Current Events: Israel At War The IDF's Conduct

Current Events, Episode 169

israel at war, EXPLAINED: the idf and the laws of war

december 24, 2023

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The tragic killing of three Israeli hostages by the IDF raises questions about the military’s conduct during this war. Is Israel adhering to the laws of war?

An unthinkably awful thing happened last week. Amidst a fierce and hellish battle in northern Gaza, three Israeli hostages were shot dead by IDF troops. It’s an unbearable tragedy: just feet away from rescue after 70 days of what must have been terrible cruelty, they were instead gunned down by the very people who could save them. But it gets worse, for the account suggests that they were shot while surrendering, shirtless and waving a white flag. It’s a violation of the IDF’s rules of engagement, which stipulate that you cannot gun down someone surrendering, terrorist or otherwise. How could this happen?

Of course we have to take into account how awful the fighting was, the constant threat of ambushes, the suicide bombers that could cause soldiers to make the wrong call in the heat of the moment. In that sense it was a mistake; and in all wars, mistakes happen. The question it raises is whether this incident is indicative of the mistakes that happen, or whether it’s indicative of the way Israel is acting. Is the IDF’s much-vaunted moral, ethical, and legal restraint, falling apart in this war?

Now, first of all, remember the last episode on conversations not worth having: this isn’t an episode on whether Israel is committing genocide. It’s an absurd accusation that is solely about demonizing Israel. It has no bearing on reality. Nor am I engaging here in the left’s obsession with Israeli war crimes, which seems to apply to every single Israeli military action ever. That charge has long since lost its potency, currency, and seriousness; a textbook version of the boy who cried wolf.

Israel was savagely attacked on October 7 and its attacker — Hamas — has promised more of the same. This is a war that Israel did not want and did not start. It has a right to self-defense — and, as a democratic country, an obligation to protect its citizens. This is a just war: morally, ethically, politically, and legally. Israel can use force, and it can use the force it deems necessary to eliminate the threat against its citizens. It is also imperative that Israel hew to the laws of war, proper military conduct, the expectations of its citizens and its citizen-army, and, to a certain extent, the international community.

This is a just war. And Israel has to respect the laws of war. We have to hold both these ideas.

These obligations apply to everyone. We imagine them to be, and understand them to be, about war between two countries. But they also apply to terrorist groups. Not that Hamas considers itself bound by international law, so already Israel starts with a major imbalance. But let’s consider Israel’s conduct, and a few ways of thinking about what is happening. I’m your host, Jason Harris, and this is Jew Oughta Know.

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Urban warfare is notoriously difficult, dangerous, and deadly. Gaza might be the worst of them all, offering perhaps the biggest challenge to the rules of law that has yet been devised. The laws of armed conflict weren’t really built with a place like Gaza in mind, where the attacking power uses civilians as human shields so extensively as for the two to be effectively merged. Of course, these laws are intended to have a universal application in any and all situations, and both Israel and Hamas are obligated to follow them.

The media is quick to report any allegations of Israeli atrocities. Last week was an image of a couple dozen Palestinian men stripped down to their underwear with their arms raised. There’s a valid military reason for this: to make sure they don’t have concealed weapons, or the classic Hamas tactic, suicide vests. And several of the men did, indeed, have weapons. Yet the accusation is that this was a deliberate act of humiliation by Israel.

But here’s what the media doesn’t report, and it’s an important part of the story of Israel’s conduct. Tens of thousands of Israelis soldiers are deep inside Gaza and have been for weeks, embedded with hundreds of thousands of civilians whom the army encounters everyday. The entire world is scrutinizing every single Israeli movement. Yet for an army accused of engaging in genocidal retaliation for October 7, I haven’t seen a single report — not one — of an Israeli soldier who, say, grabbed a Palestinian woman and raped her behind his tank. No reports of civilians lined up against the wall and executed. No wounded people left on the side of the road to die. No children kidnapped and brought back to Israel. I’m not telling you such things could never happen, or maybe we just haven’t heard about them yet. But so far, have you seen a single credible accusation? I haven’t.

This isn’t the behavior of an army waging a campaign of revenge. These are the actions of an army whose goal is to destroy the enemy that seeks to destroy them. Israel has been saying all along their fight is with Hamas, not the Palestinian civilians. And Israel must recover the hostages. The Israeli army understands why it has to fight in Gaza, and what their purpose is there; and for sure they don’t want to stay a minute longer than they have to. 134 soldiers have been killed already, an enormously high number by Israel’s standards. This isn’t about revenge or genocide: it’s about eliminating Hamas to ensure Israel’s security. A goal that, in the long run and if the Palestinians and the world can take advantage of it, will help the Palestinian people, too. But the war has to be won: the threat of Hamas has to be eliminated.

