The Settling of the United States from the Perspective of its Victims

[Cover of Roxanne Dunbar-Ortiz, \"An Indigenous Peoples’ History of the United States\"] [Cover of Roxanne Dunbar-Ortiz, \"An Indigenous Peoples’ History of the United States\"]

The Settling of the United States from the Perspective of its Victims

By : Max Ajl

Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States. Boston: Beacon Press, 2014.

The Acoma poet Simon Ortiz writes in From Sand Creek that “the future will not be mad with loss and waste though the memory will.” People will not forget their past, but that should not stand in the way of change. Ortiz adds, “Be there: eyes will become kind and deep, and the bones of this nation will mend after the revolution.” Ortiz’s words are an invitation—an appeal for a shared struggle. They are the coda to the historian and activist Roxanne Dunbar-Ortiz’s superb new book, An Indigenous Peoples’ History of the United States. With such words, she reveals much of her purpose.

As the book begins, she writes of how beneath the lands that some identify as the United States are “interred the bones, villages, fields and sacred objects of American Indians.” How that internment happened is the subject of her book, which is meant to teach the books’ readers that history—“a necessity and a responsibility to the ancestors and descendants of all parties.” She sets out by explaining the frameworks she does not use. First, she rejects a “cultural conflict” interpretation within which the Native nations and the European settlers waywardly wandered into some squabbles about culture. Then, she dismisses a now-fashionable optic whose lens induces a myopic fixation on agency. As she notes, that way of seeing screens out the structure, or the system of power, within which subjects are forced to assert their agency. Indeed, she hints that such frameworks, for all of their good intentions, have the faint air of revisionism. The agency of the Native communities annihilated by plague and superior European weaponry was far too frequently to encounter genocide. And genocide is not a negotiation or a dialogue. It is an atrocity, one raising questions of “reparations, restitution, and reordering society.”

To raise questions of reparations is to talk of a crime whose scale can be reckoned with in terms of—but not at all reduced to—monetary units. Dunbar-Ortiz insists that colonialism is about stealing from others, especially that all-important resource, land, without which there is no life. For that reason the endlessly abrogated treaties the Indian nations signed with the United States were always about land: who owned it, where, and under what terms. Indeed, lately even those treaties are under assault as multinational corporations seek to gain control of the riches in Native subsoil.

Dunbar-Ortiz’s story begins with the pre-contact civilizations in the Americas and especially the United States of America. She presents a full world: its cosmology, agricultural systems, mathematical innovations, and architectural wonders. She ranges from modern-day Mexico to the lands that used to be Mexico in the Southwest of the United States, to the great prairie peoples, and further east. She describes Native political systems and the political ecologies, which the native peoples had made—highlighting the creation of “game farms” on which herds of buffalo could graze. This analysis will be well-known to the student of Native studies. But she is strategic in her task. She is telling the reader about the world that colonialism ripped apart.

She then situates colonial expansion in the Americas in a longer historical arc of European state-formation, displacement of the peasantry, and conquest. She ranges from European military expeditions to the Middle East to the rise of the modern European-state system in the crucible of constant feudal warfare. She braids this with a historical analysis of the origins of white supremacist ideology in attempt to build a “cross-class mind-set…[a] class leveling based on imagined racial sameness.” She roots this project first in the Christian expulsions of Jews and Muslims from the Iberian Peninsula, and traces it through colonialism in the Americas and Africa, and then on to the Holocaust. She then traces that brutality onwards to British settler policy in Ireland, and then on to the colonial expansion to the Americas.

Little escapes Dunbar-Ortiz’s scope. If Europeans were settlers, as many indeed were, the European peasantries were also the victims of a vicious and avaricious project of state-formation. That process saw the European gentry wage wars against the peasants and their communities. Later, it would tear them apart with witch-trials that targeted those communities’ repositories of knowledge: their older women.

A subsequent chapter deconstructs ideological portraiture of the “pristine wilderness” supposedly predating the Columbian encounter. Dunbar-Ortiz emphasizes that early colonial survival in the Americas depended on the infrastructure whose population the settlers had destroyed, an infrastructure they could then grab for their own use. She then traces the settler invasion as the “frontier” moved ever-further West. But those who initially settled the land lost it on that great veiled machine for concentrating wealth, the market. As she writes, the ultimate beneficiaries were the “English patricians, slave owners, large land barons, or otherwise successful businessmen dependent on the slave trade.” They were distinct from the settler-class who were the “dispensable cannon fodder” for continental expansion.

