In Defence of Doctrinal Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp

The 31 October attack by the Israel Defence Forces (IDF) on the Jabalia refugee camp has understandably generated a significant degree of discussion and commentary, including on these pages. With this post, I join the discussion to defend what I characterize as a doctrinal application of the law of armed conflict (LOAC).

From this perspective, the outcome of the analysis – that is, a determination of the lawfulness of the attack – is not the focus. Reasonable minds can certainly differ regarding the final conclusion of any legal analysis. Instead, my focus is on the process utilized to arrive at that conclusion.

Assessing the LOAC Distinction and Discrimination Rules

To frame the present analysis among the discussion of the attack on these pages to date, I commend the assessment presented by Andreea Manea suggesting that it is too early to tell whether the attack was lawful. However, I suggest that information gathered in the days, weeks, and months after the attack is largely irrelevant when evaluating the lawfulness of the attack since it is the knowledge and intent of those responsible for the attack at the time of the strikes that are relevant to a doctrinal analysis.

Unless there is reason to believe, for example, in the aftermath of an attack that a commander’s assertion regarding the degree of incidental damage anticipated or military advantage expected at the time of the strike is implausible or disingenuous, information developed after an attack does not help clarify the decisive matter of what the commander’s knowledge and intent were before and during the attack.

Likewise, Luigi Daniele presents a productive analysis of the attack by focusing on the LOAC discrimination rule and deemphasizing a proportionality assessment. My response from a doctrinal approach is to emphasize the most relevant component of the discrimination rule, which prohibits attacks that “employ a method or means of combat the effects of which cannot be limited.” This text is drawn from a treaty Israel has not ratified, Additional Protocol I (AP I), but the formulation is a useful method by which to analyze the discrimination rule nonetheless.

The first component of the same rule presented in AP I describes as indiscriminate any attack that is “not directed at a specific military objective.” Evaluating compliance with this component requires consideration of the definition of military objective, which AP I helpfully describes as “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

Applied to the current context, it seems from information available in the public domain that the attack was directed at a specific military objective, specifically “a headquarters and other operational facilities located in buildings within the civilian camp” as well as in tunnels under the camp. If accurate, this means the attack likely complied with the LOAC distinction rule and the first component (in order of listing) of the discrimination rule.

Media reporting also suggests, convincingly, that several 2,000 pound aerial-delivered munitions – potentially fitted with precision guidance equipment – were used in the attack. The effects of such munitions can be limited as required by international law (see definition for “collateral effects radius”), so the strikes seem to comply with the third component of the LOAC discrimination rule.

Assessing the LOAC Proportionality Rule

With distinction and relevant portions of discrimination considered, the analysis shifts to what I assess to be the most pertinent aspect of the inquiry: compliance with the LOAC proportionality rule. Marc Schack adopts in his analysis the formulation presented in the Rome Statute, as I do here. Just like AP I, Israel has not ratified the Rome Statute. However, based on the state-centric diplomatic process that gave rise to the treaty, the articulations of war crimes presented in Article 8 represent a fairly reliable articulation of customary LOAC rules.

Drawing from the Rome Statute, then, the proportionality rule proscribes, “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian …which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Although Marc and I agree on the centrality of the proportionality rule, our perspectives diverge in applying it to the known facts.

Marc points out that the IDF likely intended to target “a senior Hamas commander, Ibrahim Biari” in the attack. Marc also links to an IDF press release and notes that “other military benefits were also mentioned” besides neutralizing Biari. With this understanding of the concrete and direct military advantage likely expected from the attack and a corresponding determination that the likely “civilian harm was anticipated to be massive” from the strikes, Marc determines “it seems implausible that the advantage gained could be commensurate – in light of case law – to the reasonably expected civilian harm.”

My doctrinal analysis diverges from Marc’s approach primarily on two grounds: selection of authoritative sources and methodology for evaluating the components of the proportionality rule.

International Caselaw and the “Designate and Extend” Model

On selection of sources, Marc draws primarily from two ICTY cases – Gotovina and Galić – to develop an “approximate baseline for how an international court or tribunal might assess questions of excessiveness in the balance between expected civilian harm and anticipated military advantage.” While reasoning drawn from international or internationalized criminal tribunals can be informative when evaluating the legality of actual attacks such as the strikes on the Jabalia camp, these decisions should not be used as an authoritative substitute for actual state practice.

