I read with interest Professor Adil Haque’s legal analysis of the widely criticized attack by the Israel Defense Forces (IDF) on Al Jalaa tower. As is the case with all scholarly discourse from Prof. Haque I have read, I value his informed perspective. However, on this occasion I respectfully disagree both with the analysis and the conclusions he presents on these pages.
The central point of divergence from which I begin the assessment of Haque’s analysis is this passage from his article: “The airstrike on Al Jalaa tower was illegal for the simple reason that the tower was not a military objective (a ‘lawful target’) at the time of the airstrike.” While Prof. Haque correctly bases his analysis on the LOAC distinction rule, my assessment is that his application of the rule is mistaken and that this error produces an incorrect conclusion regarding the unlawfulness of the attack. Our disagreement is reducible, but only in part, to how one applies the law when facts needed to make a full assessment are not publicly available.
As Haque notes, the LOAC distinction rule requires attacks to be directed against military objectives. Military objectives are defined in international law, as Haque points out, as “those 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.”
I agree with the aspect of Prof. Haque’s analysis that the “nature” and “location” aspects of the definition of military objectives do not apply to the assessment of the attack on Al Jalaa tower. However, I reach a different conclusion than he does in applying the definitions of “purpose” and “use” – and this divergence leads he and I to different conclusions regarding the potential unlawfulness of the attack. This form of disagreement also produces different outcomes as to how we assess whether the strike violated the proportionality rule, that is, how we can or cannot tell whether the expected harm to civilians and civilian objects was excessive in relation to the military advantage the IDF commanders anticipated.
Applying the “Purpose” and “Use” Aspects of the Definition for Military Objectives
While treaty law doesn’t establish controlling definitions for the “purpose” or “use” components of the definition for military objectives, the DoD Law of War Manual presents a helpful description of both that, by my assessment, is uncontroversial. According to the description in the Manual, “‘use’ refers to the object’s present function,” while “‘purpose’ means the intended or possible use in the future.” Prof. Haque integrates the “purpose” aspect of this definition into his analysis when he observes that the “tower was a civilian object unless Hamas members had the intent (purpose) to use the offices for military purposes in the future.” (emphasis in original)
According to Haque’s analysis, it is “highly unlikely that Hamas members would return to the tower and resume military activities” at the tower, and this observation leads Haque to conclude that it is “doubtful” that the tower thus qualified for the “purpose” aspect of the definition for military objectives. I respectfully disagree with this analysis and the resulting conclusions – and the explanation presented to the public by the IDF after the attack supports my perspective.
First, I disagree with the assertion that the tower was not being used by Hamas as a military objective at the time of the attack. According to a statement by an IDF spokesperson, the tower “housed the Hamas Research and Development unit,” which “consists of subject matter experts (SMEs) which constitute a unique asset to” Hamas. At least according to the IDF, this Hamas R&D unit that was reportedly present in the tower “used [its] capabilities against Israel in a number of incidents in attempts to sabotage and disrupt the actions of the IDF and of civilians in the area adjacent to the Gaza Strip.” More specifically, a senior Israeli military official told the New York Times that it housed equipment used to try to jam Israeli communications and satellite navigation systems. Lieutenant Colonel Jonathan Conricus said Hamas occupied “several floors” of the building.
Assuming that these descriptions are accurate, it is reasonable for the IDF to determine that the tower’s “present function” (to borrow the description from the DoD Manual) qualified the building as a military objective. Professor Haque considers this characterization and dismisses it by asserting that “Hamas operatives simply moved their computers out [before the attack], leaving only empty offices behind.” In support of this assertion, Haque cites to a tweet from a Times of Israel correspondent, which itself cites to a characterization of the attack presented by a New York Times reporter.
If the claim by the IDF is true that several floors of the building were being used by Hamas to house a research and development unit that constituted a significant asset to the group in its efforts to “sabotage and disrupt” IDF actions in the area adjacent to the Gaza Strip, it seems unlikely that Hamas simply moved all these computers out of the tower and thereby fully deactivated the “use” aspect of the definition for military objectives. In any event, it is difficult to sustain such a characterization based in significant part on a tweet from a news correspondent that is itself solely supported by a reporter’s conclusion that the IDF only “managed to destroy” was “Israel’s relations with the media along with several empty Hamas offices.” The IDF stated only that Hamas “used this time to take items out of the building,” but not how much of the computer and electronic equipment remained behind.
