Too Early To Tell? The (Un)lawfulness of Israeli Attacks: The Case of the Jabalia Refugee Camp

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During two consecutive days, on 31 October and 1 November 2023, Israeli air forces organized a series of air raids which hit Gaza’s Jabalia refugee camp. The number of casualties is not yet clear at the time of writing of this post. However, victims seem to amount to at least 195 people confirmed dead and more than 700 injured. Condemnation of the attacks was swift at the international level, but Israel has attempted to defend itself against allegations of wrongdoing  by noting that target of these attacks were Hamas commanders in the area as well as a ‘vast’ tunnel complex at the site of the camp. According to Israel, the strikes killed  a large number of Hamas fighters who were part of the Central Jabalia Battalion. Additionally, two commanding officers seem to have also been taken out: Ibrahim Biari, believed to be a figurehead in the planning and execution of the Hamas attack on 7 October 2023 as well as Muhammad A’sar, head of the Islamist group’s anti-tank missile unit. On the other hand, Hamas has denied the claim that commanders were present in the camp and accused Israel of invoking pretexts for attacks against civilians. 

This post will attempt to assess whether the attacks that hit the refugee camp were a violation of Israel’s obligations under the law of armed conflict/international humanitarian law (IHL).

To begin with, IHL does not specifically deal with armed attacks against refugee camps (unlike, hospitals and cultural property which have more specific regimes of protection). Therefore, to determine the lawfulness of the attacks that hit the Jabalia refugee camp, we need to look towards the general principles on targeting in armed conflicts. While each attack should be judged in and of itself and on the specifics of each case (which, at this stage, seem to be either lacking or in high dispute), this post focuses on three of the most fundamental principles which would be relied on – as a starting point – in order to determine the lawfulness of the attacks: distinction, proportionality and precaution in attack. It is impossible to do justice to the dimension of each of these and their application to the case at hand in a blog post. Therefore, this submission suggests only some representative considerations that could be factored in.  

Distinction is always the starting point in matters of targeting. Enshrined in Art. 48 AP I and long-recognizes as customary law applicable to both international and non-international armed conflicts (with the current conflict falling into this second category), the principle rules out attacks against civilians and civilian infrastructure. Put simply, direct and deliberate attacks against either are a violation of IHL. They are prohibited. Hamas is claiming that Israel’s real purpose behind the attacks is to harm and kill civilians. If this is the case, then certainly Israel has already violated the law of armed conflict. However, Israel denies that civilians or civilian infrastructure were the target of the attacks. Rather, from the perspective of persons, it seems the focus of the raids were Hamas’s fighters, including two high ranking commanding officers. From the perspective of objects, the target seems to have been the tunnels located under the refugee camp which, it appears, were also locations of an important command point. If this is the case, from the perspective of distinction, Israel is not likely to have violated the law of armed conflict.

Relating to Hamas fighters and the high-ranking commanding officers, these qualify as members of an organized armed group which, according to the a number of military manuals, the Targeted Killings Case, and the ICRC’s Interpretative Guidance on Direct Participation in Hostilities can be targeted at any time (this is to be contrasted to those situations where individuals merely take direct part in hostilities on an isolated, sporadic basis, where the targeting window is believed – at least by the ICRC – to be narrower) . Turning to the issue of the tunnels as a direct, deliberate target, we need to look at Art. 52 AP I which is also representative of customary humanitarian law. One question to answer is whether Israel had credible information that the tunnels located under the refugee camp were being used for the movement and planning of Hamas troops and military activities. If the answer is yes – and, based on Israel’s position this seems to have been the case – the following point that needs to be determined is whether the total or partial destruction of the tunnel was to offer, in the circumstances ruling at the time, a definite military advantage to the Israeli army. On this point as well, the answer seems to be affirmative seeing how, even in general, the network of tunnels in Gaza has been severely detrimental to Israel winning the current conflict in the region. Therefore, from the perspective of the principle of distinction, if this was the reality on the ground, Israel did not breach IHL at this point. Rather, I would say, that if true that Hamas commanders and troops were located and infiltrated within the camp, it is Hamas itself that has acted against this principle, as a second facet of the rule on distinction places a clear obligations on warring factions to not intermingle their troops, ammunition and weapons with civilians and civilian infrastructure. The rationale of this second facet of distinction is to avoid more widespread harm to civilian populations than necessary.

