Analysis: When blood and sand, law and war mix

A new law of war frees up the IDF, and reduces civilian casualties.

PALESTINIAN FOREIGN MINISTER Riad al-Malki (center) leaves the International Criminal Court at the Hague on August 5, 2014, saying there was ‘clear evidence’ Israel had committed war crimes in Gaza. (photo credit: Courtesy)
PALESTINIAN FOREIGN MINISTER Riad al-Malki (center) leaves the International Criminal Court at the Hague on August 5, 2014, saying there was ‘clear evidence’ Israel had committed war crimes in Gaza.
(photo credit: Courtesy)
Three pictures sum up the dilemma.
One is a picture of four unarmed Palestinian minors being blown up on a Gaza beach by, according to foreign sources, an IDF attack drone. They were just in the wrong place at the wrong time and had been misidentified by the IDF drone as Hamas naval commandos.
An innocent game of exploration or maybe hide-and-seek turned into a tragedy of sand and blood. This July 16, 2014, incident is well-known worldwide.
The second is a picture of an Israeli preschool in the south during the 2014 Gaza war. The peace and innocence of the preschool has been shattered by a Hamas rocket that has destroyed the school’s ceiling and has flung partially burnt and unrecognizable toys and magic markers into disarray. But because none of the children were killed, this picture is less well-known globally. The children survived either because they were in a bomb shelter or had already evacuated their village for safer Israeli cities farther north.
Are these two pictures connected?
In the ongoing debate over how to interpret international law in the context of asymmetric wars – wars being fought in urban settings between powerful Western-style armies and weaker guerrilla-style militias using their citizenry as human shields – the answer to this question may be decisive.
Decisive means decisive in terms of whether the International Criminal Court prosecution, which has been preliminarily probing the 2014 war since January 2015, will dive deeper into the Israeli-Palestinian conflict.
One more picture could also have a major impact.
A split picture of Israeli soldier Hadar Goldin being kidnapped by Hamas as its fighters broke a cease-fire on August 1, 2014, with a series of attacks on IDF positions near Rafah alongside a picture of the IDF leveling some 200 buildings in the area to try to rescue Goldin and to eliminate the Hamas units that engaged them.
The incident has been referred to as Black Friday because it was the incident in the war in which the single largest number of Palestinian civilians were killed by the IDF.
Then we move these three pictures into the present. In the process, we also eventually get a unique view into the IDF’s war-making and targeting process, the usually hidden and classified role of its intelligence teams and the broad question: How well does the IDF investigate itself?
In August, IDF Military Advocate-General Maj.-Gen. Sharon Afek closed the Black Friday probe, the most important legal decision relating to the 2014 war, without criminal charges – though that merely added to a line of decisions to close all war-crimes cases to date, other than a series of cases against IDF soldiers for theft.
With a years-long debate about how many Palestinian civilians died in that August 1 battle between the IDF and Hamas (estimates had ranged between 30 and 150), the IDF concluded that it had killed some 70 civilians, but had not committed any crimes.
The decision had an even greater impact because it came only days after reports in the Intercept and The Jerusalem Post exposing the entire IDF internal file regarding the Gaza beach incident.
While the coverage in the reports was very different, they both raised more penetrating questions about the sufficiency of IDF intelligence and the sufficiency of IDF warnings.
In the bigger picture, the reports delved deep into the debate about what types of borderline targets should be considered legal in asymmetric wars.
IN A recent book, former IDF chief justice and paratroops commander, and IDC Herzliya professor, Maj.-Gen. (ret.) Yishai Beer confronts these issues with a rare combination of military and academic experience along with a readiness for brutal honesty and self-evaluation. There are literally almost no individuals with an academic background who have delved as deeply into field command issues and the military judicial establishment.
In Beer’s book, Military Professionalism and Humanitarian Law: The Struggle to Reduce the Hazards of War, he argues that there is a split over interpreting international law between military lawyer practitioners and between academics and human-rights advocates which must be bridged.
This split might as well be a chasm.
He explains that military lawyers rarely take the time to fully conceptualize what they do and the bigger picture as well as to fully study international law beyond the specific concrete issues they are dealing with. Also, he says that militaries take into account humanitarian concerns, but only after a much stronger focus on achieving their military goals.
