No one has ever fought a war with an enemy so deeply entrenched in their civilian population, who so systematically abuses international law – as the IDF faces with Hamas, a senior IDF legal official told The Jerusalem Post.
Fighting Hamas now, when it has topped its prior use of civilians and civilian locations as human shields, is “incredibly complex” and “a new kind of case study” for the challenge of winning a war while limiting harm to civilians.
Part of the IDF’s international law department’s ability to stay on top of the vast number of legal questions regularly coming up is a jump in staff during wartime.
The operational legal advisers branch is available 24/7 and includes about three dozen full-time legal advisers, plus over 100 reservists – a significant growth from where it was a decade ago, even during wartime.
If, at one point, international law legal advisers remained at headquarters and then moved closer to the frontlines at Northern, Southern, and Central Command headquarters, they now also serve at division-level headquarters, closer to the action and real-time developments.
These legal advisers also work closely with the Coordinator for Government Activities in the Territories (COGAT), the Defense Ministry, the Foreign Ministry, and the Justice Ministry.
A common refrain from critics of Israel is that the IDF is killing far more civilians in this war than it did in prior rounds of conflict, which proves it is committing war crimes.
Why is the civilian casualty rate in Gaza so high?
Without endorsing specific figures, the legal adviser said there were multiple, complex reasons why the civilian casualty rate may be much higher now than in the past, none of which, though, should lead to criminal allegations.
He explained that the IDF simply does not yet know all the specific circumstances that make up the large civilian casualty estimates.
If the IDF estimate of 8,000 Hamas terrorists killed is accurate (and it does have some level of uncertainty), and the total number of Palestinian casualties put out by the Hamas-run Gaza health ministry of 20,000 is accurate (this figure has a lot of uncertainty), then the IDF would have killed close to 12,000 Palestinian civilians, when compared to over 1,000 out of around 2,100, back in 2014, during the last ground invasion of Gaza.
In percentages, that would mean 60% of those killed were civilians, compared to 40% fighters, whereas in 2014, it was about 50/50.
According to the legal official, the first condition necessary is more time to paint a clearer understanding of why so many died, what the mistakes were, and what could be classified as collateral damage – given the presence of an important target, the IDF was trying to kill or destroy.
According to him, a distinction between this much larger scale war and the other “rounds” of conflict was that Israel’s military goals in the past were more limited, as well as the approach to the military advantage needed to advance those goals.
That matters for the question of whether an attack meets the proportionality legal test, which depends on balancing the military advantage against expected civilian harm.
This time, the government set much broader goals of destroying the military and ruling capacity of Hamas. The expert explained that means deploying force at levels of greater magnitude and a different outlook on military advantage. It also means that military targets, seen as less crucial in past rounds, became more critical.
Hamas built thousands of military positions and weapons storage areas in hospitals, mosques, and schools, he noted. The IDF would criticize attempts by well-meaning US allies to compare Israel’s experience in Gaza to Mosul. Its view is rather that what Hamas did in Gaza could serve as an unprecedented case study, one of a terror group investing ten years and 40,000 fighters to transform an entire area into one extended terror playground.
The IDF, then, is tasked with destroying an unprecedented number of targets, including transformed civilian locations, to subdue Hamas.
The IDF is also encountering far more threats to force protection in the field.
Since the First Lebanon War in 1982, the IDF has not undertaken a significant invasion of foreign territory, and in all previous rounds with Hamas, if it went in, it was for a very slight and narrowly tailored invasion.
Now, there are tens of thousands of soldiers in Gaza – all exposed to Hamas lookouts, ambushes, and booby traps.
This means that there are a myriad of additional targets to facilitate. It also means that an individual anti-tank missile position or an individual tunnel shaft could be a meaningful target, whereas he said in past IDF-Gaza rounds, they might have been overlooked as unnecessary to attack to achieve more limited goals.
The official said the IDF believes it has taken all “feasible” precautions to warn civilians – only this time, “feasible” is more limited.
In the past, with the goal being more stopping Hamas from firing rockets – than eliminating its operatives – the IDF cared less about doing that or even avoided it. This meant it could provide general warnings to evacuate neighborhoods and specific warnings to civilians who ignored those warnings and remained in an area set to attack.
IDF needs to attack Hamas faster, avert dangers
IN CONTRAST, during this war, the IDF often found it unacceptable to allow Hamas to escape by giving additional warnings after issuing general evacuation warnings.
Further, he said that the IDF often needs to attack faster, leaving less time to warn due to the immediate danger the soldiers are in.
Another problem with issuing a larger number of warnings – in the early days of the war – was that many of the assets the IDF used to collect intelligence about the extent of civilian evacuations were out of place.
Due to Israel’s need to eject Hamas’s 3,000 force of invaders from 22 southern Israel towns in the week following October 7, the IDF official said that the military moved many of its aerial assets, Shin Bet (Israel Security Agency) assets, and others, from Gaza to the South.
This meant that when the IDF first started to counterattack Hamas in Gaza with airstrikes a few weeks after October 7, there were fewer assets in place to track the progress of civilian evacuations.
Moreover, many assets used to track civilian movements in Gaza in past rounds needed to be shifted to the North to defend against Hezbollah or to the Gulf of Eilat and beyond to defend against attacks from Yemen’s Houthi group.
Despite these limitations, the IDF has a highly professional staff to maximize the utility of its warnings, in terms of experts in Arabic, in the analysis of open intelligence media, and in terms of lawyers to facilitate safe areas.
According to the IDF lawyer, this group has also had significant success in sending civilians to safe areas using specific streets and during specific hours.
One problem the IDF will continue to face is time. After 2014, which ended on August 26 of that year, the IDF put out an announcement on September 10 that it was opening 99 reviews and five criminal probes. This was after it was hit with criticism that the operation mounted for “only” 50 days and before the International Criminal Court (ICC) had even opened its preliminary review against Israel.
This time, the “main war” will likely have run for around 100 days, a full ICC criminal probe has been opening and running against Israel for more than two-and-half years at this point, and Chief ICC Prosecutor Karim Khan has given the IDF a detailed warning about its conduct, during a visit to Israel and the West Bank.
The IDF legal official said that because of the unusual scale of the war, it is much harder to gather all of the initial facts to make responsible and informed decisions. The officers needed to facilitate the initial gathering of facts and clarifications are also currently part of the invasion.
Despite this challenge, he said that the mechanism for initial operational probes of certain very controversial large incidents has already started, even if it is likely a reduced staff, which will only grow to its normal size once the main war ends.
It seemed he understood the IDF would need to show even greater transparency than in the past, and in that vein, the Foreign Ministry has already published a few initial reports relating to legal and factual aspects of the war.