This past July, Geoffrey Corn, a law professor at Texas Tech and a former judge advocate general in the U.S. Army, joined the Israel Defense Forces on a tour of the Rafah border. Within hours of Hamas’s attack, on October 7th, 2023, Israel began bombing Gaza. But until May, 2024, just a couple of months before Corn’s latest visit, the city of Rafah remained relatively intact. The site of the only border crossing with Egypt, Rafah was already one of the most densely populated cities in Gaza, packed further by the flight of Palestinians from the north. In February, when it became clear that the I.D.F. was planning to invade Rafah, it was estimated that 1.5 million people were living in the city.
World leaders and various organizations lobbied Israel not to go through with the incursion, including President Biden, who, on the eve of the I.D.F.’s attack, called Rafah a “red line.” The I.D.F. moved forward anyway, even as the International Court of Justice (I.C.J.) ordered Israel to “immediately halt its military offensive.” By July, when Corn surveyed the area, Rafah was largely rubble. “It looked like Berlin after World War Two,” he told me. “And, if all you do is look at that, you say, This can’t be right.”
Corn, at the height of his military career, was the U.S. Army’s senior adviser on the laws of war, also known as international humanitarian law (I.H.L.), or the law of armed conflict (LOAC). Corn brought up Berlin as a metric for the level of urban destruction he saw, but he was also, perhaps inadvertently, recalling a watershed moment in international law. The Second World War was the first armed conflict in which air power made the bombing of civilians possible at a massive scale. Military leaders pushed those possibilities to hellish extremes, following the logic that killing civilians might induce surrender. It wasn’t until the Additional Protocols of the Geneva Conventions were adopted, in 1977, that an international agreement explicitly prohibited the intentional targeting of civilians. (The United States has not ratified these protocols, but it has incorporated the basic rules of civilian protection into the Department of Defense’s Law of War Manual and treats them as customary international law.) And it wasn’t until the International Criminal Tribunal for the Former Yugoslavia, which began in 1993 and in which Corn served as a defense witness, that an international court had ever tried someone for violating this prohibition.
The war in Gaza has played out under this relatively young international legal regime. At the Rafah border, I.D.F. intelligence officers showed Corn surveillance videos that he says demonstrated Hamas activity in the area before the I.D.F. offensive commenced. The suggestion was that the destruction he saw was not the product of an indiscriminate assault and that the laws of war had been upheld. Hamas’s use of civilian buildings transformed those sites into “military objectives,” Corn said. The civilians killed were not targets but “incidental deaths.”
The claim that Israel has adhered to the laws of war is extremely contentious. There is the genocide case at the International Court of Justice, as well as the arrest warrants the International Criminal Court issued for Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant, for alleged war crimes and crimes against humanity. Numerous experts have accused Israel of flouting the laws of war, including Francesca Albanese, the U.N. special rapporteur on the Occupied Palestinian territories, who argued that Israel had weaponized international humanitarian law as “ ‘humanitarian camouflage’ to legitimize genocidal violence.” This was done “by deploying IHL concepts such as human shields, collateral damage, safe zones, evacuations and medical protection” to erode “the distinction between civilians and combatants.”
Israel has contested these claims in hearings at the I.C.J., and an array of institutions have echoed the defense. Corn’s trips to the region arose from these efforts. Besides the July visit, he also travelled there in March, 2024, with a group of retired three- and four-star generals, on a trip sponsored by the Jewish Institute for National Security of America, or JINSA. The report he subsequently co-authored with the other members of that delegation found that the I.D.F.’s implementation of civilian-risk mitigation “reflects a good-faith commitment” to comply with the laws of war, whereas Hamas acted as a pervasive and intentional violator of the law. Corn, when we spoke on the phone in late February, argued that despite the visceral nature of the destruction, which even he was struck by, the charges levelled against Israel were hasty. He was adamant that the legality of an attack cannot be judged based just on its outcomes: “That’s like me saying one plus I-don’t-know is obviously ten.” A destroyed school does not tell you whether war crimes took place. For that, he said, you need to examine the decision-making that led to the strike. “I’m not going to say that all of the damage was necessary or justified, because I don’t have enough information to say that,” Corn continued. “What I can say is that the systems and processes that the I.D.F. implemented are very similar to what we would implement in a similar battle space.”
