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.
Pede and Hayden, throughout their article, insisted that they were not disputing the importance of the laws of war. The problem, they argued, was that the laws’ comparatively minimal obligations had been conflated with the far more restrictive set of precautionary measures the U.S. military has followed as a matter of policy. That policy was discretionary, and it would be impossible to sustain in an L.S.C.O. situation; it could even be fatal. For the military lawyers, the crucial point was for American soldiers to understand that the law didn’t require them to try. “If we are to win on Battlefield Next, we must be ready to fight with the law that is, not the law as some would wish it to be,” they wrote.
After the publication of “The Eighteenth Gap,” a flurry of other articles, speeches, blog posts, and conferences followed, rehashing its argument—that the U.S. military would need to operate under a less restrictive set of rules in an L.S.C.O., and that the laws of war were sufficiently permissive to allow for that.
As military leaders and legal experts zeroed in on the details, a loose program took shape. Generally, L.S.C.O. lawyers called for delegating more authority to commanders in the field to kill independently. In the fast-moving combat expected in an L.S.C.O., soldiers would have to decide for themselves, without legal counsel and without clearance from up the chain of command, what they could target, what weapons they could use, and whether expected civilian casualties were acceptable. This would mark a departure from recent U.S. military practice, where members of the jag corps have often worked side by side with commanders to make targeting decisions, and where strikes expected to harm civilians have typically undergone a review. L.S.C.O. lawyers also argued that targeting decisions made by commanders should be evaluated only by the subjective test of “good faith.” Imposing a higher standard could put soldiers in jeopardy, because they would be afraid that they might need to produce evidence to justify firing their weapons.
In all of these arguments, the prospect of a full-scale war functions as a pressure test. The laws of war are premised on the possibility of a compromise. They are supposed to strike a balance between humanitarian concern and military necessity. That is an immensely fraught proposition, but its contradictions fade away when you envision yourself surrounded by a blur of steel, ocean spray, and explosions. If a war between the United States and China were to erupt in the Taiwan Strait, the necessity of winning would be almost absolute. From that vantage, L.S.C.O. lawyering can be seen as an effort to preserve legal compliance and humanitarian considerations even under the most extreme conditions.
The practice of writing about the laws of war in L.S.C.O. might be seen as a form of escapism. More than two decades after its invasion of Afghanistan, the United States is still engaged in a number of armed conflicts, all of them asymmetrical. In these, the enemy is not a standing army but various terrorist organizations and looser categories of hostiles, enmeshed in large civilian populations. To focus one’s attention on the bare minimum that the laws of war require in extremis is a way to avoid the vexed moral and political problems of the past wars, which America is very much still fighting.
When the campaign in Gaza began, I.D.F. leadership issued a broad directive that vastly expanded its target list, loosened restraints on civilian casualties, and conferred greater authority on mid-rank commanders to strike targets independently—roughly the L.S.C.O. legal playbook.
A recent video, taken in April, demonstrates how permissive the I.D.F.’s rules of engagement became. In the clip, a battalion commander for the I.D.F. instructs a group of soldiers who are preparing for a hostage-rescue operation in Rafah. “Everyone you encounter is an enemy,” the commander tells his troops. “If you see anyone, open fire, neutralize the threat, and keep moving.” Less than two weeks earlier, soldiers from the same brigade, operating under a reserve commander, killed fifteen Palestinian aid workers and buried their bodies in a mass grave.
