Armed Conflict Foreign Relations & International Law

Legal Questions Answered and Unanswered in Israel’s Air War in Gaza

Marc Garlasco
Tuesday, January 2, 2024, 9:18 AM
How does the Israeli Defense Forces justify its attacks as legal in the face of so much destruction?
"Palestinians inspect the damage following an Israeli airstrike on the El-Remal aera in Gaza City on October 9, 2023." (Wafa, in contract with a local company (APAimages);

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The Israeli Air Force’s (IAF’s) bombing of Gaza since Oct. 7, 2023, has been widely criticized for the extreme level of civilian deaths, the choices of weapons used, and the way in which those weapons have been employed. On Dec. 27, the Israeli Defense Forces (IDF) finally engaged these criticisms head on in a statement delivered by the chief of staff of the Israeli Air Force, Brig. Gen. Omer Tischler. While the general is not an operational commander, it is the first time I have seen the IAF engage criticisms of its operational choices in such a direct manner. 

Transparency has been sorely lacking from the IAF. While withholding some information for operational security is understandable, the complete lack of data helps drive a negative narrative and reinforce claims that the IAF doesn’t care about civilian harm. By comparison, the U.S. military produced daily summaries of counter-ISIS airstrikes in Syria and Iraq during Operation Inherent Resolve. 

In his statement, Tischler responds to criticisms of Israel’s air campaign by laying out four “planning principles” he says the IAF keeps in mind “while planning operations,” as well as by addressing what he calls “misleading claims.” Each of these points deserves scrutiny, but before proceeding, I want to address one important aspect of this legalistic approach. I will be discussing the taking of human life in a clinical way, and while that is necessary when discussing the laws of war and the tactics, techniques, and procedures a military applies in kinetic operations, I am aware this approach fails the victims—of both sides. Hundreds of Israelis died mercilessly in Hamas’s Oct. 7 attacks. War crimes, including murder, kidnapping, and the use of sexual violence, were perpetrated by Hamas and other Palestinian armed groups against civilians. Many Israelis continue to be unlawfully held in Gaza. Thousands of Palestinian civilians have died violent deaths at a rate not seen in modern air campaigns. The IDF struck protected places like hospitals, targeted ambulances, and denied basic needs such as food and water as a result. Over a million are internally displaced. It may seem to some that discussing the “right” bomb to use or a “better way” to employ force misses the point—an end to the conflict is desperately needed. However, it is important to address militaries with the law and an understanding of the weapons and choices they make in kinetic operations and how those choices affect the protection of civilians.

Now, some data to set the scene: The IAF reportedly dropped over 29,000 bombs during the first six weeks of the war. That is a staggering sum for one city, in any war. By comparison, the U.S. dropped 29,199 during the entire Iraq war in 2003—on the whole country. More shocking is that nearly half of the bombs dropped on Gaza have been unguided, or so-called dumb bombs—a decision Tischler defends. Additionally, most bombs dropped are among the largest in regular use—2,000 pound bombs. These weapons, while effective in leveling military targets, can affect extremely wide areas, sending lethal fragments more than 1,000 feet from the point of impact when used in the open. In other words, Gaza is being hit by a lot of very large and often unguided bombs. The results speak for themselves: The IDF’s military campaign has killed over 20,000 Palestinians, damaged or destroyed nearly a fifth of all buildings in Gaza, and displaced 85 percent of the population of 2.3 million. How does the IDF justify its attacks as legal in the face of so much destruction?

Tischler first reviewed IAF planning principles, noting the great care the air force takes when developing and validating a target. First and foremost, the IAF bases its strikes on intelligence, and Israel also has one of the most capable military intelligence services on the globe. Having led intelligence targeting teams in the Pentagon myself, I’m well versed in those procedures and agree with the use of clear, vetted intelligence as a core element of target development. While I appreciate Tischler’s response, recent reporting indicates the IAF is less focused on an intelligence-driven air campaign and more focused on one designed “to create shock” in the fabric of Palestinian society and put pressure on Hamas—a clearly unlawful application of force if true since the society is not a lawful target. The same article notes the widespread use of artificial intelligence to assist planners in target development, which raises concerns about whether intelligence is really driving target selection.

