Israel, IHL, and the Al-Jalaa Tower
The most recent flare-up of active hostilities between Israel and Hamas once again brought to the forefront of legal discussions questions of responsibility and accountability for civilian deaths and damage to civilian property caused by Israel’s attacks in the Gaza strip (as well as for death and damage caused by Hamas rocket attacks on Israel). Israel has been blamed for causing the death of more than 60 children. It has also been criticized for engaging in specific attacks that resulted in many civilian casualties, including entire, or almost entire, families. The ten members of the Al Hadidi family who were killed on 15 May 2021 in an Israel Defense Forces (IDF) attack are one such family.
A specific incident which also occurred on 15 May 2021, and which garnered broad international attention, is the attack perpetrated by the IDF against the Al-Jalaa Tower. The 12-story building in Gaza City which housed, among others, the media offices of the Associated Press and Al Jazeera, was entirely destroyed (no civilian casualties were reported, however). In a recent Just Security post, Professor Adil Haque claimed that the destruction of the Al-Jalaa Tower in Gaza was a violation of international humanitarian law (IHL). According to him, the building allegedly served no military purpose at the time and the attack on it ran contrary to principles of distinction and proportionality. Professor Brian Cox, however, maintained that according to the information provided by the IDF the tower was a legitimate military target, and that there is not enough information to declare the attack unlawful.
In this post, we focus on two aspects of the debate over the legality of the attack on the Al-Jalaa Tower. First, we explore the interplay between effective early warnings and the assessment of a target’s military value at the time of an attack. Second, we examine the legality of attacks on military targets motivated by strategic reasons that exceed the four corners of IHL. We do not plan to discuss here, as some commentators on the hostilities in Gaza have, the very legitimacy of IHL and the morality of engaging in a professional legal discourse about what are claimed to be fundamentally immoral acts.
Recent Critiques of the Al-Jalaa Tower Attack
In their posts, both Haque and Cox focused on the use of the Al-Jalaa Tower by Hamas as their starting point. Haque asserted that because the IDF gave prior warning to the residents before the attack, all military personnel and equipment were evacuated from the tower and whatever remained was of little value to Hamas at the time of the attack. Hence, even if a part of the tower remained a legitimate military target, the harm to civilian property caused by the destruction of the entire tower was excessive in relation to the military advantage gained from the attack. Cox, however, doubts Haque’s assessment of the facts, as well as his normative analysis. On the facts, Cox quotes IDF claims that Hamas was unable to fully remove all of the “vital electronic equipment” in the short window of time provided to it. On the law, it seems as if Cox pays much more attention to the potential use of the tower in the future (i.e., following the return of Hamas to its facilities in the tower) and broadly construes the definition of the legitimate military objective.
Haque and Cox agree, however, on one normative issue: It has sometimes been claimed on behalf of Israel that once a building has a military target inside of it, which cannot be attacked separately from the rest of the building, then the entire building can be designated a legitimate target of attack, and that in that case, the attacking party can completely disregard the civilian parts of the building for the purpose of applying the principle of proportionality (see, for example, here and here). According to this line of reasoning, once the Al-Jalaa Tower was found to house military assets (the Hamas offices from which intelligence and electronic warfare activities were undertaken), the Tower could be destroyed without even considering harm to “civilian property.” Both Haque and Cox consider this claim to be an erroneous, and even grotesque, understanding of IHL.
Although both of us live in Israel (in Modiin—a city that during the recent round of hostilities was subjected to several rocket attacks, all intercepted by the Iron Dome anti-missile system) and closely follow Israeli media reports about the recent hostilities, we have no particular knowledge about the factual disagreement between Haque and Cox. On the basis of our long-standing familiarity with IDF decision making, we find it difficult to believe that a building serving absolutely no value to the military campaign at the time of being targeted would be attacked (indeed, the IDF made in recent days more specific allegations about the military use of the building, but did not make public the intelligence materials underlying these allegations). We find this especially unconvincing given the anticipation of an international uproar over civilian causalities (although it appears that only damage to civilian property occurred) and the sensitivities related to the presence of international media agencies in the building. At the same time, we do accept—and expand on it below—the possibility that there were ulterior motivations for the Israeli attack on the Al-Jalaa Tower, which may be at odds with the definition of military necessity under IHL.
Warnings and the Diminishing Value of Military Targets
Article 57 to the First Additional Protocol requires that:
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
The ICRC’s commentary on the article [para 2223] suggests that circumstances which do not require effective warning include, inter alia, operational contingencies, such as the need for surprise. Were the IDF to assess in advance that Hamas would evacuate much of its military equipment from the Al-Jalaa Tower after being warned of the impending attack (as Haque claims it did), it could have avoided giving a warning altogether. Of course, it may very well be the case that absent such a warning, destroying the entire tower (on the assumption that the IDF could not, practically speaking, target only the specific part from which Hamas operated) would violate the test of proportionality, since it would result in a significant collateral harm to civilian lives.