Dunbar-Ortiz then shifts through space and time, highlighting rhetorical parallels as the US army names its “killing machines and operations with such names as UH-1B/C Iroquois, OH-58D Kiowa, OV-1 Mohawk,” and others. She links the ways of contemporary war to the total war through which US colonial forays “sought to disrupt every aspect of resistance,” a practice which the military carries into the present. She suggests that this annihilatory drive, “the out-of-control momentum of extreme violence of unlimited warfare,” in turn “fueled race hatred”—not the other way around.

She then teases out some of the complexities of US racism. She discusses Bacon’s Rebellion, a well-known episode within which “Anglo settler-farmers along with landless indentured servants,” both “Anglo and African…took into their own hands the slaughter of Indigenous farmers with the aim of taking their land.” She then correctly notes that the threat of lower-class peoples banding together provoked the Virginia law that “made greater distinction between indentured servants and slaves and codified the permanent status of slavery for Africans.” Here she so skillfully lays out not merely the origins of racism in a very structural distribution of power, but also the history of colonial dispossession without which the picture remains partial.

Dunbar-Ortiz then moves on to the series of wars, ethnic cleansings, and massacres that set the stage for the independence of the Thirteen Colonies. She highlights the rise to prominence of treaty-making as a key tool of colonial dispossession. She roots expansion in the hunger for land: “owners of large, slave-worked plantations sought to expand their landholdings while small farm owners who were unable to compete with the planters and were pushed off their land now desperately sought cheap land to support their families.” She then moves on to narrating a series of colonial conquests. She offers brilliantly crisp and compact portraits of each one. She shows a cycle of colonial advance, the demand for surrender, and then, if the Indigenous nations refused (as they often but not always did), violent attack. A succession of treaties crystallized the violence of colonial expansion in terms legible within the Lockean system of Western jurisprudence, clarifying who had property rights and where. Within each treaty’s white-and-black letters, she suggests, is concealed the scarlet history underlying each and every one of them.

Dunbar-Ortiz then moves on to the continental aspects of US expansion, especially the campaign through which much of what used to be Mexico was added to what is now identified as the United States’ Southwest. She traces through the words of Walt Whitman a deep and abiding racism: “What has miserable, inefficient Mexico…to do with the great mission of people the New World with a noble race?” he asked. Then, before getting on with the telling of the US invasion of Mexico, she brings the reader on several detours, highlighting the Haitian liberation struggle and Latin American leaders Simon Bolívar and José de San Martín. Only at this point does she set out to tell the story of the US acquisition of Mexico, showing the interest of “US merchants” in the “potential profits to be made,” which “inspired them to set out to capture that trade,” often from fur. In highlighting the role of the profit system in driving settler expansion, she also looks to the role of elites outside of the United States in abetting serial processes of annexation.

Dunbar-Ortiz once again shows the political centrality of colonialism as she discusses Abraham Lincoln’s proposal for “free soil” for the settlers who demanded that the “government ‘open’ Indigenous lands west of the Mississippi” to colonial expansion. She then quickly delves into the sociology of the Indigenous nations of the Southeast that were forcibly relocated to “Indian Territory” (now Oklahoma). She points out that within each there was a “tiny elite,” which was “wealthy and owned enslaved Africans and private estates,” while there was a poorer majority who “continued their collective agrarian practices.” These southeastern nations all made treaties with the Confederacy, but there was a “clear division based on class,” with a “wealthy, assimilated, slave-owning minority that dominated politics” and favored the Confederacy. Meanwhile, the remainder wished to stay out of the conflicts. The colonial question was crucial, but it did not exclude other questions and other cross-cutting lines of division.

Elsewhere, in Minnesota, amidst the ongoing Civil War, in 1862 a drought wracked the Indigenous nations. “When they mounted an uprising to drive out the mostly German and Scandinavian settlers,” the Union Army destroyed the revolt. In writing this specific bit of history, Dunbar-Ortiz makes a very important point, writing against the grain of dominant historiography, with its tendency to turn Lincoln and the Civil War into a crucial part of the national myth. Underneath that myth, underneath all the myths, she uncovers a graveyard that nationalist histories deny even exists, and whose headstones are marked with the dates of colonial massacres.