Imagine Hamas, in a tactical retreat from an area, abandoned a one-floor purely military facility that housed such a unit; surely it would count as a military objective for the IDF to destroy that building in the event Hamas might return to collect the equipment or restart using the facility at a later point in the conflict.
Turning then to the “purpose” portion of the definition for military objectives, Haque rests the conclusion that the tower likewise failed to meet this aspect because the IDF “would presumably keep it under surveillance” and this makes it “highly unlikely that Hamas members would return to the tower and resume military activities there.” This assertion, too, is decidedly speculative for two reasons.
First, Haque assumes that the IDF could conclusively determine from surveillance that any person who returns to the tower is not a Hamas operative. If this were possible, perhaps the conclusion that the tower would be used again by Hamas in the future could be ruled out. However, such an assurance would be difficult to achieve based on Israel’s posture in the most recent flare up of violence.
Second, if several floors of the building truly were being used by Hamas to house a specialized research and development unit, it is reasonable to conclude that Hamas members would not be able to remove all of the group’s resources from the building in the fairly short period of time between the prior warning and the attack. Indeed, if it is true, as the IDF has asserted, that “there was no way of taking down only the Hamas facilities that were in the building” and it was therefore “deemed necessary to take down the whole building,” Prof. Haque’s conclusion that it is “highly unlikely that Hamas members would return to the tower and resume military activities there” if the IDF left the building standing seems rather improbable.
In short, the conclusions that the Al Jalaa tower did not qualify for the “purpose” or “use” aspects of the definition for military objectives are both highly speculative at best. If the IDF account is to be believed, the tower qualified for both aspects of the definition and, therefore, qualified as a military objective. According to the LOAC distinction rule, then, the attack would not be unlawful.
Applying the LOAC Proportionality Rule
Professor Haque is obviously correct to conclude that if the tower did not qualify as a military objective, there would be no reason to progress to the LOAC proportionality rule. For this rule to be applicable, some degree of military advantage must be expected before the attack – and if the target does not qualify as a military objective, there is no expected concrete and direct military advantage to assess in relation to the anticipated incidental damage.
Nonetheless, Haque’s analysis does progress past the distinction rule to consider the LOAC proportionality rule for good measure. In this portion of the analysis, Haque concludes that the “expected harm to civilians and civilian objects was excessive in relation to the concrete and direct military advantage anticipated” and that the attack, therefore, violated the proportionality rule.
This conclusion is difficult to sustain, though, because of the speculative assumption, described above, that Hamas had effectively rendered the building a civilian object by “simply mov[ing] their computers out [and] leaving only empty offices behind.” Such an assumption would indeed result in a very minimal expectation of the anticipated concrete and direct military advantage (and IDF commanders would also need to have known at the time that Hamas had somehow left no significant equipment behind). But as the analysis related to the distinction rule concludes above, this characterization is, at best, highly speculative.
Haque is, of course, correct to observe that we, members of the public, “do not know” what military advantage the IDF actually expected from the attack. It is a matter the IDF considered in finding that “there was no way of taking down only the Hamas facilities that were in the building” and that it was therefore “necessary to take down the whole building.” This assertion suggests that those responsible for the attack did assess that the expected incidental damage would not be excessive in relation to the concrete and direct military anticipated from engaging in the attack.
While the entirety of my analysis has been in disagreement with Haque’s conclusions, I do emphatically agree with his concern regarding how the proportionality rule has been characterized by the IDF as well as some scholars engaged in public discourse. This matter of accord involves what I have observed elsewhere is concern regarding the tendency to merge the LOAC distinction and proportionality rules in practice and in public discourse.
Haque hints at this concern when he describes as “grotesque” the assertion that “the proportionality rule only protects civilian objects” and that “the IDF [therefore] argues that expected damage to civilian apartments inside such a building carries no weight in determining the proportionality of an attack.” This is an IDF legal position that has been characterized in scholarly discourse as follows: “as a matter of law, the building is a single military objective, and therefore damage to other parts of the building need not be considered as collateral damage.”
