Just because they could, they did. That is the gist of a recent New York Times article suggesting the Israel Defense Forces (IDF) made a deliberate decision to green-light increased civilian casualties. But this narrative is based on dubious inferences divorced from the realities of how a professional, law-abiding military wages war: both the processes of attack decision-making and the strategic and the military operational context of the IDF campaign in Gaza compelled by Hamas’s October 7 attack.
The article does provide important insights into how the IDF responded to the unprecedented situation it found itself in after October 7: early in the Gaza campaign, the IDF decided to authorize tactical commanders to execute (or refrain from) attacks that were expected to result in a higher level of incidental civilian casualties than what was permissible previously. However, the Times presents this information, together with selected examples of high-casualty IDF strikes, in a manner designed to lead to an invalid inference: that the IDF’s civilian casualty thresholds were a quota that every attack was designed to meet and, by raising those thresholds, the IDF displayed potentially illegal indifference towards civilian casualties.
This is a misrepresentation of the function of civilian casualty thresholds and what the Law of Armed Conflict (LOAC) demands. Crucially, civilian casualty thresholds indicate nothing about whether a particular attack does or does not comply with the LOAC proportionality rule. An attack falling within the scope of the threshold authority may not be proportional, while one exceeding it may be. Nor does the raising of the threshold mean that every IDF attack caused civilian casualties up to the authorized number. The Times cites examples of IDF strikes that did result in many casualties, but it fails to cite the numerous attack proposals that were canceled or suspended because a commander who could authorize them decided not to do so. Without such balance, the true meaning of this threshold expansion is lost.
Yet the article’s implication seems obvious: that the decision to modify these thresholds and expand attack authority at lower levels of command was indicative of an overall disregard for the laws of armed conflict. But this implication is almost impossible to square with our observations as well as those of a number of military experts who have interacted with the IDF to assess operational and tactical practices. As we, together with other retired U.S. military commanders, argued in a JINSA report informed by a fact-finding visit to Israel in which we were briefed by the IDF about their operations: “the IDF has carried out its mission to eliminate the Hamas threat with operational and tactical excellence and in overall compliance with the Law of Armed Conflict (LOAC). This occurred despite encountering a complex urban and subterranean battlefield….” Others have come to similar conclusions, including the High-Level Military Group, which one of us participated in, and John Spencer, among the foremost experts on urban warfare, who put it succinctly: “Israel has taken precautionary measures even the United States did not do during its recent wars in Iraq and Afghanistan.”
Rather than encouraging indiscriminate warfare, civilian casualty thresholds are best understood, as one of us has explained, as an important civilian risk mitigation precaution. When such thresholds are imposed, they do not, as is suggested in the Times critique, authorize inflicting that number of civilian casualties. Instead, they limit the attack decision authority at different levels of command to those expected to create a certain level of civilian risk. If the anticipated civilian risk exceeds the threshold, the decision whether to attack has to undergo greater scrutiny and be made at a higher-level command. By withholding decisions to higher-level commanders, this precautionary measure is designed to ensure that as the risk to civilians increases, so do the expertise, capabilities, experience, and operational perspective of the commander entrusted with this awesome responsibility.
However, if an attack is within the scope of that limit, then the commander is still required to determine whether the attack passes other legal checks. A casualty threshold would only be one step in the attack decision, whether in the IDF or U.S. military. If the assessed civilian risk is within that threshold, a proportionality assessment would then be required. This is because the law defines as indiscriminate and prohibits any attack launched in which the commander assesses the risk of incidental civilian death and injury to be excessive in relation to the anticipated concrete and direct military advantage anticipated.
What “targeting law” demands of the attacking commander is reasonableness: did he or she make a reasonable judgment in the circumstances ruling at the time? There is no manual that indicates what level of civilian risk is reasonable to attack different types of targets; the rule is inherently amorphous. Furthermore, the value of an individual enemy can vary substantially depending on that individual’s function and relationship to other enemy assets, operations, and other aspects of the friendly operation.
The IDF’s application of this proportionality assessment is why the one example of a high-casualty IDF strike that might have been the result of this rule loosening cited by the article is one in which the target was a Hamas commander. Enemy personnel in the command-and-control network may be assessed as far more significant targets than an average enemy fighter and, therefore, the military advantage of eliminating them could in good faith be deemed to exceed the resulting civilian casualties. Indeed, one need only consider the way in which attriting Hezbollah command-and-control networks enabled the IDF to achieve operational objectives against that enemy without the catastrophic escalation even JINSA’s own experts predicted several years ago.