Tischler also raises military necessity—an important point because it means there is a defined military need to hit targets. He says these strikes are not punitive in nature, yet the way the general speaks about striking targets in his statement is quite odd. He identifies the first planning principle as “[s]triking targets based on intel, and military necessity for close air support.” Close air support (CAS) are air strikes in proximity to your own ground forces engaged in combat. It’s an odd qualifier because the bulk of the questionable strikes are not CAS. The problematic strikes are either deliberate targets, ones that have been planned with a long lead time because they know where Hamas is, or dynamic strikes that fall within the category of high-value targeting, the leadership hunt against Hamas as targets of opportunity show themselves. I am deeply confused about the qualifier of CAS. An explanation would help.

Tischler next covers the IDF’s evacuation efforts, which he says enable the military “to strike and maneuver in areas with minimal civilian presence.” This is a protective step that assists a military in providing warnings to a population so they can depart the area before it becomes a battlefield. This protective step isn’t something militaries always do, even though international humanitarian law requires it when possible. Israel and the United States have recently applied this protective measure, at times unevenly, leading to the civilian deaths they sought to avoid because militaries often treat the provision of warning as some carte blanche to turn an area into a free-fire zone. For example, the U.S. military gave warning to civilians in Fallujah, Iraq, before that battle in 2004—yet hundreds of Iraqi civilians were killed. The problem Israel is having in Gaza is the same the United States had in Iraq—not all civilians can or want to leave. Some are disabled, have nowhere to go, or just want to stay in their homes. Nothing legally compels them to leave. Additionally, Israel has repeatedly struck so-called safe zones they directed Palestinians to flee to. While Tischler explains how warnings help the IDF, he doesn’t address how they help the population that has nearly nowhere to go, nor why the IDF strikes safe havens it establishes.

The general then directly addresses weaponeering—the process of choosing the right weapon to destroy a lawful target while minimizing civilian harm—a planning principle he calls “[s]electing the right munitions to minimize collateral damage.” He notes, “This allows us to accurately strike Hamas even though it operates within civilian areas.” The general’s statement on weaponeering is refuted by the facts on the ground. Time and again the IAF has used its largest, most destructive weapons in densely packed civilian areas where the resulting harm should be predictable, instead of using low-collateral-damage weapons, thousands of which the United States has supplied to Israel. When a military develops a target, it conducts a collateral damage estimate (CDE) to determine the anticipated level of civilian deaths. Either Israeli CDEs are woefully broken or Israel’s tolerance of civilian harm is far greater than what militaries like the United States’ would accept. 

But don’t just take it from me—an IDF investigation reached the same conclusion about its poor weapon choice. A day after Tischler’s statement on Israel’s operational choices, the IDF released the results of an internal investigation of a Christmas Eve strike on the Maghazi refugee camp that killed 70 Palestinian civilians. The investigation showed the wrong weapon was used in the attack, resulting in avoidable civilian harm and collateral damage. This investigation and public admission are important accountability mechanisms. One aspect of military accountability is the need to recognize when operations fail to meet legal or ethical standards, determine the causes of those failures, and institute corrective actions so they don’t happen again. Time will tell if this happens with Israel’s weapon choices, but I strongly disagree that weaponeering has been a strong point in this conflict.

Finally, the general notes the IAF uses “real-time monitoring” during strikes, and if things don’t look right, they will abort. When I led the UN’s protection of civilians office in Afghanistan in 2011, I regularly met with NATO pilots to understand their targeting choices. Several times they showed me gun camera footage of aborted strikes when “transient civilians” were observed on the attack run. Militaries typically allow pilots to abort a strike when civilians suddenly enter the area. I welcome this statement. Clearly Israel has persistent monitoring of the entire strip—not just for targeting but also to help it locate the remaining hostages. In U.S. military parlance, “real-time monitoring” is part of what is known as a “pattern of life assessment,” used by targeteers to determine if there is a civilian presence at a target, and if that knowledge can be used to mitigate the potential for civilian harm. It would be interesting to learn what Israel’s threshold for aborting a strike is, but I certainly understand the need for operational security. At the very least, it’s good to hear Israel is applying a “best practice” of civilian harm mitigation.