If this is indeed the Israeli military’s position regarding application of the LOAC distinction and proportionality rules, it does not seem that the IDF is alone. As Haque points out, a former IDF Deputy Military Advocate General turned start-up CEO recently observed in relation to the attack on Al Jalaa tower, “If we consider the whole structure to be one military objective, we can also exclude the civilian offices in the building from the proportionality analysis.” Likewise, as Haque notes, a leading scholar recently asserted in relation to the attack that if “the entire building constituted a single military objective, damage [inflicted to it] did not have to factor into the IDF’s proportionality calculation.”
By my assessment, the legal interpretation suggesting that incidental damage does not have to be considered once the target is determined to be a military objective impermissibly merges the LOAC distinction and proportionality rules. When applying these rules in a targeting decision, the first step is to determine whether the target meets the definition of a military objective. Making this determination, though, does not obviate the potential risk of incidental damage that may result from within this target from attacking it.
The U.S. military, by way of comparison, engages with this analysis in doctrine by describing military objectives that are determined to present a concurrent civilian purpose as “dual-use objects.” By this approach, the incidental damage anticipated from within the boundaries of the target by engaging in the attack is evaluated using the standard proportionality rule notwithstanding that the target is determined to be a military objective.
When I conducted training for the targeting community in Regional Command-East while I was deployed to Afghanistan, I discouraged utilization of this term because I found that operators tend to diminish the civilian characteristics of the proposed target when describing it as a “dual-use” object. My preferred approach is simply to describe the target for what it is: a military objective that presents identifiable concurrent (non-combat) civilian characteristics. This permits an inclusive assessment of the incidental damage anticipated from engaging in the attack, which permits a valid proportionality assessment.
Nonetheless, the practice of disregarding any potential incidental damage anticipated within the target area (the “collateral hazard area” in targeting jargon) from an attack simply because the target is determined to be a military objective truly is grotesque, as Professor Haque describes it. Applying this test would permit an attack that inflicts untold incidental damage even if, to relate the standard to the attack on the Al Jalaa tower, the IDF determined that Hamas left behind a single laptop. This constitutes a gross distortion of the plain text of the LOAC proportionality rule, which contains no provision permitting a conclusion that it simply ceases to exist in the target area just because the target is determined to be a military objective.
The distinction and proportionality rules are distinct from one another, both textually and conceptually. Disregarding proportionality even if some incidental damage is anticipated just because the target is determined to be a military objective – and the distinction rule is thereby complied with – is a manifestly erroneous application of the law of armed conflict. If this truly is the IDF institutional understanding of the proportionality rule, lawyers in the International Law Department of the IDF MAG Corps would be well advised to reconsider this interpretation – and the scenario of the attack on the Al Jalaa tower presents a good case study for the need to do so.
Questionable legal standard notwithstanding, the conclusion that the attack violated the proportionality rule is speculative at best. If the IDF actually did determine that “there was no way of taking down only the Hamas facilities that were in the building” and that it was therefore “necessary to take down the whole building,” it seems likely that anticipated incidental damage was evaluated and determined not to be excessive in relation to the concrete and direct military advantage expected from the attack. If this were the case, the attack in fact would have complied with the LOAC proportionality rule – even if the doctrinal application of the rule by the IDF is fundamentally flawed. As outside observers, we would need to know about the actual military intelligence before the strike, including the assessed value of the facility to Hamas, to be able to reach a firm legal conclusion.
Concluding Reflection – Who Decides LOAC Compliance?
The public discourse that was stimulated by the attack on the Al Jalaa tower, including the discourse on these pages, calls to mind an important question that I will address here in closing: Who decides whether an attack complied with relevant rules of the law of armed conflict? As unsatisfying as it may seem from outside of military organizations here in the court of public opinion, the candid answer is that the military organization responsible for the attack does.
This is the case because it is agents of the attacking military organization who perform targeting assessments that apply LOAC rules such as distinction and proportionality. These agents do so while drawing on the training they have been provided by their military organization and by utilizing the means of warfare that have been issued to them for this task. Likewise, it is members of the military organization that must evaluate compliance with the law of armed conflict after the fact – by considering the perspective of those responsible for the attack at the time of the attack.