Subsequent chapters link peacetime colonialism with US imperialism, noting the temporal proximity as the US employed technologies abroad that had been honed in colonial expansion and counterinsurgency at home—a point Richard Drinnon also makes in his Facing West. Dunbar-Ortiz proceeds to link that expansion not with “militarism for its own sake,” a frequent trope of Andrew Bacevich-style imperialist-lite analysis, with out-of-control military Praetors driving the US republic to ruin. Instead, as she writes, “it was all about securing markets and natural resources, developing imperialist power to protect and extend corporate wealth.” She traces this process onwards to the attack on Vietnam and Kennedy’s tellingly-named New Frontier. She then moves on to an important discussion of the resurgence of Indigenous activism in the 1960s, highlighting the “spectacular November 1969 seizure and eighteen-month occupation of Alcatraz Island in San Francisco Bay” by the Indians of All Tribes, an alliance of California Bay-area Native American community members and students. She also discusses the Wounded Knee siege of 1973. That occurred at the site of a 1890 massacre where US cavalrymen had killed over two hundred people in the Lakota Pine Ridge Indian Reservation. The American Indian Movement (AIM) had chosen that location in order to highlight the killings, and to call for the fulfillment of treaty obligations. Government agents attacked the AIM. Dunbar-Ortiz highlights those events as an important turning point in a broader movement for “decolonization”; her account of colonialism does not omit the resistance it provokes.

Dunbar-Ortiz’s book concludes with reflections on the future of the United States. She traces practices of torture and displacement of indigenous populations in places beyond the continental territories, and then points to other horizons. She asks, how “can US society come to terms with its past?” Some answers include: “honoring treaties,” “the restoration of sacred sites,” and the “payment of sufficient reparations for the reconstruction and expansion of Native nations.” Her remedies are collective and structural, not individual and performative. And so right before the poem from Simon Ortiz with which she ends the book, she makes clear—leaving no room for doubt—that she is speaking of a collective process. That effort will require massive education as well as the “full support and active participation of the descendants of settlers, enslaved Africans, and colonized Mexicans, as well as immigrant populations.” There is no place for racialism or the postures or impostors of white guilt in Dunbar-Ortiz’s analysis. It is a call for accountability and then reconciliation through shared struggle—not for reconciliation in lieu of revolution, but for reconciliation through revolution.

The book has the appearance and the intent of a primer, or a general education tool. It is a testament to the skill of a historian who has spent a lifetime perfecting the art of telling stories that Dunbar-Ortiz is able to tell this one with such spare grace. She writes of settler-colonialism, capitalism, social contradictions, imperialism, and genealogies of racism. But she tells of them so cleanly and clearly that without doubt a great many will be able to hear and absorb the book’s message. However, its easy and accessible tone and cadence may allow some to be confused into thinking that it is not “theoretical.” That would be a mistake of the first order. For this is a very deliberately crafted and deeply learned book. It is meant to educate and popularize certain ideas not just about the United States, but also about settler-colonialism and its connections with imperialism and capitalism. It ought to invite not just agreement, but also debate.

In that vein, I have an uncertainty about this important book. I wonder whether it makes sense to lump the very different oppressive processes that produced very different patterns of prejudice d under the rubric of white supremacy. European antisemitism and US slavery were very different social relationships, for example. Neither the continuity of language nor the common origin of the oppressions in Christian capitalist Europe can alone be testament to identical practice.

Speaking of this book’s reception, it seems odd that amidst the sudden effusion of interest in settler-colonialism, this study appears to have made only slight tremors in those sectors of the academy theorizing colonial processes. I am not sure why. Perhaps the history Dunbar-Ortiz presents and the way she presents it seem like something from another era. If settler-colonial studies in the 1960s and 1970s was an analytical tool linked to anti-imperialist and frequently anti-capitalist national liberation movements, Dunbar-Ortiz’s optic must seem like a curio, something from the heyday of Bandung or the Organization of Solidarity with the People of Asia, Africa, and Latin America. Conceptually and methodologically, Dunbar-Ortiz sees and shows settler-colonialism as driven by the internal contradictions of settler-society. She also links US misadventures abroad and at home, emphasizing that the US has always been an empire, amidst its drive westwards across land that was not its own. She insists that what goes on abroad and in the near-abroad is always a result of the inability of domestic institutions to function without that outlet—their need to swell, expand, and engorge. Here one hears the reverberations of the “revisionist” school of US history and its leader, William Appleman Williams. As she makes clear, the result of both territorial and then extra-territorial expansion was massive and pervasive destruction: “Following World War II,” she writes, “the United States was at war with much of the world.” The historical tradition with which Williams was associated is no more, but US wars burn white-hot across the Middle East and elsewhere.