I realize that the absence of Israeli atrocities isn’t as headline-grabbing as the accusations. But in this media environment and the PR battle for public opinion, where the assumption is that Israel is genocidal and the Palestinians just victims, it’s a hugely important part of the story that I don’t see anywhere outside the Jewish and Israeli media.

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So let’s do our usual: cram a years-long law school program into a few minutes: broad points instead of a comprehensive deep dive, and keep in mind that I am not a lawyer steeped in international law — although I did do some work in this arena back when I was a congressional staffer. In thinking about Israel’s conduct in terms of the laws of war, we’re looking at three principles: distinction, proportionality, and precaution.

Start with the principle of distinction. Israel must distinguish between civilian targets and military targets. Here we have a pretty clear cut situation: Israel does not deliberately target civilians. That is, the IDF has not attacked targets for the purpose of killing civilians, nor deliberately attacked purely civilian targets, such as hospitals. The problem is that Gaza poses unique challenges to the principle of distinction. Every civilian infrastructure, from private homes to schools to hospitals, can be or is used as a military platform: hiding tunnels or storing weapons, or gathering places for Hamas fighters. Making it even more complex is that so much of this infrastructure is dedicated to targeting civilians, not another military. When such places are used for military purposes, then they no longer enjoy the protection of distinction. Israel’s can’t bomb a hospital filled with patients; but it can carry out operations against a hospital that’s being used by Hamas.

Israel has been accused of “indiscriminate” bombing, that is, of just dropping bombs willy-nilly around Gaza without concern for where they land. Even President Biden said this, though he quickly walked it back. As far as I know, there is no evidence that Israel has been doing this. I know it looks that way because of the level of destruction of some of these areas in Gaza. But Israel claims they are legitimate military targets, which it has backed up with plenty of videos, photographs, and other accounts. The IDF’s standing orders are to follow international law in all situations.

Still, though, Palestinian civilians have been killed. The number reported now is around 20,000 Gazans killed. There’s no way to know how true that number is. Remember that the number comes from Hamas, and Hamas doesn’t distinguish between its own fighters and civilians. Nor does Hamas provide any transparency as to where they get that number. And given that more than 2 months after October 7, Israel is still counting and identifying bodies, it’s hard to believe that in the chaos of Gaza and the displacement of more than a million and a half people, that Hamas is able to provide such precise figures so quickly after Israeli attacks.

But let’s not pretend that this war hasn’t been devastating to the people of Gaza. It’s Hamas’ responsibility, but we can be sure that Israeli forces, too, have killed civilians, however unintentionally. That brings us to our second principle: proportionality.

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I’m looking at that 20,000 number from Hamas, even if it isn’t true, and the pictures of devastated neighborhoods in Gaza, and the million and half people displaced from their homes, and it all looks disproportional to me. Excessively aggressive. Does Israel really need to destroy this much of Gaza?

Proportionality means that an individual operation cannot be excessive in relation to the expected military advantage. Israel can’t obliterate an entire neighborhood with an air strike because there is one Hamas guy standing there with a pistol. This is the number one accusation that I’m seeing against Israel — that its behavior in Gaza is completely disproportionate.

But proportionality doesn’t work like that. Captain Tomer Herzig, an IDF Legal Advisor, explains that it doesn’t mean “counting casualties on one side and then asking if that’s too many compared to the casualties on the other side.” Proportionality, he says, is a question of conduct, not of result. He says, “for example, when we carry out strikes on senior Hamas tactical commanders and his operatives, we know that we’re preventing significant harm to Israeli soldiers and civilians, removing a constant threat to our people. This military advantage is crucial, and must be considered when trying to discuss proportionality.” He says that commanders are required to assess this question at the time they are preparing to strike. Of course, he acknowledges that unexpected things do happen, that civilians can get killed. But if the commander didn’t know that ahead of time — because, say, the Israeli attack exposed a tunnel they didn’t know existed, and which hurt civilians when it collapsed — then it doesn’t mean that the attack was disproportionate. Remember, Israel is allowed to use the force it deems necessary to eliminate a threat.