But even if an attack is deemed proportional, commanders are still obligated to follow the far more operationally significant rule of precautions. That rule requires both the attacking and defending forces to implement all feasible measures to mitigate civilian risk resulting from hostilities. Feasible in this context is a critical qualifier: the force must have the capability to implement the measure, and doing so is required only in cases when it will not compromise anticipated military advantage (no commander would warn civilians of an impending air attack when doing so would alert the enemy air defense system and make it more effective).
Here, the Times article points out that in the current conflict, the IDF has not used the same level of precautions it has employed previously — such as knock on the roof munitions or phone calls to nearby civilians ahead of a strike. This only points to the extraordinary measures that Israel has used to protect civilians in the past, measures that most other law-abiding nations do not employ.
But just because Israel set such a high bar in protecting civilians previously does not mean that it is now falling short. Nothing about the ground campaign the IDF was compelled to launch against Hamas mirrors prior confrontations with that enemy. As noted in our JINSA report, this was a combined arms maneuver campaign involving up to five maneuver divisions (approximately 100,000 troops) against a determined enemy numbering somewhere between 35-40,000 fighters organized into 24 battalions operating under, on, and above ground.
Unfortunately, the Times article ignores this military operational reality that almost certainly influenced this modification. Anyone reading the critique would assume that nothing changed in the operational situation confronted by the IDF between October 6, 2023, and the commencement of its Gaza campaign. But such an assumption is simply absurd. The campaign the IDF conducted against Hamas and other organized armed groups in Gaza was unprecedented in scale and intensity, certainly the most extensive campaign against an enemy in decades.
The Times inadvertently highlights the nature of this conflict in one of its examples of civilian casualties: an October 2024 Israeli strike in which a secondary explosion of Hamas munitions stored near a hospital caused a fire that resulted in the gruesome death of a teenager. What relation this tragic story has to the article’s focus is unclear. This casualty cannot be the result of either the IDF’s rule loosening—the article acknowledges that the IDF re-tightened its rules and lowered civilian casualty ratios in November 2023—or even the IDF itself. The only thing it is an example of is how Hamas has eroded every distinction between military and civilian targets, turning all of Gaza into a battlefield and intentionally endangering civilians in doing so.
It is a simple reality of war that in these types of operations, attack authority and discretion are delegated down to tactical commanders responsible for time-sensitive and decisive decision-making. In other words, there is nothing remarkable or unusual about the fact that the IDF leadership modified these thresholds to align with the nature of the campaign they were about to conduct (see here for a forthcoming article from one of us addressing the emphasis on lower-level leaders in the LOAC implementation process during such operations). If anything, the fact that limits were retained is an indication of their consistent commitment to the precautions obligation.
Educating the public on the procedures implemented by professional armed forces to balance the needs of military necessity with the imperative of mitigating civilian risk is both important and valuable. However, it is imperative that such education reflect both the true nature of the law that regulates war and the military operational realities in which it is applied. Ironically, to suggest an indiscriminate campaign, the Times article employed indiscriminate analysis. In the context of an unprecedentedly complex conflict, the IDF’s decision to expand civilian casualty thresholds was both logical and justified, and in no way supports the inference of a military indifferent to the human costs of war.
General Charles Wald, USAF (ret.), former Deputy Commander of United States European Command (EUCOM) – General Charles Wald is a proven leader who specializes in global military strategy and development. As EUCOM Deputy Commander he was responsible for developing the air campaign in Operation Enduring Freedom in Afghanistan. Gen. Wald has also served as the Director of Strategic Planning and Policy at USAF Headquarters, Chief of USAF Combat Terrorism Center, and Deputy Chief of Staff for Air and Space Operations at the Pentagon. In 35 years as a USAF command pilot, Gen. Wald accumulated more than 3,600 flying hours and 430 combat hours.
LTC Geoffrey Corn, USA (ret.) is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy, Texas Tech University School of Law and a Distinguished Fellow with the Gemunder Center for Defense Strategy (part of the Jewish Institute for National Security of America). A retired U.S. Army Judge Advocate Officer, he served as the Army’s senior law of war advisor.
Originally Published in the Cipher Brief.