This is a topic I examine in greater detail in the second part of a law review article published in 2020 that explores the connections between recklessness, intent, and war crimes. In that study, I develop the “designate and extend” model for describing the relationship between states and international criminal tribunals, including the role of the latter in establishing customary international law. While summarizing this model in the conclusion, I suggest that “the statutes [of international tribunals] represent primary sources as proxies to state practice, while judicial decisions are confirmed to be subsidiary sources of law.”

As subsidiary sources of international law, I endorse Marc’s approach of consulting various ICTY decisions for useful context – though I don’t necessarily completely agree with the conclusions he reaches in doing so. More important than comparative conclusions in applying reasoning from the decisions, however, is the role these decisions play in the analysis.

Although Marc starts this aspect of the analysis by describing ICTY decisions merely as “valuable materials” from which to draw, he then goes on to develop conclusions regarding the plausibility of the expected military advantage “in light of case law.” In doing so, the relevant ICTY decisions transition from being an informative resource to an authoritative articulation of relevant international law. By applying the designate and extend model, I treat ICTY caselaw just like any other subsidiary source of customary law – and it seems this is one methodological point of divergence between Marc’s analysis and my own.

Assessing the Concrete and Direct Military Advantage Expected

The other significant point of divergence is how we analyze the likely concrete and direct military advantage expected from the attack. In addition to Ibrahim Biari, Marc acknowledges from the relevant IDF press release that “other military benefits were also mentioned.” These “other” components of the concrete and direct military advantage apparently expected from the attack warrant closer scrutiny.

First, regarding Biari, the press release indicates that this Hamas commander “oversaw all military operations in the northern Gaza Strip since the IDF entered.” If correct, neutralizing this commander alone constitutes a considerable military advantage.

The press release continues by noting that a “large number of” Hamas operatives were also killed in the attack. Along with killing Hamas operatives, including Biari, it seems the intent of the attack was to destroy “Hamas’ command and control in the area, as well as its ability to direct military activity against IDF soldiers operating throughout the Gaza Strip.” According to the statement, “infrastructure embedded beneath the buildings” used by Hamas “also collapsed after the strike.”

The press release was issued from the IDF directly, so this is a valuable resource for determining the concrete and direct military advantage expected by those responsible for planning and conducting the attack. Because the military objectives were located in and beneath Jabalia camp, it is reasonable to conclude that those personnel also anticipated a significant degree of incidental damage as well.

If the incidental damage anticipated was clearly excessive in relation to the concrete and direct military advantage expected, and if those responsible for the strikes engaged in the attack anyway with that knowledge, then the attack violated the LOAC proportionality rule and constituted a war crime.

Comparing Proportionality Formulations Articulated in the Rome Statute and AP I

The same result is achieved, I suspect, if the proportionality standard presented in AP I is substituted for the Rome Statute formulation. That is, AP I describes as indiscriminate an attack which may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated.

In contrast, the Rome Statute formulation, which stands alone rather than being presented as a subcategory of indiscriminate attacks, proscribes intentionally (not a component of the AP I articulation) launching an attack in the knowledge (rather than “may be expected”) that the incidental damage will be clearly excessive (rather than just “excessive”) in relation to the concrete and direct military advantage anticipated.

Because evaluating proportionality compliance hinges on the knowledge and intent of those responsible for the attack, the “may be expected to” aspect of AP I is the functional equivalent of the “in the knowledge” component of the Rome Statute version – though the latter does helpfully clarify whose perspective is relevant.

Likewise, the “clearly” excessive standard articulated in the Rome Statute can reasonably be interpreted as quantifiably altering the method of measuring what qualifies as “excessive.” An alternate understanding, however, is that adding “clearly” before “excessive” is simply meant to…clarify the standard. I have encountered both reasonable interpretations in practice, and the difference between them in the applied context seems marginal.

