radio
message, phone calls and text messages, even warning them via United Nation
sources, that an attack was imminent.
Beyond these extraordinary measures, the
IDF sometimes launched a specially designed air-dropped harmless munition that
made a loud percussion noise to warn people inside a building of an impending
attack. Further surveillance was conducted to confirm that civilians had left
the target area. If they had not the attack would not be executed until they
had. Even if a pilot was authorized to attack a target he had the authority to
abort the mission if he had reason to believe that civilians were present in
the area. Kemp added that Israeli pilots using laser-guided missiles were
required to identify a safe open area to advance of a strike so that, if
civilians were identified even at that late stage the munition could be
diverted in flight to a safe zone.
Kemp went on to explain that, even with all these
precautions, there are circumstances in warfare when such steps could not be
followed citing an air operation in support of ground troops under attack or in
danger.
Kemp advised that any military commander must minimize the
risk of civilian casualties but he must also minimize the risk to his own
forces for reasons a responsibility, morality, and combat effectiveness against
the enemy. This factor is overlooked, he said, when investigating human rights
issues in a conflict, but every military commander must take the well-being of
his soldiers when calculating necessity and proportionality into his
decision-making. This consideration is an important factor that affects the
extent of civilian casualties in ground combat, including in Gaza, and it
sometimes leads to increased casualties in a war zone.
Other factors to consider, Kemp informed the Commission, are
the inaccuracy of ground combat systems, and the chaos confusion, smoke, noise,
enemy fire, disorientation, sensory distortion, exhaustion, pain, and
destruction that can cause ordinary soldiers to make mistakes. Equipment
malfunctions, weapon guidance system failures, computers fail, surveillance
fail, communications fail and explosives act aberrantly, all contribute
inadvertently to civilian casualties, especially in urban warfare.
Kemp insisted that, with the best will in the world, there
are intelligence failures, pointing to potential cases where IDF officers
believed an area was clear of civilians, or where soldiers believed that
civilians were fighters, particularly in Gaza where enemy combatants did not wear
uniforms or distinguishable military wear.
“None of these things are inherently willful and
therefore unlikely to be criminal in intent. Anybody who doubts the relevance
of these factors need only consider friendly fire incidents that occur on
virtually all battlefields even with 21st Century technology. A
number of IDF deaths were caused by friendly fire during this conflict. It is
hardly likely that these would have been deliberate. They were also likely the
result of battlefield conditions, human error, weapon inaccuracy and technical
failure.”
These are the conditions that also cause inadvertent
civilian casualties.
Kemp told the panel that, as with all armies, the IDF may
have bad soldiers but Israel employs the investigative, criminal and military legal
action against offenders and that the system is not exclusively an internal
military affair but that the Israeli Supreme Court oversees the process. He
furthered his point by mentioning that cases are being investigated by Israeli
authorities and that the Military Advocate General of the IDF has ordered a
number of criminal investigations into certain actions and that more may
follow.
Coming on to the Iron Dome missile defense shield, Kemp said
that it had not only saved hundreds, if not thousands, of Israeli lives but
that it had also saved many more Palestinian lives, claiming that the massive
Israeli casualty figures and mass destruction that would have occurred without
Iron Dome would have forced Israel to take much stronger measures against the enemy,
including a major ground offensive. This would have resulted in much more
civilian damage in Gaza.
Colonel Kemp discussed the Gaza casualty figures with the
Commission. I know from meeting and comparing figures and statistical
information with him during the conflict, that he was closely following and
dissecting the numbers.
He told the panel, “Of all the civilians who died
during the conflict, some died of natural causes, some in accidents not related
to the fighting, other were reportedly executed or murdered by Hamas and other
groups and still others were killed accidentally by Hamas missiles that were
intended to kill Israeli civilians but fell short and landed in Gaza.”
Richard could have added civilians who were killed in the
crossfire between the two sides, or those killed in Hamas booby-trapped
buildings.
Kemp quoted the meticulous statistics of the Meir Amit
Intelligence and Terrorism Information Center which estimates that
approximately 48% of casualties were civilians based on systematic analysis of
information, and not on hearsay.
Civilian casualties are a media-filled, emotive issue. This
was given far more coverage in Gaza than any other global conflict. However, a
sense of reason and proportion is required. Kemp recommended that the Commission
examines the ratio of civilian to combatant casualties in other comparable
conflicts. Although accurate information is hard to obtain, the UN
Secretary-General has estimated that, on average, the ratio of casualties in
such conflicts is 3 civilians for every combatant.
Kemp claims that, in
Afghanistan where he served, the ratio is estimated at 3:1 and that, in Iraq
where he also served, the ratio was 4:1.
Other studies claim a far higher civilian casualty rate in these and
other conflicts. In Gaza, on the other
hand, the civilian casualty rate was less than one civilian to every combatant,
making it far lower than any similar war zone, despite the density of the
fighting environment.
Kemp turned to the conduct of Hamas in the 2014 conflict
which they imposed both on Israel and the Gazan civilian population by
initiating the fighting.