An I.D.F. spokesperson initially claimed the vehicles the workers drove were “advancing suspiciously” without headlights. I.D.F. sources told Haaretz that the soldiers had felt their lives were in danger. A video later discovered on one of the aid workers’ cellphones revealed the I.D.F.’s account to be a fabrication. In the video, a convoy of clearly marked ambulances and a fire truck move along a dirt road. They pulled over to inspect a vehicle that had veered off the road into a field. As an internal I.D.F. investigation revealed, this was another ambulance that a battalion of Israeli soldiers hiding about one hundred feet away had fired upon a few hours earlier. In the cellphone video, you can see several of the newly arrived aid workers get out of their vehicles, with the emergency lights flashing. Then gunfire erupts. The video goes black, but the camera continues to record. The gunfire lasts for several more minutes. Soldiers can be heard nearby shouting orders in Hebrew. At the same time, you can also hear the voices of aid workers who were still alive. A little over ten minutes after the cellphone video cut off, yet another vehicle arrived on scene, this one from the U.N. For a third time, the I.D.F. battalion opened fire, killing the driver.
The footage suggests these killings were a war crime. No L.S.C.O. lawyer would argue they are acceptable. But the deference that I.D.F. leaders have shown for the soldiers’ account of the killings is in line with the “good faith” standard L.S.C.O. lawyers advocate. The I.D.F. said in a statement that the incident was the result of “several professional failures” and dismissed the battalion deputy commander for giving inaccurate information. He was blamed for going off mission, and putting his unit and others in the field at risk. But, the I.D.F. has tacitly accepted his claim that he believed his soldiers were shooting at Hamas. They maintain that his battalion “did not fire indiscriminately.” In other words, they committed three mistakes in a row—not a war crime.
In reading through various accounts of the conflict written by American L.S.C.O. lawyers, it is striking how little is made of the incongruity between Israel’s tactics and military necessity—particularly given the asymmetrical nature of the conflict between Israel and Hamas, in which the former has a vast advantage in technology and firepower. Last year, former Lieutenant General David Deptula, after having been led on a tour of Rafah by the I.D.F., wrote that, from his observations, Israel was “using the right force, at the right place, at the right time.” The jinsa report that Corn co-authored provided a more nuanced, albeit legally idiosyncratic, analysis. While a large section of the report is spent emphasizing the I.D.F.’s efforts and ability to mitigate civilian harm, the authors concluded that Israel is under little legal obligation to do so. This is not because of the military threat that Hamas poses, but because of Hamas’s “motivation and intent.”
The most telling detail in reports like these, though, is the tendency to frame Israel’s main problem as a public-relations issue. “We believe the I.D.F. has fulfilled its legal obligations to provide humanitarian access and assistance to Gazan civilians,” the jinsa report reads. “At the same time, we acknowledge the strategic legitimacy of Israel’s campaign has been compromised by the perception of indifference to the humanitarian suffering in Gaza.” A current member of the jag corps, Major Joseph Levin, put a finer point on it. “The lesson for America in the Israeli-Hamas conflict is that a democratic nation with power overmatch that is achieving consistent tactical victories still risks strategic defeat when its enemy effectively uses cognitive warfare to undermine public support,” he wrote in Military Review.
A couple of months ago, Secretary of Defense Pete Hegseth fired the judge advocate generals of the Army, Navy, and Air Force—ridding each branch of its highest-ranking legal officer. One of these was Lieutenant General Joseph Berger, who had recently published an article commending “The Eighteenth Gap” and endorsing many of the reforms L.S.C.O. lawyers have championed. On Fox News, Hegseth described Berger and the other judge advocate generals as willful “roadblocks.” For Hegseth, who has been a vocal proponent of a “warrior ethos” and has referred to military lawyers as “jagoffs,” it seems that Berger’s embrace of L.S.C.O. lawyering hadn’t gone far enough.
I spoke to Geoffrey Corn shortly after these firings. He worried that Hegseth was fashioning a military culture in which war crimes might go unpunished. “If leaders of the United States think that they can wage war with indifference toward the rules of I.H.L. or loac or whatever we want to call it, they’re going to learn very quickly how easy it is to win a battle and lose a war,” he said.
Corn mentioned he had never shot anyone while he served, but knew other soldiers who had. He’d asked them, Were they O.K.? “When you have to do something as part of your duty that is incredibly unpleasant, knowing that you followed a widely understood and respected rule set helps you live with the consequence of those actions.”