Still, the application of the principle of proportionality sometimes involves operating in legal gray areas, which call for subjective risk assessment and weighing of competing values. An interpretation of the proportionality principle that is quick to dismiss factual claims by the attacking party of post-warning military advantage may have the unintended consequence of disincentivizing States from giving effective advance warnings (e.g., by reducing the time afforded to evacuate buildings). Such an outcome runs contrary to the imperative of incentivizing States to use warnings and precautions. Construing the parties’ burden of proof relating to target selection in ways that create a binary choice—either establishing a concrete military advantage with significant collateral damage or not being in a position to establish a post-warning military advantage—might lead States to manipulate either the proportionality test, the effective warning requirement, or both. Such an approach might also further encourage militant groups like Hamas to locate “light equipment” headquarters in residential buildings, since they will be protected from attacks either with or without effective warnings. Once a state has shown that it had good reasons to designate a building as a military objective, it should be afforded some benefit of the doubt regarding its assessment of continued military advantages after an effective warning has been given.
Ulterior Reasons for Attacking the Tower
The bombing of the Al-Jalaa Tower also uncovers an important debate regarding multiple motivations—military and non-military—underlying Israeli target selection practices (which seem to apply equally to the other eight towers targeted in Gaza during Operation Guardian of the Walls). It is possible that Israel targeted the Al-Jalaa Tower not only because of its concrete military use by Hamas at the time of the attack or because of its potential future use for such purposes (as claimed by Cox), but rather because of a broader strategic policy of destroying high-rise buildings in Gaza. Various media reports have alleged that Israel adopted such a policy during the recent hostilities, although we have no direct knowledge whether these reports are accurate and reflect an actual policy decision adopted by Israel. Still, if such a policy decision was indeed adopted, we can speculate about two possible sets of motivations for targeting high-rises in Gaza. Both go above and beyond any concrete military necessity assessment.
The first motivation could be to prevent Hamas from conducting operational activities from residential or commercial buildings—a mode of operation that greatly complicates Israel’s ability to effectively fight Hamas. Targeting large buildings in which Hamas holds military assets conveys a message to any Gazan building owner, resident, or commercial entity that allowing Hamas to operate from their midst could entail significant costs for them. It simultaneously sends Hamas a message that operating from such buildings is putting civilians and businesses with whom they come in close contact at real risk. Israel’s long-term strategic goal in this regard might be to render it more difficult for Hamas militants to shield their operations behind civilians and civilian objects.
The second motivation which may underlie Israel’s decision to target the Gaza towers is to discredit Hamas by impressing upon the local population (and perhaps also the international community) that there can be no normal future for Gaza—including sustainable economic development—as long as Hamas chooses the path of military confrontation with Israel. High-rise towers are symbols of economic progress and affluence and part of the modern urban landscape of Gaza. Their destruction might erode public support of Hamas—especially among the local economic elites, who live and operate businesses in such buildings. The loss of public support might, in turn, deter Hamas from embarking on future military adventures against Israel.
Arguably, a policy of deliberate targeting of high-rise towers, if such a policy indeed exists, would constitute an application of Israel’s Dahiya Doctrine to Gaza. This strategic doctrine was developed to justify the massive destruction by the IDF of buildings in a Shiite neighborhood in Beirut during the 2006 Israel-Hezbollah military clashes. The doctrine is viewed by some observers in Israel as a principal reason for Hezbollah’s reluctance to initiate a new round of hostilities with Israel since that time. Indeed, there have already been reports that donor States are conditioning future investment in the development of Gaza on a long-term Israel-Hamas settlement that would decrease the prospect of another round of hostilities, bringing to an end the futile cycle of investment-construction-destruction-investment-reconstruction, etc.
If indeed these considerations played a part in the decision by the IDF to target the Al-Jalaa Tower, two doctrinal questions present themselves: Are these considerations valid justifications for a targeting decision under IHL? And, how do they affect the evaluation of Israel’s other claims relating to the definite military advantage gained from destroying the military assets locates inside the tower?
Definite Military Advantage
Article 52(2) of the First Additional Protocol stipulates that:
military objectives are limited to 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.
The two conditions for target selection enumerated in the article—effective contribution to military action and definite military advantage—are cumulative in nature. Given reports that the Al-Jalaa Tower was actually used by Hamas to effectively contribute to military action (in the field of intelligence and electronic warfare), we will focus below on the second condition only. The ICRC commentary suggests that the definite advantage anticipated from the attack should be “distinct and direct,” and not potential or speculative [para 2024].