Ultimately, though, proportionality is ambiguous. It’s open to interpretation. We can all agree that destroying a neighborhood to get one guy is clearly over the top. But what if you can kill a senior Hamas commander coordinating attacks on Israel, yet you might kill several Gazan civilians who are standing nearby? How do you assess how many Palestinian civilian lives should be put at risk to save Israeli civilian lives on the other side? And how do you factor in that the entire civilian infrastructure of Gaza doubles as a military base for Hamas, the human shields we know Hamas uses to protect themselves? An outside observer might weigh these calculations differently than the Israeli military which is responsible for those Israeli civilian lives. According to Professor Amichai Cohen, an expert on the international law of armed conflict at the Israel Democracy Institute, you don’t just take into account October 7. You also, he says, take into account the 16 years of Hamas warfare that came before, the current state of Hamas continuing to attack, and also the next 16 years that Israel is fighting to protect itself from. Legally, you’re not looking at cumulative casualties, you’re looking at individual attacks. There’s no real way to evaluate whether this all adds up to an excessive number.

That brings us to the third principle: precaution. Israel has to do what it reasonably can to differentiate between civilians and Hamas. Again, no small thing since a Hamas terrorist looks like a civilian up until the second he pulls out his gun. Amichai Cohen says that one of the main ways to accomplish this differentiation is through warning. Cohen acknowledged that Israel got so much criticism for demanding that Palestinians evacuate from Gaza City at the start of the war. But, he says, this was actually the most humanitarian thing Israel could have done, and was completely within the legal bounds of international law. Cohen says that “the suffering from the evacuation was minuscule compared to what would have happened if Israel had attacked when civilians were still there.”

So we have this international legal framework of distinction between civilians and fighters, of proportionality so that the military benefit is reasonable compared to civilians killed, and precaution to differentiate between civilians and militants — all of this is designed to minimize civilian suffering to the best that one can. Of course, what we’re seeing in Gaza isn’t just limited to the legal questions, but the broader moral sense, as well.

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One of the biggest areas of concern since the war began is the question of humanitarian aid — how to get it to the Palestinian civilians who need it, while avoiding it falling into the hands of Hamas.

Once again, the IDF Legal Advisor, Tomer Herzig, explains that Israel, as a party to an armed conflict, doesn’t have the obligation to provide supplies. However, Israel is “required to allow the access of supplies essential for the survival of the civilian population.” But this isn’t an absolute — fear that the supplies will be diverted from civilians, or provide a military advantage to Hamas, are reasons that aid might be held up or temporarily banned altogether from Israel’s side. It took several weeks at the beginning of the war for Israel to negotiate and establish a security regime to check all the trucks going into Gaza.

Even though there is evidence that Hamas has stolen supplies from civilians, there are still hundreds of trucks of aid going through the Egyptian crossing point, called Rafah. Israel has opened two of its own crossing points that were previously closed, called Nitzana and Kerem Shalom.

So Israel could deliver more aid and faster. Israel has the technical abilities to do this. Some of those supplies will end up with Hamas. The military will have to judge what the right ratio is. Hopefully an increase in aid to reduce civilian suffering — which should be Hamas’ job as the government of Gaza — will see a boost in Israel’s public image. Don’t count on it, but it’s still the right thing to do.

But is there more that Israel can do? Certainly doubling down its focus on adhering to the laws of war, doing everything it can to minimize civilian casualties. We’re not in a great place to judge this, since we can’t say with certainty how many civilians have been killed in individual operations. Nor, because of military secrecy, the precise tactics Israeli soldiers use on the ground. We do know that historically Israel does adhere to its legal obligations, often even going beyond, particularly when it comes to warning civilians. The shooting of the three hostages could suggest that the rules are falling apart. But the fact that the Israeli army took immediate responsibility could also suggest that such events are rare and taken very seriously.

Professor Cohen says that because there are always violations of law in armed conflict, “the test for an army is whether it’s able to respond to these violations — investigate, even indict, convict if needed, and in this way preserve the obligation to the laws of armed conflict.” Time will tell whether Israel is doing that and, again, the early reports suggest that they are.

Another idea I’ve seen kicking around is deploying field hospitals. Israel is one of the best in the world at this. Whenever there is a natural disaster somewhere in the world, the IDF is often the first on the ground with a mobile field hospital. There are suggestions that it could set up some of these in the Negev Desert outside Gaza. That is, close enough from Gaza to quickly get civilians out. And far enough from Israeli population centers where tight security measures could be ensured. Here, too, Hamas fighters will find themselves able to camouflage as civilians. All it would take is one terrorist getting out into Israeli territory, or blowing himself up, to wreck the endeavor.