After these planning principles, Tischler gets specific on Israel’s weaponeering, defending the use of unguided or, as he puts it, “dumb bombs,” as well as defending the use of weapons with wide-area effects. This gets at the heart of President Biden’s criticism of Israel’s “indiscriminate bombing” of Gaza. The law of armed conflict requires bombs to hit military objects. Precision weapons help them do that—a GPS-guided bomb Israel uses has about a 5-meter margin of error. Unguided bombs can miss by up to 30 meters, increasing the chance of hitting civilians and for use in an indiscriminate attack. But missing the mark isn’t the only danger here—bombs may hit accurately but result in a very wide-ranging blast and fragmentation. They might destroy their target, but depending on how they are used they may have indiscriminate effects, encompassing homes and other civilian objects. Israel is doing both—using unguided bombs and bombs with wide-area effects, the kind that can level a city block. 

Even though Tischler defends the IAF’s use of unguided munitions by claiming that “[t]hese are standard munitions that are regularly used by militaries worldwide,” Western militaries have largely turned away from unguided weapons. In Iraq in 1991, only about 6 percent of all bombs dropped were precision guided. By the Libyan civil war in 2011, every bomb NATO dropped was guided. That is a sea change. However, not everyone does this. For example, some 95 percent of all aerial munitions Russia has used in Syria are unguided. The general further defends the use of unguided bombs by saying they can still target accurately. He is right. Thirty meters is far more accurate than what the U.S. military did in Vietnam with carpet bombing. But can they target accurately enough to be lawful in a dense area like Gaza? If you miss by 5 meters, the Hamas commander is probably still dead. If you miss by 30 meters, you might hit a home full of civilians. Looking at the historical use rates of precision weapons and how Israel is so well supplied by the United States with precision munitions, I am shocked Tischler would defend the IAF’s use of unguided bombs. When Russia hits Ukraine with unguided bombs, the world yells “war crimes.” I think we should be similarly aghast at Israel’s use of such weapons in a city. 

When it comes to wide-area effects, the general provides a better answer and one I think has merit: Most of the heavy munitions they use in Gaza have delayed fuzing, which makes them detonate underground. This has the effect of trapping the blast and fragmentation underground, so it won’t hit civilian areas. This is another “best practice” of civilian harm mitigation. The bigger issue is scale—Israel has dropped over 29,000 bombs in Gaza, and even the use of delayed fuzing will still level homes, as was seen in the Jabalia strike. 

The explanation of these principles is instructive, but the bigger—and unaddressed—issue is how the IAF is assessing proportionality, which is the amount of civilian harm acceptable for a military target. To date, that appears to be heavily skewed to a point where Israel will accept extreme levels of civilian harm for questionable military value. If I could ask Tischler one question, it would be to explain how the IDF assesses proportionality in strikes. In Iraq in 2003, for example, the targeting of Saddam Hussein was allowed if 30 or fewer civilians might be killed. Saddam was clearly a lawful target of the highest value due to his status as head of Iraq’s military. In Gaza, we are seeing over a hundred civilians killed in strikes on mid-level Hamas leaders, raising questions on the lawfulness of the IAF’s approach to proportionality. 

Gen. Tischler’s statement—the first such statement from the IDF—is welcome, and I hope Israel makes more of these. The source of the criticism of Israel’s air war in Gaza is a desire to see all parties comply with the law, protect civilians, free the hostages, and end this conflict. I recognize Hamas is not a lawful actor. Hamas uses Palestinian civilians as shields and has committed unspeakable war crimes. Israel has a right to defend itself, but that right isn’t unlimited. The IDF says it upholds international humanitarian law, but it’s hard to see how the conduct of the air campaign in Gaza is lawful.

Marc Garlasco is the military advisor at PAX and a consultant for the Pentagon's Civilian Harm Mitigation and Response Action Plan. He is also a trainer at the Institute for International Criminal Investigations where he is currently training Ukrainian war crimes teams.

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