However, although Israel may have complied with the principle of distinction, its conduct must be weighed against two additional rules: proportionality and precautions in attack.

Turning to the former, proportionality as a principle of IHL is codified in Arts. 51(5) (b) and 57 of AP I. Similar to distinction, the rule also exists as a matter of customary law, applicable also to non-international armed conflicts. The principle prohibits those attacks which may be expected to cause incidental harm or damage to civilians or civilian infrastructure if the harm in question is excessive in light of the concrete and direct military advantage anticipated. Any attack launched in violation of this principle is a breach of the law of armed conflict. Proportionality comes into play where the chosen direct target is lawful but, in attacking it, collateral civilian harm is likely to occur. Importantly (and, from my experience in teaching,  difficult for many to come to terms with), proportionality does not prohibit any incidental civilian harm, but only that harm which is excessive in light of the military advantage anticipated.

In the present case, the UN High Commissioner for Human Rights has qualified the attacks that hit Jabalia Refugee camp as disproportionate attacks, referring to the high number of civilian casualties and the scale of destruction. This post in no way seeks to contest this position. Things may very well be so. The number of recorded civilian casualties at Jabalia is still not clear. It may turn out that this number is actually greater than what was initially found. However, it is important to stress that, out of all principles of IHL, proportionality is probably one of the most difficult and controversial to assess in practical scenarios, because it involves weighing two fundamentally different factors against one another (on the one hand the civilian harm that is likely to occur and, on the other, the military advantage that an attacking force can concretely and directly obtain). Moreover, as pointed out also in the US War Manual, decisions on proportionality by commanding officers also have subjective aspects and different reasonable persons might reach different conclusions as to whether the expected civilian harm is excessive. This is likely to complicate the picture further.

As noted by the ICRC in its Handbook on International Rules Governing Military Operations and also by practitioners, there is no helpful formula to determine whether the destruction of a given military objective warrants the harm to and/or death of a given of civilians or civilian objects. In practice, determinations are or should be vested with the proper authority and decisions must be taken on the basis of approved operational procedures, good faith and duly collected information. Crucially, in the context of armed conflicts and targeting, proportionality is not just a numbers game. This is a determination that relies heavily not only on quantitative factors, but also qualitative ones. As has been pointed by a number of experts , when a direct target is an enemy fighter and there is a risk of incidental civilian casualties, considerations such as the individual’s rank, their mission, their field of expertise may be essential in determining whether civilian harm is truly excessive in relation to the military advantage anticipated in taking out the fighter in question. Always, as noted in scholarship, this requires an assessment based on information reasonably available at all stages of the attack: planning, approval and execution. In general, it has been recommended that a degree of deference should be given to commanders when making such decisions. The “reasonable commander” test  is sometimes pointed to and relied on as a yardstick for determinations on proportionality.

In the present case, the extent of civilian harm and deaths that have resulted from the air strikes is, undeniably, tragic. Nothing can ever alter this fact. That said, from the perspective of the law of armed conflict, absent further information, it is difficult to determine whether Israel’s attacks were, indeed, proportionate or not. The number of alleged innocent civilian casualties  is still unclear and it may be weeks – even months! – before a clear picture emerges. The large extent of civilian harm and casualties (at this time 195 dead and over 700 injured) is, indeed, not a strong starting point for Israel in showing that its attacks were proportionate. However, while this is an important indicator in establishing lack of proportionality, other factors will have to be taken into account. In particular, the determination may fluctuate keeping in mind the direct and concrete military advantage anticipated by Israel in launching the attacks targeting Hamas fighters and commanding officers, as well as the tunnels under the refugee camp (remember that if, instead, we fall back on the premise that Israel’s deliberate target were the civilians in the camp or the camp itself, this would already be a violation of the law of war). Where the available information that Israeli forces had at their disposal, at the time of the planning, approval and execution of the attacks against the refugee camp, showcased a military advantage that reasonably outweighed anticipated civilian harm, this may play in Israel’s favor. If Israel’s statements on the reasons for and outcomes of the attacks are to be believed, we can surmise that the military advantage anticipated was certainly not negligible. In taking out the master-mind behind some of Hamas’ most large-scale attacks, it would seem that Israel would be preventing imminent future attacks, as well as dealing a considerable blow to the morale of enemy forces.  Moreover, in attacking the network of tunnels located under the refugee camp, Israel would be impacting enemy forces’ capability by destroying important enemy command posts, as well as interrupting possible vital flows of fighters, ammunition, weapons and intelligence to the area. These are some of the considerations that come into play. It is, however, simply too early to tell whether or not they reasonably outweigh the extent of civilian harm uncovered in the wake of the attacks.