“I witnessed what I believe to be a series of war crimes
and planned war crimes by Hamas and other Gaza groups, both by missile attacks
against civilians and by construction of attack tunnels from which to kill and
abduct civilians. I am also aware of, but did not witness, Hamas and other
groups using their own civilians as human shields.
I know of the deliberate policy of using human shields,
including women and children, by both Hamas and Palestinian Islamic Jihad. I am
aware of this as a result of my previous British government work involving
secret intelligence on these groups, from public statements made by the Hamas
leadership on a number of occasions since the 2008/09 Gaza conflict, from media
reports including film footage showing such actions, and statements by
individuals forced to remain in declared target areas, from publications of
training manuals found in Gaza by the IDF and from debriefing of IDF personnel
and journalists. From the same sources I am also aware of Hamas’s use of
buildings and vehicles protected under the Laws of Armed Conflict including
schools, hospitals, UN buildings, mosques and ambulances. Use of such
facilities for military purposes constitutes a war crime.”
He went on to describe what he witnessed in an terror attack
tunnel which ran from Gaza into Israeli territory which emerged a few hundred
meters from an Israeli civilian community for the purpose to attack, kill, and
abduct Israeli civilians and soldiers.
I personally observed 19 separate missile attacks, some
involving multiple missiles, fired at Israeli populated centers. Hamas does not
possess the capacity to carry out precision attacks using missiles. Therefore,
these attacks were all indiscriminate and, therefore, unlawful under the Laws
of Armed Conflict… My own life, as a visitor to Israel, was also in danger
during many of these attacks.”
Colonel Kemp itemized the date, time, location and what he
observed of each of the nineteen missile attacks. He spoke of the final attack he experienced
with this anecdotal evidence;
“I was on board a plane at Ben Gurion International
Airport on August 8th at 7.15 a.m., when flying was suspended as a
result of rocket fire, in violation of a ceasefire.”
Describing the effect of these rocket attacks on Israeli
civilians he explained, “I witnessed the trauma and fear for their lives
that was deliberately imposed by Hamas and other groups on innocent Israeli
civilians, men, women, children and old people, as well as visitors from
outside the country. I also witnessed the daily disruption to daily life caused
by these attacks.”
He told the Commission of visiting the Ashkelon home and
consulting rooms of an Israeli doctor shortly after it had sustained a direct
hit from a rocket fired from Gaza. The waiting room was usually full of
children receiving treatment. Fortunately not children were present at the time
of the attack but the 17 year old daughter barely made it to the secure room when
the missile exploded in the house throwing blast and debris into the room where
she had been seated.
Colonel Richard Kemp stated that the IDF “took
exceptional measures to adhere to the Laws of Armed Conflict and to minimize
civilian casualties in Gaza. During the conflict many politicians, UN leaders,
human rights groups and NGOs called on Israelis to take greater action to
minimize casualties in Gaza. Yet none of them suggested any additional ways of
doing this. I conclude that this was because Israel was taking all feasible
steps.
I believe that Israel to be world leaders in actions to
minimize civilian casualties; and this is borne out by the efforts made by the
US Army, the most sophisticated and powerful in the world, to learn from the
IDF on this issue.
In my opinion, Israel is also making strenuous efforts to
investigated incidence where civilians were apparently unlawfully killed,
wounded or ill-treated, and where civilian property was unlawfully damaged or
stolen. I am not aware of any nation that has conducted more comprehensive or
resolute investigations into its own military activities than Israel during and
following the 2014 Gaza conflict.
On the other hand, Hamas and other groups in Gaza took
the opposite approach to that of the IDF. Their entire strategy was based on
flouting the Laws of Armed Conflict, deliberately targeting the Israeli
civilian population, using their own civilians as human shields and seeking to
entice the IDF to take military action that would kill large numbers of Gaza
civilians for their own propaganda purposes. There was and is no accountability
or investigation of any allegations against Hamas and other extremist groups in
Gaza.
I strongly urge the Commissioners to condemn Hamas and
the other groups for their actions during this conflict.
False accusation of war crimes, as were made by the
Commissioners that investigated the 2008-09 Gaza conflict (the Goldstone
Report) will do nothing to advance the cause of peace and human rights.
Instead, such accusations will encourage similar action by Hamas and other
groups in the future, leading to further violence and loss of life.”
Colonel Richard Kemp wrapped up his submission thus;
“Many people believe that your findings are a foregone
conclusion, as the findings of the 2008-09 Commission regrettably proved to be.
They believe that you will roundly and without foundation condemn Israel for
war crimes while at best making only token criticism of Hamas and other Gaza
extremist groups. If you genuinely want to contribute to peace and to improve
human rights for the people of Gaza and of Israel then you must have the
courage to reject the UN Human Right Council’s persistent and discriminatory
anti-Israel program and produce a balanced and fair report into these tragic
events.”
Barry Shaw is the Special Consultant on Delegitimization
Issues to The Strategic Dialogue Center at Netanya Academic College . He is
also the author of the upcoming book ‘Fighting Hamas, BDS and
Anti-Semitism.’