The IDF has a vast apparatus in place to prevent the targeting of civilians, which includes things like pre-targeting reconnaissance, warning civilians who may be in harm’s way, and maintaining the ability to abort an attack at the last minute. The IDF’s legal department is deeply involved in planning, monitoring, and investigation. It’s a professional army with a high demand for morality, and the doctrine is to follow the laws of armed conflict in all cases.

Ultimately, there is perhaps the biggest question of all: should the IDF even be in Gaza?

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Should the IDF be in Gaza? Was invasion the right call? Is the invasion even working? Is it employing the right strategies and the right tactics in the right places? Is Hamas losing steam, is the threat to Israel lessening?

Only Israelis can make that call, and reward or punish their politicians and military leaders accordingly. The future will be filled with military historians picking apart this campaign, judging it a success or not.

Zooming out, Professor Cohen considers the judgment regarding Israel’s conduct with respect to following international law. That doesn’t necessarily lay with, say, the United Nations. Cohen says that, "Israel is looking for its legitimacy by its Western allies — nations with which Israel has a common set of values, that they will support the campaign and claim that Israel is abiding by international law.” We’ll know this is working if Israel’s main allies in the United Nations, like the United States, the UK, France, and others, continue to support it. If they suddenly stop, that will be a signal Israel is losing credibility.

In the long term, and it’s already starting to happen, Israel and its military will learn, absorb, adapt, and deploy the lessons of this conflict. We already know some of these challenges. The IDF is too reliant on sophisticated technology. There are deficiencies in combat training methods and practices. There’s not enough specialization in the type of urban warfare they could have foreseen they’d need to eventually fight on a huge scale. But every army in the world has weaknesses. These don’t suggest mass Israeli atrocities against Gazan civilians. Eventually Israel will have to take stock of this war, asking itself the necessary questions about professionalism and morality. Where it was found wanting, responsibility will be needed and reforms made necessary.

The threat is enormous, terrifying, deadly, and instantaneous. Israeli soldiers, most of them ordinary citizens suddenly thrust into battle, are encountering ambushes and fake surrenders designed to lure them close. Everything is booby trapped. Everywhere are Hamas fighters hidden in camouflaged tunnels, who pop out to fire and go back down into the earth. The tunnels are fortresses, laced with explosives, covered by sniper positions, and partitioned by blast doors to make it hard for soldiers to advance more than a couple feet at a time. Houses are filled with stores of weapons, as are schools and mosques. And over here you have IDF soldiers approaching a cluster of civilians — but there is one in the mix who looks like he might be Hamas. A 19-year old kid has one second to decide whether to shoot or risk him and his friends and the civilians being blown up by a suicide bomber. There is no second chance. And there’s no taking it back if you’re wrong.

Now the soldiers have to add a new terror: that the guy screaming at them in Hebrew might be a hostage who managed to escape, or might be a terrorist laying another ambush. Seconds to decide on a result that, either way, will last for eternity.

The response to the killing of the three hostages has demonstrated the range of emotions Israelis are experiencing. Yonatan Shamriz, the brother of one of the hostages, recalled his phone call with the Minister of Defense. “I told him I’d hunt after him until he is in the ground — him and everyone sitting over there. That they won’t have any rest. [I told him] that they’re responsible for what happened. I told him that I wouldn’t rest and would haunt him in his sleep…Those who were responsible and abandoned us cannot be part of the country anymore. I have a mission now… to get rid of everyone [in charge], and start over with something new.”

Iris Haim, the mother of Yotam, one of the three hostages killed, released a message to the soldiers who killed him. It read in part, “I wanted to tell you that I love you very much and I hug you here from afar. I know that everything that happened is absolutely not your fault, and nobody’s fault except that of Hamas. And don’t hesitate for a second if you see a terrorist. Don’t think that you killed a hostage deliberately. You have to look after yourselves because only that way can you look after us. At the first opportunity, you are invited to come to us, whoever wants to. And nobody’s going to judge you or be angry. We love you very much. And that is all.”

They say you go to war with the army you have, not the army you want. Could it be any clearer that Israel goes to war with the army it wants.

As always, jewoughtaknow.com and my email is jewoughtaknowpodcast@gmail.com. Am Yisrael Chai — the Jewish People Live.