This idea, that Israel’s conduct in Gaza is in line with the U.S. military’s understanding of its own legal obligations, has become the general consensus among American military lawyers and their allies in the academy in recent years. That is the argument at the heart of a new paper by Naz Modirzadeh, a professor at Harvard Law School and the founder of its Program on International Law and Armed Conflict. As Modirzadeh writes, in a forthcoming issue of the Harvard National Security Journal, the U.S. government has been evasive about whether Israel has violated the laws of war. Where some have seen hypocrisy and geopolitical calculation, credit for this should also be given to “a deeper transformation within the U.S. military and its legal apparatus.”
In the past several years, the Department of Defense has become fixated on how the United States might fight a major war against an enemy that rivals the American military in force and technology. In such a scenario—known as a large-scale combat operation, or L.S.C.O.—combat would take place across land, sea, air, and into the thermosphere. Command of the air could not be taken for granted. Intelligence may be spotty. Casualties could soar into the hundreds of thousands, and whole cities could be flattened. “In short,” Modirzadeh writes, the U.S. military has begun “preparing for an all-out war with China.” And, with such conflagrations burning in the mind, “LSCO lawyers,” as Modirzadeh calls them, have been arguing that the laws of war are far more permissive than many of their peers and the public seem to appreciate. From that vantage, Gaza not only looks like a dress rehearsal for the kind of combat U.S. soldiers may face. It is a test of the American public’s tolerance for the levels of death and destruction that such kinds of warfare entail.
In 2018, as Trump imposed his first tariffs on Chinese goods, the new National Defense Strategy declared that competition with China and Russia—“not terrorism”—was the principal concern for national security. With that signal, the hulking bureaucracy of the U.S. military began to reorient itself, shifting the defense budget, training manuals, weapons contracts, and military strategy to focus on the Pacific theatre. The concept of L.S.C.O. took off in these years. By one account, the term was first mentioned in official Army doctrine in 2017. By 2022, the updated Army Field Manual 3-0, Operations used the term L.S.C.O. more than a hundred times.
Modirzadeh locates the origins of L.S.C.O. lawyering within this trend. She credits a 2021 article titled “The Eighteenth Gap” that was published in The Military Review. Its authors were Lieutenant General Charles Pede, who was the Army’s highest-ranking legal expert at that time, and Colonel Peter Hayden, another military lawyer. (Both are now retired.) The title is a reference to a 2017 study from the Army’s Combined Arms Center, which laid out seventeen gaps in the force’s preparedness as it shifted its focus from counter-insurgency and counter-terrorism to a possible conflict with a technologically advanced military. To that list of seventeen, Pede and Hayden suggested adding one more, a gap in “legal maneuver space.”
The U.S. military, as the authors framed it, had practiced an exceptionally restrained form of warfare for the past twenty years. This was possible because of a specific set of circumstances—secure bases, technological superiority, command of the air and the seas—which allowed for a style of unhurried killing that reached its apex with drone strikes. From a terminal far out of harm’s way, drone pilots could hover in the sky for hours, soaking up surveillance information, building a case for precisely whom to bomb and when to do it. But, as Pede and Hayden saw it, all this restraint had conditioned both American troops and the public to believe this level of restraint was the norm. We were suffering, they wrote, from a counter-insurgency “hangover,” one that threatened the U.S. military’s preparedness for a full-scale war. In training exercises that simulated large-scale combat, soldiers were hesitant to fire certain ordnances, unsure whether they had the clearance to make that call themselves. Observing officers also noted a “general aversion to collateral damage risk.”
More confounding for Pede and Hayden was the “threat” coming from outside the armed services. Into the last decades of the twentieth century, the laws of war were almost exclusively the domain of military lawyers and humanitarians at the Red Cross. But, in the nineteen-eighties, Human Rights Watch began monitoring armed conflicts for compliance. Other N.G.O.s soon joined in, and, once the war on terror got under way, a whole knowledge industry sprang up around the laws of war. Civilian academics began studying I.H.L. alongside other bodies of international law, and journalists used the laws of war to scrutinize U.S. military actions, particularly those which led to civilian deaths. Describing this shift, Kenneth Roth, a former director of Human Rights Watch, said that militaries had “lost their monopoly over the interpretation” of the laws of war. Pede and Hayden called it “humanitarian legal creep.” For them, the U.S. military’s critics were “well-intentioned” but callow, with no authority to determine what counted as a military target and the means by which soldiers could destroy such targets.