What this means in practice is that the Israeli security cabinet, mostly led by the prime minister and the defense minister, set goals for a conflict – lately these goals are usually to get Hamas to stop firing rockets on the Israeli home front. They will also define how deep IDF ground forces, versus its air force, can penetrate into Gazan territory to achieve the quiet with a general understanding of a tolerable approximate casualty threshold for Israeli soldiers and Palestinian civilians. Top IDF commanders then define which units will penetrate Gaza, when, what points they should stop at and their basic maneuvering strategy.
Before a conflict, the IDF generally, air force and naval intelligence have assembled a “target bank” of Hamas locations. The last step in all of this is that the target banks have maps indicating sensitive civilian sites nearby which cannot be targeted unless Hamas takes them over sufficiently to change their character to essentially military. In many circumstances, the IDF will also issue warnings to civilian locations of an imminent attack with fliers, telephone calls or a non-explosive warning shot on the relevant roof.
In contrast, he says that academics and human rights advocates mostly lack an understanding of how war actually works and how the dry law of conventions can and should be applied in the real world. Further, he says, they focus almost exclusively on humanitarian concerns and basically ignore a military’s need to achieve a mission.
He also describes a dizzying disconnect, where the military lawyer’s approach triumphs during times of war and the academic’s approach during times of peace, with both sides annoyed at the criticism they receive from the other side.
As a starting point, Beer suggests that in analyzing war-related issues, all involved need to adopt a professional military mentality – looking at things in terms of what really happens on the battlefield and not just analyzing philosophical issues in a classroom.
He says that this is crucial for multiple reasons.
First, he explains that without fully understanding military issues and the way things work operationally on the battlefield, even experts’ views of key issues are incomplete, missing large pieces of the picture.
Taking on a battlefield mentality could initially have the effect of insulating militaries from some charges as it could presume greater sympathy with military commanders and the way they view moral dilemmas. But after that initial effect, Beer says that grasping a battlefield mentality on the issues will allow pressing militaries to reduce the scope of what kind of objects they can consider attackable due to “military necessity.”
Essentially, he argues that critics of militaries have made a mistake in not delving into understanding real-world battlefields. This gap allows critics to stay pure at a philosophical level but forced them to cede the playing field regarding the details of what kind of attacks are truly necessary.
WHAT DOES all of this mean at a broad level?
It means Beer is contending that critics of militaries would prefer to slam all attacks where civilians were killed as criminal. They would prefer this even if their criticism is generic and they know it will not be taken seriously by military lawyers.
However, Beer’s new approach suggests that critics get “their hands dirty,” in which case they would likely need to acknowledge the legality of many attacks in which civilians are killed by Western militaries as non-criminal collateral damage, but a tragic and inevitable result of war. Instead they would need to focus their criticism on a much more limited list of specific attacks.
Beer says that if they got their hands dirty in this way, they would have a better chance of identifying core interests of a military in any given war. Once they did that, critics could challenge specific military targets as possibly not important enough to those core interests to risk civilian deaths.
Arguing that not every tank or machine gun or each military bunker needs to be destroyed to achieve an operation’s broader goals, he says that if critics adopt a military-strategy way of thinking and accept that civilian casualties as sometimes necessary they could get militaries to make a key admission: that in situations when a given military is the stronger power, they do not need to kill all enemy combatants. Rather they only need to attack combatants in circumstances which will help achieve their overall military goals.
Here, Beer pulls a stunning legal move.
In international-law speak, since 9/11, Israel, the US and some other militaries have argued that a much broader spectrum of objects can be targeted if “military necessity” is viewed in broad terms of defeating the adversary.
This means that not just fighters but even finance and economic sectors, internal security forces and government ministries of terrorist groups – like Hamas or ISIS – could now be attacked.
Beer turns this trend on its head and says that viewing a military’s goal broadly is a two-way street.
While militaries have used their broader goals to justify a more permissive approach to targeting, something which could be justifiable, he counters that a fully honest military approach would admit that many targets which might seem legal because they are combatants, should not be attacked. Not because there is no legal basis, but because it is not smart.
This would be because attacking some combatants is not really important to defeating the adversary. Not every combatant represents an existential threat and some nominal military interests that are not core to the mission can be ignored due to humanitarian concerns.
Furthermore, Beer suggests that militaries distinguish between the threat posed by different kinds of military units.