To decolonize means to challenge those wars abroad as well as the structures at home that produce them. Dunbar-Ortiz’s way of looking at the world is indeed a challenge to dominant tendencies within the current wave of settler-colonial studies, where words like class and capitalism appear only infrequently. In its frontal assault on all oppressions, it also has a quiet but sturdy confidence that victory for the oppressed is possible yet. None have attacked her but one worries that she is being ignored. Anyway, either unfair attack or deliberate ignorance would both be unproductive ways of responding to this work. For she has linked indigenous and colonial history to a practical politics. Accompanying that political connection is a wide and deep reading, and a penchant for eloquent, understated, and theoretically informed popular history. Dunbar-Ortiz has given us something both useful and artful, a book that ought to be a reference point for academics and activists alike. It is a work that ought to be reckoned with.

If Israeli Tactics in Gaza Are Legal, No One is Safe: Response to Michael N. Schmitt and John J. Merriam

In their forthcoming paper, The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, Michael Schmitt and John J. Merriam examine Israel’s targeting practices against the Gaza Strip and Lebanon. Their purpose is to scrutinize the context in which these attacks take place as well as the Israeli Army’s relevant legal standards regulating them.

Their findings are based on two visits to Israel in December 2014 and February 2015. During those visits, the Israeli Army granted them:

…unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers. (3)

The methodological approach should raise, at least, a few red flags. Schmitt and Merriam are aware of their problematic methodological approach and write:

Although the approach might be perceived as leading to a pro-Israeli bias, the sole purpose of the project was to examine Israeli targeting systems, processes and norms in the abstract; no attempt was made to assess targeting during any particular conflict or the legality of individual attacks. (3)

In essence, they acknowledge that this entire paper examines what IDF lawyers say rather than what IDF operators do. At best – we should read it as a supplementary report to the Israeli Army’s war manual: it is just theoretical. That may be acceptable, but the authors go on to say:

With respect to the resulting observations and conclusions, note that the authors combine extensive academic and operational experience vis-à-vis targeting and therefore were in a unique position to assess the credibility and viability of Israeli assertions. The result was a highly granular and exceptionally frank dialogue. (4)

So what they tell us at first, that this paper is just “in the abstract,” they also claim is “granular and exceptionally frank.” Moreover, they claim that their combined experience enables them to assess the “credibility and viability” of Israel’s claims. This is an arguably impossible task if they do not assess Israel’s assertions about their practices in comparisons to actual practice. In  fact, the next fifty-some pages read like an estimable apology on Israel’s behalf. The authors accept nearly everything their respondents say, and even what they decline to say, at face-value. The authors assert the authoritative nature of their findings although they do not interview a single Palestinian or Lebanese civilian who has been subject to Israel’s military attacks. They do not even bother to review the reports describing Israel’s operational practices. Several of those reports have alleged that Israel’s practices constitute war crimes. The words “war crimes” appear only twice in the paper: in the titles of articles they cite in their footnotes. Their exceptional reference to Human Rights Watch or Amnesty International reports are primarily to support claims regarding attacks on Israel by Hamas or Hezbollah.

As my colleague and legal scholar on laws of war explained to me, he has become accustomed to reading such reports like an anthropologist. Indeed, the value of this paper is its insightful display of the production of knowledge on national security and counter-terrorism from the US and Israeli metropolises. While this may be reason to dismiss the paper all together, it is also precisely why the paper merits response. Schmitt and Merriam are hardly insignificant. Their tremendous body of scholarship and influence means that their interventions will be taken very seriously and will inevitably bear upon the ways we come to understand, justify, and/or reject the development of the laws of armed conflict. This short piece aims to use three select examples to highlight the methodological shortcomings that give rise to insufficiently tested findings that are emblematic of the paper. For the sake of specificity and fidelity to context, I will focus just on Operation Protective Edge, Israel’s 2014, 51-day attack on the Gaza Strip.