Finally, the question of whether the attacks on 31 October and 1 November were lawful also depends on whether Israel complied with the principle of precautions in attacks. Similar to the previous rules, the principle of precaution is enshrined in customary international humanitarian law applicable in both international and non-international armed conflicts. The rule imposes a constant obligation on fighting forces to take all feasible (i.e. practically possible) precautions in order to avoid and minimize civilian harm. The obligation is one of means and not result – even if incidental civilian casualties do occur, where forces have taken all precautions that were feasible under the circumstances, such forces still remain within the letter of the law.

The principle requires fighting forces to make use of a variety of approaches to this effect such as but not limited to choosing those means and methods of warfare that would avoid or keep incidental civilian harm to a minimum. Timing of the attack is provided as an example, as fighting forces should consider whether the attack is better launched at a specific time of day (or night) when there is less risk of incidental civilian casualties. Other examples included are selection of weapons that are proportionate to the target and the use of precision weapons (i.e. weaponeering). Target verification at all stages of the attack is also another facet of the principle of precaution, as attacking forces must ensure that their selected target is a military objective. Assessment of the effect of attacks as well as control during execution and target selection are further examples the law provides. All of these aspects need to be assessed against the realities on the ground at the time that the attacks were planned, approved and launched by Israel. Currently, there is still not enough information in the media to enable us to make an accurate determination of what precautions were taken and whether there were other precautions that were feasible but were not taken.

In addition to all of these, the principle of feasible precautions also sets out an obligation to warn of impending attacks that are likely to affect the civilian population. The obligation, however, is suspended where the circumstances relating to an attack to do not permit at attacking force to issue such a warning. These circumstances include instances where force protection or success of the mission depend on the element of surprise. With regard to the latter, as an example, Schmitt points out that where an intended target is a person within a building, issuing an advance warning to civilians in that building might allow the target to escape, therefore comprising mission success. Conversely, where the intended target is the building itself, issuing the warning for civilians to evacuate may not, necessarily, endanger the success of the mission and can, therefore, be feasible. Where issued, however, these warnings must be effective, meaning that the warning should be understandable to the civilian population in question and allowing for the sufficient time and means of escape. Again, there is no information, at this time, whether Israeli forces issued or not an effective warning prior to launching the attacks on 31 October and 1 November. It is possible that Israeli forces decided not to issue such a warning in this case. Arguably, if the intended target were Hamas fighters and high-ranking commanders, issuing the warning would pose real problems for the success of the mission as it would have, reasonably, facilitated the escape of the fighters and the commanders from the area prior to the raids being launched. Based on Schmitt’s reasoning above, issuing a warning pertaining to the attacks on the tunnels would have been more realistically possible. However, certain factors might still render such an advance warning less feasible where, for example, Israel had credible intelligence of the likelihood of Hamas using involuntary human shields (such as hostages) to try and protect the tunnels from attack. All of these factors need to be taken into account.

To conclude, the loss of civilian lives in Jabalia camp is nothing short of a human tragedy. This loss needs to be acknowledged, respectfully handled and adequately commemorated. If individuals are eventually identified, in this or some other case, as unlawfully attacking or endangering civilian lives they will, hopefully, be brought before justice. In an ideal world, reparations in the form of compensation and rehabilitation will be provided to survivors and surviving families. As we’ve seen, the legality of  targeting operations hinges on considerations of distinction, proportionality and precautions in attack. It is likely that the attacks did not violate the principle of distinction as such. However, proportionality is a more challenging component to determine. There is, as of yet, just not enough information available in the public domain in order to determine, with reasonable certainty, that the principle has been violated. Finally, while precaution in attacks seems to be more concrete in terms of its demands, specific particulars are likewise lacking and make current estimations on the degree to which Israeli forces have complied with this rule difficult. While it is true that, sometimes, no information is also information in and of itself, it is perhaps too early to commit to this idea. Time, fact-finding missions and appropriate institutions may be able to better lead us in the right direction and to, hopefully, a clearer outlook.  