I close this article with this reflection because, as Professor Haque’s analysis demonstrates, it can be incredibly frustrating to try to piece together an assessment of the lawfulness of the attack based only on the information that is made available to the public, if any, afterward. We scholars, advocates, and practitioners who approach such incidents from the outside are typically left with only a limited amount of information from which to develop an analysis and draw legal conclusions.
As unsatisfying as it is from the outside, the law of armed conflict exists to regulate the conduct of those who are engaged in hostilities. From this combatant perspective, the limitations imposed by the law simply reflect the conduct that states have agreed through prior negotiations are “militarily unnecessary per se.” The universe of truly unlawful conduct when evaluated from this view is much smaller than it appears from the plane occupied by those who approach LOAC compliance with the starting perspective that the law is “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.” (emphasis in original)
An astute reader may recognize that, throughout the present analysis, I have refrained from opining directly on whether the attack on the Al Jalaa tower was, indeed, lawful. This abstention is deliberate – as it is not my place to provide a truly informed opinion since I do not have access to all the information that is available to the IDF. Despite quite reasonable calls in public discourse for the IDF to disclose the “evidence” that was used in approving the attack, informing public opinion is not the primary purpose for intelligence that is gathered and utilized on the battlefield.
While it is not my place as a scholar from outside the IDF to provide an informed, conclusive opinion as to the lawfulness of the attack, stridently engaging with the mode of analysis in public discourse is the province of scholars and practitioners outside of (in this case) the IDF military as an organization. From the perspective of a career soldier turned scholar, I will note that the framework of analysis encouraged by Professor Haque would result in practice in rather unfavorable results.
As I describe above when considering the analysis in relation to the LOAC distinction rule, it is speculative at best to conclude that the tower reverted back to a civilian object by virtue of the warning provided by the IDF prior to the attack. It is likewise unlikely that the IDF could have confirmed that Hamas would refrain from using the tower again after the warning was issued.
In practice, then, there is every reason to believe that the tower continued to qualify as a military objective even after the initial evacuation. If international law truly prevented the IDF from attacking the building in this circumstance, how then could the IDF have achieved the desired end state of neutralizing what was determined to be an adversarial “R&D” unit.
The answer to that question is as simple as it is perverse. In short, the IDF could have refrained from providing the effective advance warning before engaging in the attack. Such a warning is only required pursuant to international law “unless circumstances do not permit.”
Pursuant to Professor Haque’s analysis of international law, there is no question that the building would still qualify as a military objective if the IDF had not provided the advance warning since the Hamas operatives – and all of their computer and electronic equipment – would still be in the building. In the unlikely event that a (proper) proportionality assessment concluded that the incidental damage with all the civilians still inside was not excessive in relation to the concrete and direct military advantage expected, the attack could proceed. While the proportionality rule is more exacting, the feasible precautions requirement in LOAC deliberately maintains a significant degree of discretion for the attacker to decide what measures are feasible – giving the IDF significant leeway to decline to issue warnings in proceeding with an attack.
There is no way to tell how many civilians would have been killed in the strike if the attack had unfolded in this manner. There is no doubt that, whatever the number, it would have been substantially higher than the actual result – which was zero.
In making that assessment, the responsibility would have rested with the relevant IDF personnel involved in the attack – not with Professor Haque, not with me, and not with anyone else outside of the IDF chain of command.
As disquieting as this may seem from the outside, it is a true statement of the law. Here in the court of global public opinion, we should be extremely careful what legal frameworks we suggest military practitioners adopt and how we analyze combat activities. The potentially perverse outcomes that may flow from such well-intentioned endeavors must be cautiously accounted for.
Extreme care must be exercised when characterizing as unlawful efforts to achieve a desired military outcome while taking commendable though legally unnecessary measures to spare the civilian population –- lest such gratuitous but favorable methods are exchanged for more aggressive though lawful tactics. If this version of the law is routinely presented to military agents as the standard with which to comply in order for an attack to be considered lawful, a doctrinal legal analysis as well as civilian persons and objects can increasingly be expected to be the principal casualties of war.