‘Rules of War’ are Complicated, not only in Gaza

One of the most common accusations of Israeli illegality in the ongoing conflict in Gaza is that the Israeli Defense Force (IDF) consistently inflicts disproportionate civilian harm, what international humanitarian law defines as indiscriminate attacks.

Launching an indiscriminate attack does, without question, violate international humanitarian law – the law that regulates the conduct of hostilities in any war. This limitation on what qualifies as a lawful attack decision presupposes the decision-maker – normally a military commander – is directing the attack at what he or she assessed as a legitimate target. At that point, the prohibition on indiscriminate attacks reflects a simple but essential legal and moral premise: the ends do not always justify the means. When attacking that “legitimate” target creates a risk of excessive deadly and destructive impact on civilians when compared to the anticipated “concrete and direct” military advantage, the attack is prohibited as indiscriminate.

This explains why accusations of indiscriminate attacks are central to the Israeli illegality narrative. Most critics of Israeli operations must concede (often begrudgingly) that the IDF is “targeting” legitimate people and objects. But it is allegations of widespread harmful “collateral” impact on Palestinian civilians that is cited as conclusive proof of illegality.

Accusations of “mass atrocity” and the constant emphasis on Hamas-controlled civilian casualty numbers are commonplace, with no effort to distinguish between Hamas fighters and civilians, or between intentional and collateral casualties. These accusations rely substantially on the opinions of international law experts, often law professors.

These experts provide important understanding of the legal framework applicable to armed conflicts. This includes explaining how an attack resulting in “disproportionate” civilian harm amounts to an indiscriminate attack, although it is more legally accurate to refer to “excessive” casualties and damage. But this also raises a critical question: excessive compared to what?

This is because the legal test for assessing when the “incidental injury and collateral damage” to civilians and/or civilian property violates this rule of war requires assessing whether the anticipated civilian harm will be excessive compared to the “concrete and direct” military advantage anticipated to result from the attack.

This legal test indicates there are three important aspects to a credible assertion that an attack is indiscriminate in violation of international law.

First, the assessment cannot rely solely on the adverse effects on civilians. While it is tempting to assume that civilian suffering proves illegality, the law’s focus is also on the attack decision, and not just the attack result. This means it is crucial to consider why the attack was launched, and not just the outcome. And in making this assessment, it is proper to consider the objectives of the entire attack objective, and not just individual parts of the attack.

Second, it is impossible to conclude an attack was indiscriminate without considering the value of the target attacked in respect to the military advantage to be gained. Relying on only the consequences of the attack without this consideration fails to account for the inherent weighing of quite different considerations that needs to occur at the core of this rule of war.

Finally, attack legality is assessed on a target-by-target basis. This is why it is misleading to simply cite the total number of civilian casualties, numbers that are open to criticism given they do not distinguish between uninvolved civilians and Hamas fighters.

While it is true that patterns of attack methods may support an inference of an overall failure to comply with the law, cumulating civilian casualty numbers in a military campaign spanning months against an enemy deeply embedded in urban areas among the civilian population proves very little in terms of the legality of the individual attacks that produce these cumulative numbers (although it may suggest the campaign goes beyond the justification of self-defense, a very different legal question).

But even assuming legality assessments align with the applicable legal test, there is one more aspect of this process: the assessment of military advantage related to an attack. Many states have taken the position that the advantage anticipated from the attack is the advantage considered as a whole and not from isolated or particular parts of the attack.

Assessing military advantage is an essential factual predicate for any attack decision creating risk to civilians. It identifies the military necessity for creating that risk. This component of the attack legality equation is certainly part of the assessment of compliance or non-compliance.  But importantly, determining what qualifies as a military advantage and the weight of that advantage within the meaning of this legal test, is inherently fact-based. The factual predicate for making this legal assessment necessitates analysis of military operational considerations. This in turn, means it is necessary to assess a range of military operational factors: the mission, the enemy situation, the friendly situation, the operational environment, available resources, timing and urgency, and the importance of the target in the context of the broader operation.

It is therefore somewhat perplexing why critics of IDF operations often cite the opinions of legal experts not just for explaining the legal test for attack legality, but also directly or by implication suggesting what the relative military advantage might be when conducting an attack.

Even more problematic are opinions that do not address the issue of military advantage at all.  These opinions frequently fail to identify any facts regarding military advantage and overlook the array of military operational considerations that would almost always influence the attacking commander’s assessment of the anticipated concrete and direct advantage to be gained in carrying out an attack.  Information that would undoubtedly need to be presented and considered by a court charged with assessing military advantage when ruling on the legality of an attack.

International humanitarian law experts play an immensely valuable role in ensuring understanding and compliance with the law. However, they often lack the military operational experience needed to make a well-informed opinion relating to military advantage. Identifying essential facts and circumstances related to such an evaluation is critical, yet an appreciation of this “operational art” is simply not inherent in the study of the law that regulates military operations. Yet it is that experience and broader understanding of military operational art that provides the essential foundation for rendering a credible opinion on whether a given attack offered a “concrete and direct” military advantage, and even more importantly, the likely weight and significance of that advantage in assessing whether civilian casualties or damage is excessive.

The result is that opinions expressed by legal experts about targeting that do not credibly present the basis for assessing military advantage should not be accorded much weight and are likely best avoided altogether.

Legal experts provide important and essential understanding of the law that regulates operations. This understanding is the essential foundation for any credible adjudication of allegations of violation. But expertise in military operations also plays an important role when assessing the legitimacy of military advantage judgments related to attack decisions.

This is especially true in relation to allegations of indiscriminate attacks as the result of the infliction of collateral damage and incidental injury to civilians. Only a fully informed understanding operational context can enable a fair critique of the anticipated military advantage and in turn, whether the attacking commander should have considered the anticipated civilian risk as excessive.

This is not to say that legal experts are never competent to offer opinions on military advantage. Many such experts have extensive military operational experience, to include participating in the attack decision-making process. Others have availed themselves opportunities to participate in military operational training exercises to gain a greater appreciation of these considerations. But fundamentally, it is the military “operator,” and not the military lawyer, who we should turn to when seeking to better understand why an IDF commander would have chosen to attack a given target and how the attack was conducted.

Right now, the “adjudication” of war crimes is largely taking place in the court of public opinion, where it is perhaps understandable why condemnation is so heavily reliant on the tragic effects of combat. But this has already started to shift to more formal inquiries, to include judicial assessment of international legal compliance.

This requires a more reasoned process; one that rejects assumptions and acknowledges the inherent complexity of balancing the necessities of war with humanitarian constraints. A thorough understanding of the law regulating the conduct of hostilities is essential to this process, but so is an understanding of the operational context in which attack decisions were made. The individuals who judge these decisions will almost certainly not be military experts, but they owe it to those subjected to scrutiny to ensure their judgments are informed by an appreciation of military operational realities. Failing to account for these realities is a recipe for indiscriminate condemnation.

Geoffrey S. Corn is the George R. Killam, Jr., Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law. He joined the Texas Tech faculty after a 17-year tenure as a Professor of Law at South Texas College of Law Houston. Corn served in the U.S. Army for 21 years, retiring with the rank of Lieutenant Colonel and then serving the Army’s senior law of war advisor.

Originally published in The Cipher Brief.