As an example, he suggests that through this new lens it could be argued that all or many of the Iraqi forces – which fled Kuwait into Iraq on Highway 80 during the Gulf War and which the US decimated during their retreat – could have been spared in light of their complete retreat.
Why? Because that retreat fulfilled the US’s stated war aims that Iraqi forces leave Kuwait. Maybe elite Iraqi forces might have been worth attacking, but not forces that US intelligence acknowledged were poorly trained and looking to desert their posts.
WHAT DOES any of this have to do with the three pictures from the beginning – the Gaza Beach incident, the rocket attack on an Israeli preschool and Black Friday?
The IDF has said that it had the right to target the four Palestinian minors because it had intelligence that they were Hamas naval commandos and believed they were. The mixture of blood and sand that this caused was horrifying, but in real time, as opposed to retrospectively, it says the decision was legal.
The Post’s exposure to the full internal file brought out new fascinating revelations about the hotly debated intelligence and how the decision to strike was made.
Although the Post is prevented by the censor from revealing the exact nature of the classified intelligence since aspects of the file were not properly blacked out, the Post can confirm that the intelligence was of a strong and specific quality in the spectrum of what “intelligence” can provide. “Weaker” intelligence might involve a pattern of past movements by a potential combatant-target and “stronger” intelligence might involve intercepting different kinds of actual communications from a combatant-target about where they intend to go on a specific day – not just about the past.
The IDF has noted that this event occurred not long after Hamas naval commandos had pulled off a surprise attack against an IDF position at Zikim Beach. But the IDF repelled that attack with no losses. Also, it has not disputed that it could not tell in real time, even with its available continuous visual coverage, whether they were commandos or children – a point hammered home as highly problematic by the human-rights organization Adalah.
In the internal file, “Maj. Y,” who led the training of alleged IDF drone operators, made a striking confirmation. He said that even he could not have identified whether the four were commandos or children due to the beach’s unique layout and lack of houses and other structures to use for height comparison.
Moreover, instead of claiming that there was an imminent attack expected, the IDF has said that the moment provided a chance to eliminate potential attackers at a known point who might later be hard to track.
This all then goes to the central question of how war-time decisions are made currently by the IDF and in many Western armies. Former IDF intelligence chief of analysis Brig.-Gen. (ret.) Itai Brun highlighted in a recent book that targeting and intelligence have shifted to often focusing on eliminating a high quantity of Hamas targets, even if the quality is low.
Beer’s approach would appear to say that something significant is missing from the process and should change.
To achieve Israel’s goal of either stopping Hamas’s rocket fire or eliminating its 31 attack tunnels, Beer’s theory would suggest that four Hamas naval commandos, who presented no immediate threat, did not need to be targeted, while also suggesting the IDF could target Hamas’s senior commanders “off-battlefield” if that may contribute a cease-fire.
And if the IDF publicly and justifiably defined destroying any Hamas naval commando as a central goal of its operation, then possibly even those commandos could still be targeted while they were just meeting simply because of their status as naval commandos.
But more broadly, in Beer’s approach, the IDF and other Western armies would get both a freer hand and a more limited hand in targeting.
They would be freer from knee-jerk blame for civilian collateral damage when striking a senior adversaries’ commanders. At the same time, they would need to restrict targeting adversaries’ combatants more in cases where the connection to achieving the overall strategic goals is more tenuous.

HOW WOULD this work with targeting rockets being stored for later attacks on Israeli preschools, but which were not being used in the moment? Or targeting possible low-level Hamas operatives in civilian buildings based on estimates of where the Hamas soldiers might be fleeing a battle? And what about where civilians might be killed by indirect effects of the strike’s explosions, such as being caught in unexpectedly collapsing structures nearby?
Questions like these go to the essence of the controversy of what occurred on Black Friday.
Two hundred structures were destroyed and there were well over 1,400 major strikes by the IDF, which killed only 42 Hamas operatives.
By any measurement, Beer’s reasoning would strongly appear to suggest that even if each specific attack that led to killing the 70 Palestinian civilians could be explained as legal, that something was desperately wrong with using that much firepower to wreak that much destruction while achieving so little in terms of broad military goals.
