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

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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.

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Brian L. Cox says

November 10, 2023

If there is a discussion to be had about the above post here in the comments, I would would like to start it by acknowledging the earlier posts on the topic by Andreea Manea, Luigi Daniele, and Marc Schack and thanking them each publicly for their insightful and expert analysis. I reflected extensively on your work during the drafting process for the above, and doing so led me to challenge and probe my own beliefs about the application of LOAC in practice. There are points where our perspectives don't align, but that is of course to be expected in the forum of scholarship. What is important is that participants in scholarly discourse are well informed and contribute their own unique experiences and perspectives to the discussion. Thank you each for doing so - I'm glad to be able to join you to discuss this incredibly important and timely topic. Thanks as well to the EJIL:Talk team for the opportunity - most appreciated!!

Ayesha Malik says

November 10, 2023

I find it interesting (let's go with interesting) that we now have four articles of analysis on whether the bombing of a refugee camp which killed hundreds of civilians was lawful. Interesting because I'd venture if Russia or Syria had done the same, this 'nuance' would be sorely missing from any kind of analysis. The notion that we're supposed to take the IDF as a valuable resource in determining the military advantage anticipated is laughable when that state has already told you it will focus on damage rather than accuracy, that it considers the entirety of Palestine to be responsible for Hamas' attacks and that Netanyahu himself said he would turn parts of Gaza into rubble. This is also an IDF which has lied blatantly in the past (not least about using white phosphorus in Op. Cast Lead).

Cox also says that 'delayed fuses' have been used which may have been an attempt to mitigate the incidental damage anticipated from the attack. That can't be the case when you're dropping at least two 2,000 pound bombs in a dense and heavily populated area. The delayed fuse was used to ensure the tunnels were hit but I think it's clear from Israeli statements they weren't to protect civilians. See this statement from Garlasco in the Guardian: "Garlasco said the type of munitions he believes were used would have met stated Israeli military goals of hitting underground tunnels, but also caused extensive damage above ground. If they are set to have a delayed detonation, which is one of three options on the bomb, they cause an earthquake-like phenomenon when they do explode. “JDAMs will burrow through the ground, and have a delayed detonation, causing the building to collapse on itself. This explains the extent of the damage,” he said. “Buildings also collapse due to the blast wave, not just tunnels.” So the delayed fuse wouldn't count as a precautionary measure. 

I find it shocking that clearly disproportionate damage is being greeted with 'it may be legal', 'we can't know yet' nonsense. At this rate, I think many international lawyers in the West would only agree with it being disproportionate if Israel were to nuke the Gaza strip, oh wait they've already threatened to do that as well. 

Nicolas Boeglin says

November 10, 2023

Dear Professor Cox

Many thanks for this post.

I have a question regarding the kind of ammunition used in Jabalia´s refugee camp. If we take this note of the NYT, it says that:

"Israel used at least two 2,000-pound bombs during an airstrike on Tuesday on Jabaliya, a dense area just north of Gaza City, according to experts and an analysis conducted by The New York Times of satellite images, photos and video".

Source:

https://www.nytimes.com/2023/11/03/world/middleeast/israel-bomb-jabaliya.html

The crater observed in pictures shows the kind of expansive impact produced by this kind of ammunition.

In your view, had IDF an option to used another kind of ammunition to limitate the impact in the area?

If yes, in your opinion, why IDF decided to use this particular option at the moment to choose the ammunition?

Sincerely yours

Nicolas Boeglin

Brian L. Cox says

November 12, 2023

Ayesha: Your comment raises an important point about the nature of public discourse involving the unrelated conflicts between Russia and Ukraine on one hand and between Hamas and Israel on the other. I would not claim to speak for all Western international lawyers, but, at least from my perspective, I have long been concerned about the rhetoric from governments and scholars in the West denouncing attacks by Russia based on the outcome of the strikes. Without convincing evidence of the knowledge and intent of Russian military personnel responsible for attacks, it is not appropriate to condemn strikes as indiscriminate or disproportionate - for the same reason it is inappropriate to do so for the IDF. The analysis in the above post utilizes the strikes on the refugee camp and the ensuing commentary as a case study in defense of doctrinal assessments, *but* the analysis is not limited to this attack or this conflict. Distorting international law in service of a preferred political or social agenda should be avoided, regardless of the cause or the commentator involved. I have expressed caution and concern about the danger of equivalence for some time, and the rhetoric we see coming from Russia denouncing IDF attacks based on the outcome is a conspicuous illustration of that danger. Regarding delayed fuses on munitions - yes, this is a technique to maximize damage in a building, but it is also a technique for mitigating the collateral effects radius of a munition directed against a building (or other object) or a subterranean target. I've advised on more targets than I could hope to keep track of in combat - the actual number is easily in the hundreds, if not thousands. On countless occasions when we've needed to mitigate the risk of collateral effects, I've advised (along with personnel in the fires section) to delay the fuse - or to "bury the bomb" as the technique is often called colloquially. There are ample sources in the public domain that demonstrate the use of a delayed fuse as a civilian harm mitigation technique, though I would be glad to include links to a few if doing so would be useful. If you have specific experiences or expertise to suggest otherwise, I would also welcome evidence to the contrary. There has been no shortage of anecdotal commentary suggesting that the IDF disregards international law during targeting operations - including with the attack being analyzed above. To that end, I would recommend the information paper published by the Israel Ministery of Foreign Affairs earlier in November that is available at this link:

https://www.gov.il/en/departments/general/hamas-israel-conflict-2023-key-legal-aspects

Nicolas: I should emphasize at the outset that I have absolutely no inside knowledge about the strikes or the weaponeering techniques involved, and any observations I offer are completely speculative and based only on the information that is available in the public domain. With that caveat in mind - if the target is located inside a fortified structure or underground, a weaponeering solution of utilizing a large bomb with a delayed fuse does seem appropriate in this context based on my experience as a CDE analyst and legal advisor. A smaller munition (say, a 500 lb. or 1,000 lb. bomb) is unlikely to achieve the intended effects on the target, while a delayed fuse would limit the collateral effects radius of the munitions. A 2,000 lb. bomb set with a point detonation fuse has a very large collateral effects radius (the precise figure is classified), and the primary effects are blast (thermal and pressure) and fragmentation. Delaying the fuse allows the structure, object, or the ground to absorb much of the blast and fragmentation effects, and the primary collateral effects with a delayed fuse (at a much reduced radius) are ejecta (rocks, stones, dirt, and debris) emanating from the site on the ground or the structure that absorbs the blast. Again - completely speculative and based only on information available in the public domain, but that is my impression based on my experience with targeting and advising as an operational law attorney.

Michal Lipták says

November 13, 2023

"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."

But cannot some quantative cap be imagined? Or, can even hypothetically so great military advantage be imagined that it would justify killing unlimited number of civilians, for example, 10 thousand civilians? Or is there an upper limit of expected civilian deaths which no degree of military advantage would justify?

I'd argue that high number of civilian casualties (and 100+ civilian deaths is very high), while not *alone* constituting a war crime, is actually a good indication of possible war crime, and the burden for proving proportionality should be very high (and ideally should be argued, in this case, before ICC - at least for the sake of transparency).

And while there's currently not one, maybe de lege ferenda there should be hints at quantitative cap where no amount of "military advantage" can overcome it. The most tragic aspect of current IDF campaign is extermination of whole families - which is no longer only about killing civilians, but about erasing culture, memories, things that hold society together. Civilians need better protection.