1)      The single most important facet of warfare from Israel’s perspective is the proximity of the threat.”

In this passage beginning on page 5, Schmitt and Merriam discuss the implications of proximity of the threat emerging from the Gaza Strip. They assess that such proximity denies Israel the advantage of “expeditionary force” and, therefore, it must be prepared to fight “…within minutes, and sometimes within view, of their homes.” Conversely, this spatial reality affords Israel the benefit of interior position or, “the virtue of enabling one to concentrate forces quickly and maneuver them in any direction the situation may warrant.”

Schmitt and Merriam discuss the military implications of the Gaza Strip’s proximity but fail to address its fundamental nature: Israel’s military occupation. The Gaza Strip is the western-most frontier of Mandate Palestine that Israel did not conquer in the 1948 War, which  it subsequently occupied in 1967. The coastal enclave is proximate because Israel established itself in the area already inhabited by native Arabs and who were promised self-determination under the League of Nations Mandate system. This history matters for two reasons.

Firstly, this history brings into play the right of a people under alien occupation and colonial domination to use force in pursuit of their self-determination captured in  Article 1(4) of Additional Protocol I. This provides the legal justification for Palestinians to use force against Israel. Notably, the authors mention this right much later in the paper where they muse whether Israel’s opposition to Article 1(4) mirrors the U.S.’s position, that national liberation movements lack the resources and accountability mechanisms to fulfill the duties and obligations of international law. While they do not resolve this issue, they note,

Although not directly bearing on the issue of Israeli targeting, note that the Israeli position deprives members of national liberation movements of any belligerent immunity for their attacks on Israeli targets, including those that qualify as military objectives. (31)

They do not raise the obvious conundrum that Israel’s position simultaneously incapacitates the Palestinian population from using force, even with weapons capable of precision-strikes, while fully and arbitrarily subjecting them to Israel’s military prowess. In fact, they qualify this condition by claiming that it does not bear “on the issue of Israeli targeting” at all. Schmitt and Merriam note this without irony as they discuss the “tyranny of context.”

Secondly, the status of the Gaza Strip, namely whether or not it is occupied, impacts Israel’s permissible use of force against it. The authors say that Hamas has been in control of the coastal enclave since 2007 but fail to probe whether that control is tantamount to the cessation of occupation under the Geneva Conventions. While Israel has insisted that its occupation ended upon its unilateral withdrawal in 2005, numerous scholars (see here, here, and here) as well as the Office of the Prosecutor and the Human Rights Council Fact-Finding Mission to Gaza have insisted that the occupation continues and remains consequential. In sum- if the territory is occupied, Israel has the duty to protect the civilians under occupation and in cases of unrest, it can use law enforcement authority to resume order. In contrast, if it can invoke self-defense in law (UN Charter and/or customary law) then it can resort to military force. Notably, since 2001 Israel’s High Court has insisted that it can apply both the law of occupation to govern the Occupied Territory as well as the law of armed conflict (LOAC) to quell unrest. (Can’an v. IDF Military Commander).  By 2005, they find that LOAC supersedes Occupation Law. (Public Committee Against Torture in Israel v. The Government of Israel). This means that it can deny Palestinians the right to govern themselves and simultaneously use military force to thwart their resistance to military rule. Israel’s High Court has been in lockstep with its Government in maintaining a military occupation and deeming it a war against terror.

Context here is consequential. The Gaza Strip is not proximate to Israel by random fortune- but because Israel established itself in Mandate Palestine by war and literally removed and dispossessed its native Palestinian inhabitants. This conquest remains contested by Palestinians and that is the root source of ongoing conflict. What Schmitt and Merriam swiftly disregard as proximate asymmetric violence is in fact the function of ongoing and unresolved claims over Israel’s authoritative jurisdiction. Obscuring this context risks creating a new body of law intended to protect a power’s colonial holdings as it gives the impression that Israel is using force to defend itself when, in fact, it is using force to squash Palestinian claims and militarily resolve the dispute over its control. Simultaneously, Israel criminalizes all Palestinian use of force in response, or otherwise, as terroristic. The authors in/advertently reify this false and counterproductive narrative without scrutiny.