Note: the views expressed in the post are solely the author’s and should not be construed as representative of the views of any institution the author has been or continues to be affiliated with.                               

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Ka Lok Yip says

November 4, 2023

Please note that the ICRC commentary on art 51 API regarding proportionality specifically denies 'any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive'.

Marko Milanovic says

November 5, 2023

A reminder by the editors that we do not permit anonymous or pseudonymous comments, unless we receive a justified request by email to that effect. Two such comments on this post have been made so far, which we would have approved were it not for the anonymity issue.

Zvi Swerdlove says

November 5, 2023

Thank you for a balanced, fair examination of the legality of Israel's attack. Regarding Israel's legal (and moral) obligation to minimize civilian casualties, in this case there is no clear evidence one way or the other. But in light of the undisputed fact that Israel actually does send SMS messages in Arabic to the phones of individuals living in particular areas of Gaza or specific buildings it is planning to attack on many occasions (as well as its public warning warning weeks ago to residents of Northern Gaza to go south), it is not unreasonable to assume that Israel does implement a general policy of sparing civilians when it is feasible.

Brian L. Cox says

November 5, 2023

Thank you for writing (and posting) this insightful analysis. Presenting a balanced and informed doctrinal analysis of legal considerations is vitally important for countering prevalent distortions in public perception that tend to characterize attacks as unlawful based on the outcome of the strike.

It may be useful to clarify one point regarding the proportionality analysis, and then also to add a factual component to the analysis related to feasible precautions in the attack.

Regarding proportionality, we should clarify that the outcome of the attack is almost completely irrelevant when evaluating LOAC compliance. Drawing on the formulation presented in the Rome Statute demonstrates why that is (recognizing that Israel hasn't ratified the treaty, though the IDF does apply many substantive components - including this one - as customary).

As the relevant text of the Rome Statute describes, it is a serious violation to: Intentionally launch an attack *in the knowledge* that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects...which would be clearly excessive in relation to the concrete and direct overall military advantage *anticipated*.

The components of this rule I've bracketed with an asterisk for emphasis (along with Art. 30 & 32 regarding mental element and mistake of fact) confirm that it is the perception of the attacker *at the time of the strike* that is relevant when assessing LOAC compliance - and the same is true with other rules such as distinction, discrimination, and feasible precautions.

I pointed out above that the outcome of a strike is *almost* completely irrelevant. In general, it is irrelevant - at least when evaluating compliance with the law. However, the outcome may be relevant after a strike to rebut the attacker's characterization of the anticipated incidental damage in the aftermath of an attack. For example, if the attacker claims that no incidental damage was anticipated but the incidental damage in fact turned out to be excessive, the outcome of the attack might be useful in countering the claims of the attacker.

This exception is only activated, though, when it is necessary to attempt to refute characterizations made by the attacker regarding the extent of incidental damage that was expected before the strike. In general, the outcome simply isn't relevant when assessing legal compliance after an attack. As such, the factual extent of the incidental damage inflicted as a result of the strikes on the refugee camp - as tragic as that damage is - is (almost) completely irrelevant when evaluating LOAC compliance. So, information that emerges in the days, weeks, and months to follow is likewise (almost) completely irrelevant to the legal analysis.

Regarding feasible precautions, it may be useful to point out that recent reporting published by the New York Times suggests that the bombs used in the attack likely utilized a delayed fuse. In targeting parlance, we commonly refer to this weaponeering technique colloquially as "burying the bomb". A delayed fuse is used primarily against subterranean targets and/or as a civilian harm mitigation technique. Regarding the latter, burying the bomb limits the thermal, pressure, and fragmentation effects of a blast and, instead, the area effects are primarily caused by ejecta.

I don't endorse the commentary and legal analysis presented by the relevant NYT story, but the analysis of weapons effects (that is, likely use of a delayed fuse) is supported by the satellite imagery presented along with the story.