When choosing between the two standards, it is useful to recall that the delegates to the 1998 Diplomatic Conference in Rome consulted existing sources of conventional law, including the 1977 Additional Protocols, as well as subsidiary sources of customary law such as ICTY and ICTR jurisprudence. Informed by these resources and by the experience of the various armed conflicts that occurred in the intervening two decades, negotiations in Rome led to an arguably more exacting, and certainly better clarified, formulation for the proportionality rule.

While there are obviously some important textual differences between the two standards, it has been my experience that the difference between them when applied to practical scenarios is rather negligible – especially in the context of external, ex post assessments.

External Speculation, Proportionality, and Feasible Precautions

A perceptive reader may notice that I have thus far refrained from directly analyzing or opining on the outcome of the proportionality analysis. This is deliberate and by design, as I do not have access to the information that would be necessary to offer a reliable conclusion.

In the public domain, there are divergent assertions regarding the extent of incidental damage caused by the strikes. Reports of civilian casualties that resulted from the attack range from 50 dead and 150 injured to almost 200 dead with more than 700 injured.

Drawing from these reports and assuming the personnel responsible for the attack anticipated that the strikes would kill 200 civilians, injure 700, and inflict the damage to civilian property that was caused by the actual attack, which is already incredibly speculative, I have no way of evaluating with sufficient precision the concrete and direct military advantage expected from the strikes.

If IDF intelligence indicated, for example, that the tunnel infrastructure purportedly situated below the camp was equipped with sensitive communications equipment utilized by Hamas to coordinate operations, neutralizing this equipment would contribute significantly to the concrete and direct military advantage already expected from killing Biari and other Hamas fighters.

Likewise, I have no indisputable knowledge regarding what mitigation techniques, if any, were implemented for the strikes. For example, media reporting has suggested, fairly reliably based on imagery analysis, that delayed fuses may have been utilized on the bombs used for the airstrikes. If accurate, this may have been an attempt to mitigate the incidental damage anticipated from the attack – and doing so would certainly constitute a feasible precaution in the attack.

At some point, the incidental damage anticipated will be excessive in relation to the expected military advantage and attacking anyway would be unlawful. Lack of access to the specific information that was available at the time of the strike and an assessment of how the attack was intended to contribute to the overall mission limits the ability of external, ex post evaluations to arrive at definitive conclusions.

Implementing LOAC rules such as proportionality and the requirement to take feasible precautions in the attack is, by design, highly contextual in practice. Observers in the public domain often have access primarily to information regarding the effects of an attack, and this is certainly of some utility in the endeavor to develop the context necessary for assessing LOAC compliance.

However, observers outside the IDF – including, for example, the UN Human Rights office – are not in a position to determine that these strikes may constitute “disproportionate attacks that could amount to war crimes” based on the “high number of civilian casualties [and] the scale of destruction following Israeli airstrikes on Jabalia refugee camp” alone. This observation brings the analysis to my concluding point: emphasizing the commitment to engaging in doctrinal LOAC assessments.

In Defence of Doctrinal LOAC Assessments

Although it can be a useful and informative exercise to evaluate LOAC compliance after an attack based on information available in the public domain, observers and commentators not directly involved in an attack or tasked with assessing compliance afterward simply do not have access to the information necessary to draw authoritative conclusions. As frustrating as it may seem from the outside, processes utilized by militaries to develop pre-strike military intelligence and post-strike battle damage assessments are not carried out for the purpose of providing us the information necessary to develop authoritative conclusions.

For outside observers, some variation of two basic conclusions seems quite common when analyzing attacks that result in civilian casualties: 1) “The human suffering that resulted from this attack is horrific and deplorable”; and 2) “This attack was unlawful.”

Though this mode of analysis is prevalent in public discourse, these two observations must be addressed separately. In the present context, it is entirely legitimate and completely understandable to abhor the catastrophic consequences inflicted upon the civilian population as a result of the attack on the Jabalia refugee camp. As unimaginably horrifying as those effects are, this reality alone does not render the attack illegal.

Personnel responsible for planning or conducting attacks during the conduct of armed hostilities are expected to comply with international law as it doctrinally exists, not as it could – or perhaps even should – be. External observers professing to evaluate LOAC compliance after an attack, based on the limited information that is often available in the public domain, must be held to the same standard.