The ground rules in Gaza

As the ground engagement ramps up in Gaza, it is important to preview some of the particular challenges the Israel Defense Forces (IDF) will face while conducting urban warfare. The rules of international humanitarian law (IHL), aka the laws of armed conflict, do not change just because the fighting takes place in a more compact setting — but the application of those rules can sometimes look and feel a little different. 

It is helpful to remember that the laws of war are not designed for an armchair quarterback on a talk show 10 days later, recounting events and critiquing decisions. They are given to commanders in the field to make good-faith judgment calls, in real time, with the best information available in light of the circumstances ruling at the moment. Factors such as technological limitations, available staff, and situational nuances in combat conditions all bear on the analysis of whether a decision is subjectively honest and objectively reasonable — the accepted standard (known as the Rendulic Rule) under the IHL.  

In a cityscape like Gaza, with dense physical infrastructure — including high rises and towers built over terrain with miles of terror tunnels dug deep underneath the earth’s surface — the “battlefield” is nothing less than a 360-degree multidimensional chess board. The facts on the ground, and the ground itself, are constantly, literally, shifting. No intelligence is perfect, no soldier infallible, and IDF officers are at all times sitting across from an opponent that does not give a damn about the rules.  

Take the Jabaliya refugee camp in Gaza, for instance. In the first week of ground fighting, the IDF targeted a commander who was instrumental in planning the Oct. 7 terrorist attack, killing him and several of his lieutenants. Unfortunately, the collapse of several terror tunnels brought down nearby buildings that were not directly struck, killing dozens of civilians. Unforeseeable tragedies happen in a war — everything from secondary explosions caused by hidden weapon caches to the collapse of hidden terror tunnels illegally dug under residential areas. 

War is horrible, war is hell and civilian casualties are tragic, always — but also likely, and even expected. Recognize that this is not in any way unique to Israel or Gaza; United Nations experts say roughly 90 percent of war-time casualties in urban settings are civilians.  

To put that number in perspective, when Israel fought Hamas in Gaza in 2009, the IDF numbers showed a 33.3 percent civilian casualty rate, while its critics said that number might be as high as 60 percent — still a full 30 percent under the international average. In 2014, Israeli officials estimated that around 50 percent of those killed were civilians, while Hamas said it was between 69 and 75 percent. Again, remarkably low. 

Finally, respect the fact that the IDF will follow the laws of armed conflict, even as Hamas flagrantly violates every one of them.  

There are three central principles in the laws of armed conflict: the principles of distinction, military necessity, and proportionality. All three work together to prevent unnecessary casualties while recognizing that some risk of collateral damage is ultimately acceptable in meeting a justified objective — the best way to save the most lives is to eliminate danger as efficiently as possible.  

The principle of distinction requires that attacks are only directed at combatants. The principle of military necessity permits measures that are needed to accomplish a legitimate military purpose, even at the risk of endangering the innocent. The balance between those two lodestars is struck by the principle of proportionality, which forbids attacks in which the expected incidental loss of civilian life would be excessive in relation to the anticipated military advantage gained. The greater the objective, the greater the extent of permitted risk of incidental damage.  

In accordance with the IHL principle of distinction, the IDF will never target a civilian. Of course, civilians can temporarily forfeit their protected status if they engage in “direct participation in hostilities,” including “a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it.” To be clear, the IDF does not consider civilians who ignore advice to leave a designated area before an attack — or who are made to stay there as Hamas’s human shields — to now be combatants or legitimate targets. Those people remain innocent civilians for any proportionality analysis.   

Civilian infrastructure can also become a lawful target if it is used for a military purpose; Hamas is famous for turning residential homes, schools, mosques and even hospitals into control centers and weapons depots. As it relates specifically to hospitals and medical units, under Geneva Convention (I) Article 21 they lose their special protection if they are used to commit “acts harmful to the enemy.” As the Commentary explains, “[s]uch harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.” Take, for example, Shifa Hospital in Gaza City, which in 2014, had become “a de facto headquarters for Hamas leaders.”   

Some mistakenly assume proportionality analysis involves an effects-based calculation accomplished by counting the bodies on either side — this is wrong and only incentivizes the use of human shields. Others erroneously posit that the anticipated military advantage gained by Israel destroying Hamas’s offensive capabilities should be diminished in direct proportion to Israel’s powerful defensive capabilities, including, for example, Iron Dome. That logic is equally invalid, and would incentivize states to invest less in the defense of their own citizens.  

Hamas has the intent and capability to attack; removing that capability is an overwhelmingly legitimate and necessary anticipated military objective that, when weighed against the possibility of incidental damage, allows Israel to take reasonable operational risks in its missions. All that is different in an urban ground-fighting setting is that an officer may have to consider more types of collateral damage in less time, and under harsher/less stable conditions. But the rule remains the same, and Hamas’ abuse of its own people and property only make it more likely that a given decision will be reasonable. 

Still, Israel will continue to do everything it can to save Palestinian lives. Under IHL (AP I Article 57(a)(ii), Israel has the duty to take all feasible precautionary measures to limit incidental harm, and it does this through intelligence gathering and processing, multiple overlapping warning systems, timing their attacks so as to minimize civilian exposure, and the use of means and methods (including choice of munitions) designed to minimize damage while still achieving their legitimate and necessary military objectives. After the 2014 Gaza conflict, then-Chairman of the U.S. Joint Chiefs of Staff Gen. Martin Dempsey commended Israel for going to “extraordinary lengths to limit collateral damage and civilian casualties.”  

From an international law perspective, the IDF is as ethical an army as ever existed or could exist, and as they head into what will likely be a bloody and devastating ground campaign, there are two important truths to bear in mind: every innocent life lost is tragic, and every one of those tragedies is the fault of the terror organization Hamas. A world that wants to see zero civilian deaths should be pushing for Hamas to surrender, not Israel to cease fire.  

Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center.