International Law, Hamas, and Proportionality
International Law, Hamas, and Proportionality
A conversation with an IDF Legal Advisor
I don’t need to tell you that this war has been characterized by online misinformation.
We’ve all seen the fake videos online, accusations of IDF airstrikes on hospitals, and AI generated images designed to cause outrage.
We push back against the most egregious lies as aggressively as we can, but perhaps no discussion is so muddied as that of international law.
Overnight, tens of thousands of Twitter trolls, celebrities, and pundits graduated from becoming vaccine experts, Eastern Europe war experts, and AI experts to become armchair international law experts.
The IDF has a strong value system - the Spirit of the IDF.
Beyond these values, however, is an extremely robust international law department. This department is responsible for ensuring that the IDF achieves its operational goals while adhering to international laws.
The International Law Department has three primary missions:
Providing legal guidance for IDF activities regarding the laws of war, humanitarian obligations, apprehension of terrorists, and more.
Strategic legal advice regarding international agreements and liaising with foreign militaries.
Embedding international law into the fabric of the IDF through training and military directives.
The advice of the international law department is binding on all IDF officers, and the unit is independent from the traditional chain of command, so the decisions cannot be challenged by commanders.
I recently sat down with one of the IDF’s legal advisors, Captain Tomer Herzig, a trained lawyer, to discuss some of the misconceptions regarding international law and how they’ve been misapplied to the current war.
Q: What would you say to all the internet commentators accusing Israel of violating international law in Gaza?
A: We’ve been seeing a lot of discussion – online, in the media, in academic circles – about the legality of Israel’s actions in Gaza. But there’s a lot to know before judging any specific instance. Lots of intelligence. Dozens of internal operational discussions prior to most decisions. Decades of experience and training to make sure that commanders making decisions are as well equipped as they can possibly be for recognizing the best legal course of action. Don’t assume. Ask us – we publish what information we can about our processes and how they ensure we act according to the law, so no one needs to guess. In many attacks, there’s almost certainly been a representative of the Military Advocate General who assesses the target. In other cases, the legal aspects and considerations are embedded in the military directives, so the commanders don't have to ask - they just follow the protocol.
Q: Oftentimes, I’ll be asked in interviews about ‘proportionality’ and whether Israel’s response both to October 7th and Hamas activities since are proportional. What would you say to those who claim that our response is “clearly disproportional”?
A: It’s important to start by saying that proportionality in the laws of war doesn’t mean counting casualties on one side and then asking if that’s too many compared to the casualties on the other side. This is one of the greatest misconceptions of international law and reflects ignorance of the law, of the nature of war, and most of all diminishes the humanity of civilians killed.
Proportionality demands we ask whether the expected incidental (meaning unintended and of course undesired) harm to civilians from an attack is excessive in relation to the military advantage anticipated from the attack. Israel is not required to wait for a certain amount of Israeli civilians to be killed in order to hit a military target.
This question must be asked by a commander before ordering an action that could harm civilians. It’s a question of conduct, not of result. 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.
Sometimes, unexpected things happen. For example- after that strike I just mentioned, if an underground terror tunnel system - that the commander did not know existed- collapsed and damaged two buildings, causing harm to civilians.
Does that mean now that the attack is disproportional? No - because the question is what did the commander planning the strike assess at the time the order was given.
Q: I want to ask about another major legal issue when it comes to this war - Gazan civilians and humanitarian aid. What are Israel’s and the IDFs obligations when it comes to allowing aid into Gaza?
A: As a party to an armed conflict, we don’t have an obligation to provide by ourselves supplies to the civilian population. However, we are required to allow the access of supplies essential for the survival of the civilian population.
Although we know that Hamas, the de facto ruler of the Gaza Strip, is still withholding significant amounts of resources from the civilians in Gaza, we’re ensuring that plenty of aid goes in.
But the obligation to allow access of supplies is subject to some conditions, including that there are no serious reasons to fear that the consignments will be diverted from their civilian destination, or provide an advantage to the enemy’s military efforts. That is why we have set up a security mechanism to check the supply trucks who enter the Gaza strip with humanitarian aid, food and water.