Rather than including a link, I'll copy the headline here for reference: Israel Used 2,000-Pound Bombs in Strike on Jabaliya, Analysis Shows

If delayed fuses were indeed utilized, this is an important fact to consider when evaluating compliance with the LOAC feasible precautions (in the attack) rule. Burying the bomb is of course not *always* required when incidental damage is expected, but it is certainly *one* type of feasible precaution that was likely implemented for these strikes.

Dan Joyner says

November 5, 2023

I have to disagree with your assessment that this attack was in compliance with the principle of distinction.

API Article 48 requires that an attack must target a military object. API Article 50(3) states that the "presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character." And API Article 52(3) reminds that "In case of doubt whether an object which is normally dedicated to civilian purposes . . . is being used to make an effective contribution to military action, it shall be presumed not to be so used."

On the basis of these principles regarding the identification of a military object, I think it's very difficult to assess that this strike targeted a military object. It may well be true that there were Hamas fighters present and/or Hamas tunnels underneath the civilian residential area. And it is also true that to the extent Hamas intentionally places military assets among civilians and civilian objects, that action is itself unlawful per API Article 51(7). However as API Article 51(8) reminds, a violation on the part of one party does not alleviate the other party from its legal obligations.

This is an ongoing problem in the Gaza conflict - i.e. the targeting of mixed use sites, like civilian residential areas and buildings that also have Hamas military assets on or near them. But again, the presumption established by the law is that these remain civilian objects, and the burden is on the attacker to show that there is such a significant military character to the target as a whole to overcome this presumption, and render the target a military object per API Article 52(2).

Nicolas Boeglin says

November 6, 2023

Dear Professor Manea

Many thanks for this extremely usefull post.

I take the opportunity to refer you to this note on the official reactions observed in Latin america after the bombing of Jabalia´s refugee camp by Israeli air force: Bolivia, Chile and Colombia first, followed by Jordan, Honduras and Turkey this week-end

https://derechointernacionalcr.blogspot.com/2023/10/gaza-israel-bolivia-anuncio-ruptura-de.html

I wonder which will be the first EU State member adopting a similar diplomatic gesture.

If you - or some EJIL Talk colleagues - have access to a technical independent report on the bomb used in the first attack in Jabalia, please feel free to share it : the kind of crater observed shows that it was a particular potent bomb, confirming, in my modest view another war crime committed by Israel. A military expert, I´m sure with some experience of craters caused by bombs will be able to give us some input.

Any technical information on the type of explosive used by israel in Jabalia first attack is more than welcomed. Please, not coming from IDF "experts" but rather from another source.

Sincerely yours

Nicolas Boeglin

Saadat Pirzada says

November 8, 2023

Your point on distinction is highly problematic. The reasoning adopted here fundamentally makes most of Gaza strip open to target from the perspective of distinction if one believes the Israeli military’s claim that the underground network comprises of 480km of tunnels. To put this in perspective, Gaza strip is 41 km long and from 6 to 12 km wide.

Law does not apply in a vacuum. The UN has cited an estimate from the Gaza Ministry of Housing that 42% of all housing units have been damaged or rendered uninhabitable. The data on destroyed or damaged educational facilities, places of worships, media offices and factories is available on credible news websites.

Given the scale of bombing, treating distinction as a mere technical requirement is erroneous, harmful and against settled principles of IHL. It would have been useful to consider the responsibilities of the attacker in this regard before reaching to a conclusion. For the rest, Marc Schack’s response to part of your article published on this platform addresses other weaknesses in your arguments.

Abdelghany sayed says

November 8, 2023

So according to your interpretation Gaza in general is a military target. Yea? Also I wonder if you treat Russian attacks with the same level of patience and professionalism? They too claim Ukrainians use civilians and civilian infrastructures as shields. Also “it’s too early” and there’re so many facts that we still don’t know; but who exactly systematically blocked any proper, institutional I international legal scrutiny? Israel, North America, & Europe. Right? So what are we talking about here? Why is this not in a court of law an is instead discussed in legal blogs? And who benefits from this kind of legal blogs that only seek to legitimise further military action (despite massive agreement in the legal community about the character & intent behind this military operation (as many have inferred from statements by Israeli leader)?