The discussion of the legality of the IDF’s actions in Gaza is clouded by politics.
There are Israel-haters and antisemites who do not care about the facts, wishing to simply label Israel as committing genocide to tear down the country and prevent its defense.
There are also naïve well-meaning individuals who have no idea of the scope of systematic human shields that Hamas has used: Hospitals, schools, UN facilities, and mosques.
And yet, there is still a missing conversation within Israel about the morality and legality of some parts of the IDF’s targeting mechanisms.
In April, +972 Magazine issued a report, followed by one last week from The New York Times, which both brought these issues into clear contrast.
Put bluntly, even if Hamas systematically uses human shields, and even if the IDF needed to kill far more Gazans in this war than in prior conflicts to defeat Hamas militarily after October 7 – the question is: At what point does the ratio of terrorists to civilians in a particular attack violate even the most extreme interpretation of proportionality?
Justifiable attacks
Can killing 100 civilians be justified to kill even the most senior single terrorist? Can killing 20 civilians be justified in killing mid-level terrorists?
The Jerusalem Post has attempted to engage various IDF officials on this subject since the war began. They did not provide completely clear answers, but the Post has received some substantive explanations that go beyond the generic defenses – that the IDF initiates evacuations before strikes with millions of warning flyers, phone calls, and text messages warning civilians that Hamas is them using human shields.
The problem is that the generic defenses still do not really ever make a ratio legal and ethical, whether it is 100:1 or 20:1.
Between the lines
About 15 years ago, a judicial commission found that the IDF’s assassination of Hamas military leader Saleh Shehada in 2002, in which 13 civilians were killed – including his wife and underage daughter – was not a war crime. Pointedly though, the commission found the attack to be borderline.
A Times report said the IDF’s assassination of Ibrahim Biari, a senior Hamas terrorist and the central battalion commander of Jabalya, which took place on October 31, 2023, had a ratio of an entirely different order of magnitude – 100:1.
+972 Magazine reported that the December 2, 2023 bombing of Wisam Farhat, Hamas’s Shejaia Battalion commander, too allowed a 100:1 ratio.
Several other airstrikes of senior Hamas officials during the war, as well as some of the rescue operations of Israeli hostages, allegedly led to the killing of around or over 100 civilians.
In at least one of these cases, the killings were not anticipated, as they occurred only after an escape vehicle got stuck and fell to a Hamas attack. But, the IDF has never previously fully outlined what its redlines are in situations like these.
The Post has now learned the military’s position: There are no set ratios. It also views the message of the Times report – that these ratios are essentially part of a carte-blanche strategy – as inaccurate.
The Post understands that the IDF’s view is that the Times report confused various minimal parameters that may exist for setting at what level different ranked IDF officials are mandated to sign off on certain strikes – with being the final call on approving a strike.
For example, the IDF revealed in April that only a brigadier-general-level officer had the authority to approve a strike on a Hamas fighter acting near a humanitarian food delivery caravan.
When a colonel approved such a strike in error, leading to the killing of seven aid workers, he was reprimanded – not only for mistaking the aid workers for Hamas, but also for violating the limits on his airstrike approval authority.
This means, the Post has learned, that even after certain ratios in a potential attack area might meet a minimal standard for a certain commander to sign off, that commander and his legal team must still separately determine that the attack is proportionate under international laws of war.
One question that went unanswered is whether the IDF lived up to these standards as much at the start of the war in October-November 2023. The Post has learned that the IDF would acknowledge that it had less time and fewer resources available to evaluate each target during that time period, as compared to other times.
However, the IDF would still contend that it properly checked its targets for civilian casualties, and with multiple tools.
This is the point that leads into the various reports on the issue, which have also raised questions about the IDF’s target bank and artificial warfare methods used to incriminate some Gazans and to estimate how many civilians are nearby.
Bearing the responsibility
Hamas bears full responsibility for using its own people as human shields, and so has probably committed tens of thousands of war crimes against its populace during this war.
But, does this excuse the IDF from catching a repeat error on estimating civilians where – according to the reports – it was determined sometimes from cellphone use or from old records – without using drones or forces on the ground to double check?
On November 16, 2023, the IDF allegedly killed dozens of members of the Malaka family, including several women and minors. According to the Times, the IDF’s estimate of civilian harm was around 16, based on cellphone use and former records.
But, cellphone use was out, and dozens of additional people had arrived shelter in that same area for safety – they had nowhere else to go. Unlike in earlier wars, the report said the IDF did not invest in localized resources to check if its civilian estimates were correct.
Even assuming there was some mid-level terrorist at the site, if the IDF misestimated civilians by the dozens – not only this time, but many times, at what point does such an error carry a new level of responsibility, potentially even criminal responsibility?
Airwars, a London-based conflict monitor, documented 136 IDF strikes that it said each killed at least 15 people in October 2023.
Presumably, some of these people were Hamas terrorists, and the Airwars numbers may have other deficiencies, but, until now, the IDF has not publicly addressed most of them to give its narrative with any specificity, other than to make generic declarations.
The Post has learned that the IDF’s view is that over-generalizations that it was overly reliant on AI and cellphone tracking to determine potential civilian harm is inaccurate, and that even in October 2023, there were other tools available – though it, for now, is not stipulating what those tools are.
Previously, the Post reported that drones are regularly used to follow the status of civilians in a target area, and that there have been hundreds – if not thousands – of cases, where the IDF called off an attack when the drones revealed that too many civilians were present.
The fact remains though, that multiple operations in question with an alleged 100:1 ratio took place over a year ago, and the IDF still has not produced a real public reckoning regarding those operations – despite the fact that there are over 85 IDF criminal probes, hundreds of disciplinary probes, and likely over 1,000 initial reviews, that show that the military is investing real resources in probing potential war crimes allegations.
What are the consequences
Delaying fully addressing these year-old allegations (as opposed to allegations of alleged IDF wrongdoing from Jabalya from the last two months) is not only problematic from a legal and ethical perspective, and exists in the context of a PR war, but it will likely concretely harm Israeli national interests in the not-so-distant future.
On November 21, the International Criminal Court approved arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
Israelis who have always viewed any sort of dialogue with the ICC as a waste of time presented this moment as proof that the worst-case scenario has happened, and so now the ICC should just be ignored.
But, the worst case has not actually yet happened.
The dialogue within Israel and probes of its own alleged war crimes have led to several victories over the years.
The first ICC war crimes allegations were brought in 2009, many more were brought in 2014, and yet, if not for the current, much bloodier war, no arrest warrants might have ever been issued. Even as is, the arrest warrants were effectively delayed for 15 years; this is not a small win.
The worst-case scenario is not that two political officials face arrest warrants – it is that hundreds or thousands of soldiers could face them as well.
ICC Prosecutor Karim Khan specified in his decision that because the IDF probes itself, he has not yet sought arrest warrants against Israeli soldiers. But he added that if these probes proved insufficient or took too long, he could choose to seek arrest warrants against soldiers also.
Some have posited that US President-elect Donald Trump’s election will save Israel from the ICC – because he and Congress may sanction ICC officials.
But the US is not a member of the ICC and does not grant it any funds; any pressure the US may bring on the ICC is, at best, indirect.
The more time drags on, and the more in-depth articles with anonymous cooperating IDF officials come out – and, as long as the IDF does not provide specific rebuttals, including granular operational details – the harder these questions become for those seeking to defend Israel’s overall record, and the greater the danger that the worst-case scenario with the ICC will transpire.