2)       “…[C]asualty-aversion leads Israel to liberally apply force…”

In the same section on operational context, Schmitt and Merriam explain that the Israeli Army is a conscript force. The diffuse and shared nature of military service shapes Israeli values and thus how Israel engages in warfare. In particular, the public’s aversion to soldier casualties “…leads Israel to liberally apply force, particularly airstrikes and counter-battery fire, in order to ‘guarantee force protection.’” (8) This, the authors explain, also impacts Israeli sensitivity towards captured personnel and shaped the Hannibal Doctrine- the operational doctrine wherein the mission is to rescue a soldier from captivity at all costs including (fatal) injury to Israeli personnel.

While Schmitt and Merriam do not explicitly say so, the proposition above unduly shifts the risk of warfare from soldiers to enemy civilians; an incredibly controversial position. So much so that it occupied a series of essays and responses between the authors of the proposition and other legal scholars. Proportionality in ongoing hostilities demands that a belligerent’s military advantage outweigh the harm it causes to civilians and civilian infrastructure. Under Israel’s force protection rubric, its military advantage includes heightened security afforded to its soldiers. While all armed forces consider force protection as part of its military advantage, Israel’s proposal is radical in that it considers its soldiers lives to be more valuable than those of enemy civilians. Therefore, when assessing proportionality, it tolerates greater numbers of civilian deaths and injuries so long as that spares its soldiers from harm. The outcome of this almost ensures devastating results. At the most extreme end of this proposition is that a belligerent force could carpet bomb its adversary for the sake of preserving their soldiers’ lives, thus destroying those gains achieved by anti-colonial struggles and captured in Additional Protocols I and II. Colonized and occupied peoples would thus be subject to nearly unregulated military force. Consider the testimony of sixty Israeli soldiers who fought in the 2014 Gaza Offensive testified to very lenient rules of engagement including directives to “shoot at anything that moves.” These rules of engagement may very well reflect Israel’s radical force protection proposition. Notably, Israeli forces killed approximately 2,100 Palestinians, including 504 children during Operation Protective Edge.

Schmitt and Merriam do not take serious issue with this proposition. In fact, they do not mention the implications of Israel’s force protection until some 35 pages later in their section on Proportionality.  There, they simply note their surprise and then their passive acceptance for the novel approach:

Both authors were struck by the weight of accorded in the proportionality analysis to the military advantage of protecting the civilian population and individual soldiers. Although they would not label it unwarranted in light of the unique operational context in which Israel finds itself, it was clear to them that avoidance of harm to the Israeli civilian population and the protection of individual soldiers loomed large in Israeli proportionality calculations. (45)

Among the examples they provide to demonstrate the application of this approach is Israel’s deadly operation in Rafah where its Army applied the Hannibal Doctrine. Schmitt and Merriam mention that Israel’s rules of engagement “…reportedly resulted in as many as 114 deaths in Rafah.” (46) They say nothing more about the significance of these civilian losses that may put Israel’s proposition into question. For example, they do not share that the Israeli Army admitted to sealing off a 1.5 mile radius so that no one could flee.  Nor did they say that according to an Israeli officer, they released 500 artillery shells onto the area over the next eight hours, nor the fact that they also conducted 100 airstrikes over the course of two days. They do not mention that the commander of the Givati Brigade said to the Associated Press "That`s why we used all this force…Those who kidnap need to know they will pay a price. This was not revenge. They simply messed with the wrong brigade."

Israel’s proportionality assessment has had horrifying consequences. Schmitt and Merriam discuss nothing of this and simply state that Israel factors in “rescue and survival” into its military advantage in ways that would tolerate greater collateral damage. One of the authors agrees with the Israeli Army’s approach and the other believes that this is only significant for determining “the military feasibility of precautions in attack…” (46) Neither author critically assesses the unprecedented harm this approach would impose on civilians caught in warfare especially those civilians caught in anti-colonial struggles.

3) “The civilians are hopefully frightened into dispersing.”