The current mentality of many Israeli critics is to jump on the volume of civilians killed as clear evidence of war crimes. In turn, the IDF easily dismisses this as populism because it does not analyze the individual attacks’ circumstances or the intent of those involved. Analyzing individual circumstances and intent is crucial in the laws of war and criminal law.
Beer would likely depart from these views as not bothering to try to understand the complex military situation on the ground nor the IDF’s broader military goals.
However, he would come back with what he would call a much stronger objection: that the volume of force used on the targets available did not align with the IDF’s publicly stated goals. How would destroying 200 above-ground buildings proportionally eliminate 31 underground attack tunnels even if some of the tunnels had connections to those buildings? How would killing only 42 Hamas fighters with 1,400 strikes give Hamas enough pain to bring about quiet?
The proof is in the pudding. Despite the 1,400 strikes, Hamas did not agree to a cease-fire for 26 more days – longer than some other entire Israeli-Arab wars.
Also, with a deeper military understanding, critics might be able to ask more legitimate questions about IDF intelligence.
Human-rights critics could ask: How well did the IDF warn civilians or make sure civilians were not in the area that it pounded? The IDF’s explanation is that most civilians had already evacuated during earlier stages of fighting and that its intelligence indicated there were much fewer civilians left than there actually were. This is true for the IDF’s attack on two buildings near the Balbisi Junction of the Rafah area in Gaza, where it had intelligence that Hamas had a command center but where, unexpectedly, there had been 16 civilians.
But the focus of human-rights critics fails to take into account military necessity. What targets needed to be attacked to achieve the mission?
IN CONTRAST, Beer would put the focus on the military necessity itself.
Is a Hamas command center able to be targeted in the abstract? For sure. Is striking every “Hamas command center” – if they are not housing top-level Hamas officials – important and really a contribution to the public goals of the operation? Beer would say it is hard or impossible too make sense, from a military perspective, of using the force used on Black Friday for so little a military gain.
Instead, he would advocate his new internationa
l law approach as a way to avoid another Black Friday.
And Beer advocates reducing the number of targets a military will attack even sometimes when the intelligence is solid.
From the IDF’s classified internal file, the Post now reveals the full scope of the high-ranking officers involved in the decision to strike Gaza Beach. The group included two brigadier-generals, three lieutenant-colonels, four majors, three captains, two lower-ranked soldiers and another six soldiers whose ranks were censored. Which means that this was not some fly-by-the-pants decision.
There was even an additional lieutenant-colonel from the general IDF military intelligence who joined the air force and naval intelligence teams advising on the operation by making a special visit to the field operations office. The lieutenant-colonel wanted to provide any additional necessary expertise on nuanced Palestinian issues.
The picture that arises from the full raw intelligence details reviewed by the Post shows that the intelligence teams even engaged in extra checks and harbored certain doubts relating to aspects of the targeting. But it also shows that in real time the high-ranking intelligence officers were ultimately convinced that the targeting was legal.
Again, Beer would say the problem was not an intelligence issue. Rather, it was by not realizing that it had been unnecessary, in a broader sense, to target four Hamas naval commandos in circumstances where they presented no danger and in an area whose military or civilian definition was debatable. Put simply, it was not smart or worth it.
Why does Beer see now as the right time to let international law evolve?
Even if making a change was difficult in the past, Beer says now there is a unique window to make the shift.
The combination of asymmetric warfare and exponential changes in technology, precision targeting and intelligence gathering make the timing ideal for a change.
AND SO we return to the pictures of Gaza Beach, the rocketed preschool and Black Friday.
In most of the world’s view, pictures of killed Palestinians on a Gaza beach will always eclipse pictures of rocketed preschools where Israeli children escaped harm. The world will never be able to make sense of Black Friday even if Israel provides the voluminous details it has about each individual attack.
Beer is hoping that Israel, its allies and its fair-minded critics will look deeper into a way to handle situations that may not make for as many one-sided condemnations of Israel as critics want and may restrain some Israeli military action, but will ultimately bridge the divide between the sides and lead to fewer civilian deaths.
After US National Security Adviser John Bolton’s recent speech dismissing the ICC, Israel could just hope that the problem will go away. But the ICC outlasted Bolton under the Bush administration and it could again.
Confronting its critics could mean the IDF would need to change war-making decisions, how it uses its intelligence and how it probes itself, but it might also save Israel from a damaging showdown with the International Criminal Court.