Yes, Israel loosened its targeting rules after 10/7. But everything it did was legal and proportionate. ~ Elder Of Ziyon

Thursday, December 26, 2024

Yes, Israel loosened its targeting rules after 10/7. But everything it did was legal and proportionate.

The New York Times breathlessly reports:

At exactly 1 p.m. on Oct. 7, 2023, Israel’s military leadership issued an order that unleashed one of the most intense bombing campaigns in contemporary warfare.

Effective immediately, the order granted mid-ranking Israeli officers the authority to strike thousands of militants and military sites that had never been a priority in previous wars in Gaza. Officers could now pursue not only the senior Hamas commanders, arms depots and rocket launchers that were the focus of earlier campaigns, but also the lowest-ranking fighters.

In each strike, the order said, officers had the authority to risk killing up to 20 civilians.

The order, which has not previously been reported, had no precedent in Israeli military history. Mid-ranking officers had never been given so much leeway to attack so many targets, many of which had lower military significance, at such a high potential civilian cost.

It meant, for example, that the military could target rank-and-file militants as they were at home surrounded by relatives and neighbors, instead of only when they were alone outside.

Observers of the Gaza war might not have known the specific formula of "20 civilians per terrorist," but it was clear that the initial bombing campaign in Gaza was far more devastating than any previous Israeli campaign

The NYT broadly implies that this change in IDF reflects a clear violation of international law. But it doesn't. It reflects that Israel has always gone way beyond international law in the past to preserve civilian lives and in this case it loosened up the rules to be more in line with actual international law.

The article buries a partial quote of the IDF response to the reporters starting in paragraph 20:

Provided a summary of The Times’s findings, the Israeli military acknowledged that its rules of engagement had changed after Oct. 7 but said in a 700-word statement that its forces have “consistently been employing means and methods that adhere to the rules of law.”

The changes were made in the context of a conflict that is “unprecedented and hardly comparable to other theaters of hostilities worldwide,” the statement added, citing the scale of Hamas’s attack; efforts by militants to hide among civilians in Gaza; and Hamas’s extensive tunnel network.

“Such key factors,” the statement said, “bear implications on the application of the rules, such as the choice of military objectives and the operational constraints that dictate the conduct of hostilities, including the ability to take feasible precautions in strikes.”

I wish I could see the entire 700 word statement instead of the 60 or so words the Times quotes, but it emphasizes the key points that the NYT glides over.

According to the Rome Statute, to violate the principle of proportionality, an attack must be known that it "would cause incidental death or injury to civilians or damage to civilian objects ...and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated." This means that the value of the damage would be excessive compared to the military value of the target. Both of those values are difficult to calculate, but existing rulings give us some guidance.

There are three court rulings I am aware of that attempt to quantify proportionality in war. Two of them I have discussed previously.

The International Criminal Tribunal for the former Yugoslavia ruled that a 1999 NATO attack on the Radio Television of Serbia headquarters that the deaths of 16 employees were "unfortunately high but do not appear to be clearly disproportionate." There was no specific warning of the airstrike ahead of time. The station was only off the air for a day and NATO knew that the effects of the strike would be temporary.

In 2009, Taliban fighters hijacked a fuel truck that NATO feared would be used for attacks. It bombed the truck but some 90 civilians who were unexpectedly nearby were killed. A German court ruled that "Even if the killing of several dozen civilians would have had to be anticipated, from a tactical-military perspective this would not have been out of proportion to the anticipated military advantages.." Moreover, it gave a definition of what would and would not be proportionate: "[C]onsidering the particular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in cases of obvious excess where the commander ignored any considerations of proportionality and refrained from acting “honestly”, “reasonably” and “competently” … This would apply to the destruction of an entire village with hundreds of civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positions in the village …

The German court ruled an entire village could be wiped out if artillery positions were in the village.

A 2012 ruling appears to be more restrictive. In Prosecutor v. Gotovina, a general was accused of using disproportionate means in bombarding an urban area with artillery. The ICTY made up a fairly arbitrary definition of what would be considered a valid artillery attack and what would not be: “artillery projectiles which impacted within a distance of 200 meters of an identified artillery target were deliberately fired at that artillery target.” In short, if there is evidence that there was a valid target within the targeted area - which obviously includes Hamas terrorists, tunnels, rockets - the attack could not be considered illegal; the prosecution charged that using this 200 meter rule, 5.5% of the attacks approved by General Gotovina were outside the 200 meter radius, ignoring that the 94.5% that landed within the radius that were proved he was not arbitrarily shooting at the town.

The ICTY accepted that bizarre argument that doesn't account for normal operational error.

Gotovina appealed the ruling, and it was overturned, although the court didn't rule specifically on the proportionality issue so we do not have a clear definition from this ruling.

At the same time, the ICTY ruled that an artillery barrage aimed at President Martić's apartment - in the middle of a residential apartment building - that was fired from 25 kilometers away was disproportionate since even the person responsible for the attack recognized that "the chance of hitting or injuring Martić by firing artillery at his building was very slight." Apparently the proportionality calculation must also include the likelihood of success of the attack. The IDF never attacks when the chances of hitting the target are "slight."

Israel's bombing of a similar urban area would not be considered illegal unless there was no valid military target in the area of the bombings and little chance that the target would be hit, and even the New York Times doesn't make that claim.

It certainly sounds crass to weigh the value of human life, which is infinite, against military necessity. But if anything, Israel continues to err on the side of human life even given the context of legal rulings allowing far more leeway.

October 7 did change the calculus. Israel's goal now is to destroy Hamas, not to dissuade it as in past wars, and destroying Hamas is a perfectly valid military goal that includes targeting mid-level terrorists who are using their families as human shields - knowing that Israel had avoided them (but not the higher level terrorists) in the past under those circumstances.

The New York Times, as usual, doesn't address the legality of the attacks, which is the key consideration.