In their discussion on aerial targeting practices, Schmitt and Merriam discuss Israel’s “knock on the roof” policy. This is the practice of shooting a missile at a home or building in order to warn the civilians of an impending strike. The policy is highly controversial. The relatively small rocket causes damage. A rocket in and of itself, regardless of the size has the impact of causing shock and often paralysis. When used by Israel, the larger rocket usually makes impact 45 seconds to three minutes later not providing adequate time to flee. In some instances, no rocket follows and the small rocket can constitute psychological warfare upon Palestinians. The authors discuss none of these details. In fairness, they describe the technique as “controversial.” They write

The technique involves employing small sub-munitions that impact one corner of the roof and detonates as very small explosions that produce noise and concussion, several minutes ahead of the strike. The civilians are hopefully frightened into dispersing. Once they have cleared the target area, the IDF launches the attack. (17)

The authors go to great lengths to downplay the size and scope of the rocket. They implicitly suggest that the Israeli Army waits for the civilians to leave before launching the second and larger missile, and explicitly say so in their footnote. This has hardly been the case as indicated by the numbers of Palestinians killed in their homes. The most troubling part of this passage, however, is their comment that the “civilians are hopefully frightened into dispersing” indicating an ambivalence about the efficacy of the warning technique while simultaneously acknowledging its psychological impact of creating fear. The authors characterize this practice as legal because it is incidental to a legitimate military objective. In contrast, they concur with Israeli legal advisers that the fear wrought by Palestinian rockets is illegal, even if they do not pose a deathly threat, because they intend to cause fear. (45) Reference to empirical evidence undermines these findings. Based on their investigation, for example, the FIDH concluded that “rather than minimising loss of civilian life, Israel’s warning policy fomented massive forced displacement and spread confusion and fear among the population.” (23) OCHA reported

Throughout the conflict there was a real fear among the population that no person or place was safe, as evidenced by attacks on hospitals, residential buildings and schools designated as shelters. Psychosocial distress levels, already high among the population of Gaza, have worsened significantly as a result of the conflict.

Later Schmitt and Merriam claim that the technique is used exceptionally when other warnings have proven futile- this based solely on what their Israeli interlocutors have told them. They then claim, as a matter-of-fact, that “the technique is only used when the building has been converted into a military objective through use (such as weapons storage)” again based solely on Israeli intelligence. (49) A cursory reading of any of the reports and commentary conducted on Israel’s warning system, or lack thereof, would provide a completely different assessment. (See e.g., United Nations, Amnesty International, B’tselem, Al Mezan, Human Rights Watch, FIDH).

The authors defend the fact that Israel does not always afford adequate time to flee. They explain this situation typically arises

…when the enemy is using the warnings to either know when and where to use human shields or take measures to prevent the civilians there from leaving. Such practices may leave only a narrow window of opportunity to strike before the number of individuals likely to be harmed in the attack rises. Therefore, a strike soon after a warning may in certain circumstances be the best means for minimizing civilian injury even when it does not afford civilians a great deal of time to leave or take shelter. (49)

Schmitt and Merriam are making an absolute proposition: when Israel forces believe necessary to achieve their military objective, they must strike immediately even if civilians do not have time to flee or a place to shelter.  They implicitly suggest that in such a case, Israel is relieved of its duty to assess whether such harm is proportional because it issued a warning, essentially giving its forces free reign to use force. Had the authors considered operational practice it may have included a discussion of the United Nations’ Board of Inquiry findings. That investigation concluded that Israel indeed struck seven UNRWA schools, several providing shelter to civilians, and none were storing weapons or militants. Israel responded that it was investigating these claims. How does this operational practice recalibrate the authors’ analysis? How can we take their findings seriously if they are not even considered?

The paper is rife with similar examples: explanation/apology for Israel’s rules of engagement without examining their application in operational practice. Schmitt and Merriam’s omissions merit much deeper scrutiny and engagement. Just scratching the surface reveals their flawed methodological approach and the inadequate engagement with the implications of their findings. In the best-case scenario, readers will approach their essay like a supplement to Israel’s Army Manual and read it with leisurely interest. In the worst, and more likely scenario, this work will significantly bear upon the production of knowledge regarding national security and humanitarian law and have fatal and devastating consequences. This does not only bear upon Israel’s wars but especially those waged by the United States against both state and non-state actors.  For this reason, we should treat this essay with the alarm it merits.