Since the Israeli response to the 7 October terrorist attack by Hamas began, the world’s focus has shifted onto Israel’s prosecution of its military campaign. But in an era where information (and misinformation) can be transmitted instantaneously, and when emotions are raw, context is largely absent or ignored. Terms such as ‘war crimes’ and ‘international law’ are thrown about by people who have little or no understanding what the terms actually mean. Accusations that a religious building, school, medical facility or ambulance has been bombed in most cases are made without knowledge of exactly what the building or vehicle was being used for. Protected civilian objects, for example, lose that protection when they are deemed to be legitimate military targets.
Hamas has spent years building tunnels underneath Gaza to house its weapons, supplies and command-and-control nodes. It is effectively using Gazans as human shields in contravention of international law. It wants to raise the risk threshold (that is, the civilian casualty count) that Israel faces in targeting its facilities. Israel, for its part, claims that it tried to separate combatants from non-combatants by dropping leaflets to people in north Gaza ordering them to head south. It was at best a perfunctory effort at minimising the number of civilians in the target area.
Exactly how many civilians and combatants in Gaza have been killed isn’t known. To date the Hamas-run Health Ministry has provided detailed figures of Palestinian civilians killed, yet there’s no mention of any Hamas deaths. The accuracy of the casualty figures have been called into question, and the Health Ministry was certainly caught out fabricating claims of an Israeli strike at al-Ahli Hospital, but without knowing how many Hamas militants were killed or injured in a strike, or the number of civilians, then determining whether the attacks, individually or collectively, breach international law is virtually impossible.
Given the increasingly strident calls for Israel to stop its aerial bombing campaign in Gaza and to reduce civilian casualties, it is perhaps worth examining the two main considerations that drive whether a military response, or aspects of a military response, can be considered to breach international law. I am not a lawyer, and nor are those that authorise the engagement of a target. Lawyers give advice, but it will be a uniformed non-lawyer military officer, or in some cases a senior politician, who will ultimately approve a strike.
The two guiding principles that inform a person’s decision boil down to ultimately subjective concepts: military necessity and proportionality. Both are concepts that can be argued ad infinitum, but the reality is that those charged with observing them often have to make such life-or-death decisions quickly and repeatedly.
Proportionality is perhaps the more contested of the two, and there are any number of well-informed backgrounders on social media explaining the formula that US forces came up with in trying to systematise the concept in the theatres they fought in over the past 20 years. It is an inexact science—indeed, it’s not a science at all, because the measure of proportionality relates not to the number of people being killed but to the military advantage being obtained.
The military effect is relatively easy to determine in a sparsely inhabited, billiard-table-type operating environment. The risk of civilian casualties is low and the nature of the military target is easy to discern. In dense urban terrain such as exists in parts of Gaza, and with an enemy that operates among, and underneath, the civilian population, the decision-making process is much harder and determining proportionality more difficult.
Risk tolerance is also a key practical factor in determining proportionality. In Israel’s case, it’s clear that the level of risk tolerance for civilian casualties and hence the calculation of proportionality are different to what would have been accepted before 7 October. But revenge is not sufficient a reason to make risk tolerance more elastic.
What is likely driving the increased risk tolerance for civilian casualties on the part of Israeli targeters, even more than simple revenge, is the mission. Politically it is to destroy Hamas; militarily it is to degrade the group sufficiently that it is unable to reconstitute for years, if ever. On this, the Israeli government has the backing of US President Joe Biden, who is acutely aware that more than 30 US citizens were killed in Hamas’s initial attack on 7 October and that nearly two dozen were taken as hostages.
The tempo of the operation, with Israel claiming that thousands of targets in Gaza have been hit, makes it difficult to accurately determine the likely impact on civilians of every strike. But before we can decide whether an airstrike was proportional or not, we would need much more information than we are actually privy to. To begin with, there’s the information on which the Israeli targeters who planned the strike based their decisions, relating to not only the risk of civilian casualties (which in many cases are more or less guaranteed) but also the steps they took to minimise them (such as selection of munitions type, attack timing and approach). The newly appointed UN special representative for human rights and counterterrorism, Australia’s own Ben Saul noted this challenge in categorising an airstrike as breaching international law in a recent interview.
The recent attacks on targets in the Jabalia refugee camp in northern Gaza provide a case in point. The first strike was alleged to have killed 50 Palestinians and wounded 150 more. The Israelis claim that the first strike killed Ibrahim Biari, a key planner of the 7 October attacks and allegedly commander of the northern Gaza sector, while the second strike killed the commander of Hamas’s anti-armoured forces. It also claimed that other Hamas fighters were killed in the strike because it destroyed a Hamas command post built underneath the refugee camp. This reflects the nature of decisions that need to be made in conflicts such as this.
Assuming that both parties’ claims about casualties in Jabalia are true, Hamas clearly breached international law by deliberately building a militarily key target among the civilian population. The military necessity of the target—the headquarters of Hamas’s northern Gaza defence—is readily apparent. But was the loss of 50 Palestinian lives proportional to the military advantage Israel gained in conducting the strike? Were there other ways of disabling Biari’s ability to coordinate Hamas’s defence without killing him, other Hamas fighters and 50 Palestinians? Or was the opportunity to kill Biari a fleeting one, where firm intelligence placed him at that precise point but for only a limited time, precluding other methods of disabling his command? That is the type of information needed to make an informed judgement on the legality of strikes.
This may seem a sanitised way of looking at issues of proportionality when the pictures beamed nightly into people’s living rooms and uploaded every minute on various social media platforms show that there’s a real cost to the Gaza campaign and real children and civilians are being killed daily. Western governments have understood this and are beginning to change their tone on Israel by degrees. Unfortunately, the levels of the main players’ risk tolerances virtually guarantee more civilian casualties.
Seeking to make up for his government’s spectacular security failure on 7 October, Prime Minister Benjamin Netanyahu willingly accepts civilian casualties among the Palestinian population as long as he destroys Hamas. Hamas invites civilian casualties by its positioning of military assets, and now that it knows that Israel’s risk tolerance is well beyond anything it has seen before, it likely sees outcries over more civilian casualties leading to a ceasefire as its only chance of survival. And Washington hopes that by supporting Netanyahu’s military campaign and calling for adherence to international norms it can buy Israel time to inflict grievous damage on Hamas before the White House will have to acquiesce to public opinion and back some kind of ceasefire. Israel, Hamas and Washington are all accepting of civilian casualties in Gaza—they only differ in how many and why.