Q: Another thing that comes up constantly is the fact that Hamas intentionally embeds itself within civilian infrastructure, like hospitals. How does international law perceive these with regard to their legality as targets?
A: This tactic is one of Hamas’ most deplorable ones.
Many objects that appear to be civilian, are actually used by Hamas to conduct its military operations from. Thus, according to the Law of Armed Conflict, these objects can become legitimate targets. Of course, the IDF still has requirements it must fulfill before these legitimate targets are targeted but the bottom line is that even when seemingly “civilian” or “civilian objects” are targeted, that does not render an attack unlawful.
Specifically regarding hospitals, they have special protection under International law. However, if a hospital is used for military purposes, as the IDF has repeatedly shown, it may lose its protection given certain conditions.
Q: Where can people go if they want to learn more about international law and its application in this war?
A: A week ago, the Israeli Ministry of Foreign Affairs published an excellent report on key legal aspects of this war.
There have been so many misconceptions about what international law is, how to apply what seem to be complex and hypothetical rules to the extremely real situation on the ground, that it’s clear that this report should be very useful to the ongoing conversation worldwide about the war.
One of the reasons this is so important is that when wielded incorrectly, even by those who intend well, international law can be incredibly dangerous. I mentioned this in a previous newsletter about human shields too but I’ll say it again.
If Hamas exploits civilian infrastructure - say, fires at troops from a hospital, like it did from the Sheikh Hamad bin Khalifa hospital or builds terrorist tunnels under them, like it did with the Indonesian hospital, and then Israel, and Israel alone, is condemned… this encourages Hamas.
It tells them that the strategy works. And terrorist organizations around the world pay attention.
Operational Updates
Southern Front
Yesterday, IDF troops operated in the northern Gaza Strip and identified four terrorists in their vicinity. The troops directed a UAV to the area and killed three terrorists. The UAV continued in pursuit of the additional terrorist, who unsuccessfully attempted to flee through crowded alleyways.
In the last day, IDF soldiers began operating in the Al-Shati Camp in the northern Gaza Strip. During the operational activity, the soldiers killed numerous terrorists and uncovered terrorist infrastructure in the area.
Following the repeated calls by the IDF to Gazan residents to evacuate from northern Gaza for their own safety, the IDF is enabling a passage from the Shifa, Rantisi and Nasser hospitals.
Northern Front
Last night, an IDF UAV struck a terrorist cell that attempted to launch anti-tank missiles toward northern Israel, near the area of Metula.
Terrorists launched anti-tank missiles toward the area of Dovev in northern Israel. A number of civilians were injured as a result of the launches. IDF forces responded with artillery fire towards the source of the missiles. In addition, fighter jets struck a number of Hezbollah targets in Lebanon, including military infrastructure used by Hezbollah to direct terrorist activity.
A number of mortar shells were fired toward northern Israel, lightly injuring 7 IDF soldiers. Artillery fire was directed at the source of the launches.
Quote of the Day
We recently released a recording between an officer in the Coordination and Liasion Administration (CLA) and the manager of the Shifa hospital, in which he offers different secure routes for evacuation:
“Al- Wahda Street, east of the hospital is open… there are no Israeli forces on the entire eastern side of the hospital”
What I’m Reading
Hamas Needed a New Way to Get Money From Iran. It Turned to Crypto - Wall Street Journal
A fascinating look into Hamas’ financing using cryptocurrencies and digital wallets.
We all appreciate the resources you are all applying on the front of hostile media.
Your patience is of biblical proportions.
I am sure the IDF will eventually teach other armies a thing or two when they are faced with similar dilemmas in defending their civilians.
Keep up the good work because you are doing it for your country and for the hostages - NO we have not forgotten them!
Clear, concise and accurate
These posts are important now and for the future
Hamas supporters pervert clear principles of war in a well organized disinformation campaign
where “explaining means you are losing”
the far left is very well organized online
keep fighting
your work is very important