Colonel Richard Kemp urges the UNHRC to have the courage not to be anti-Israel. Hamas are the criminals.

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 21^st 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 8^th 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.’