The first question before us is whether a failure to establish a concrete operational justification for the attack following the evacuation of the building by Hamas (as claimed by Haque) can be compensated by way of reference to the more strategic considerations. In other words, can one regard the strategic goals of disincentivizing locating military targets inside civilian buildings and enhancing general deterrence through turning away public support from the policies of Hamas as legitimate grounds for targeting the Al-Jalaa Tower?
General Deterrence by Eroding Public Support
Such a discussion is not entirely novel. In fact, one of the most dramatic incidents discussed by an ICTY Prosecution Committee in the famous/infamous 1999 NATO bombing report was the bombing of a Serbian TV tower (RTS Tower) and the consequent killing of between ten and seventeen civilians. NATO’s specific justification for the bombing was that the TV building also served as part of the Serbian Army’s Communication, Command, and Control infrastructure. Still, NATO also indicated that there was another reason for attacking the RTS tower:
Strikes against TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY propaganda machinery which is a vital part of President Milosevic’s control mechanism
The Committee found that, in and of itself, this second justification is problematic, and used the following (under)statement: “If the attack on the RTS was justified to the propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law.” Indeed, any attempt to undermine public support for the Milosević regime could not be regarded as a legitimate military goal, which would justify an attack against a civilian object (see, for example, here).
In the same vein, it appears to us that had the IDF attempted to justify its decision to target high-rise towers in the Gaza Strip in order to demoralize the population of Gaza, or to diminish the popularity of Hamas, this would not have been regarded as a measure offering a distinct and direct—i.e., definite—military advantage. Invoking general deterrence considerations would not only fail to meet the standard set out in Article 52 of the First Additional Protocol; it would also represent dangerous backsliding of IHL to the pre-1949 world of belligerent reprisals against civilians and civilian objects.
Specific Deterrence by Disincentivizing Locating Military Targets in Civilian Buildings
But what about the first potential strategic consideration, according to which the destruction of the high-rises was undertaken in order to generate specific deterrence—to incentivize Hamas to refrain from using civilian buildings as operational headquarters? This line of reasoning suffers from a number of problems as well. First, it is highly questionable whether preventing military use of civilian objects at an indefinite point in the future and in undefined locations could be regarded as sufficiently “distinct and direct” to qualify as providing a definite military advantage. Second, as we have argued before in a somewhat different context, attacks motivated by “strategic goals” designed to change the way Hamas conducts hostilities are too speculative and subjective in nature to offer a definite military advantage.
None of these problems negates, however, the possibility that lawful attacks by the IDF may generate specific deterrence as an incidental outcome. As long as Hamas conducts operations from within a residential building, those parts of the building from which it operates are lawful military targets offering a definite military advantage. As such, they may be attacked subject to the relevant advance warnings, distinction, and proportionality requirements. Such a course of action might not only offer a definite military advantage, but also incidentally convey to Hamas and Gaza residents that the presence of Hamas military assets among civilians does not render them immune from attack. Rather, Hamas’s conduct places civilians and civilian objects in harm’s way.
Multiple Reasons for Attacking Military or Dual Use Objects
Proceeding on the reasonable assumption that none of the motivations underlying an alleged strategic policy to target high-rise towers in Gaza pass the “definite military advantage” test, the next question that presents itself is whether and how these legally inadmissible motivations influence the manner in which we should assess the one legally permissible explanation provided for the targeting the Al-Jalaa Tower—the use by Hamas of some parts of the tower for military purposes. In other words, should the attack be deemed unlawful because some, but not all, of the presumed motivations for undertaking it, did not constitute valid grounds for attack under IHL?
In its NATO bombing report, the Prosecution Committee, which confronted a similar problem of multiple reasons for attacking an alleged dual use object, offered the following conclusion regarding the impermissible motivation invoked by NATO in connection with the attack on the RTS tower:
It appears, however, that NATO’s targeting of the RTS building for propaganda purposes was an incidental (albeit complementary) aim of its primary goal of disabling the Serbian military command and control system and to destroy the nerve system and apparatus that keeps Milosević in power. (para 76)
The primary/incidental test which the Committee applied appears to us to be sensible, although hard to apply in practice. Not only is it difficult to clearly assign goals and intentions to opaque organizations such as militaries—especially when their decisions rely on confidential intelligence sources—ranking such intentions as primary or incidental (or as genuine or mere pretexts) is difficult to assess objectively. Indeed, the only proof that the Prosecution Committee provided for its conclusion regarding the hierarchy of purposes applied by NATO was a declaration issued by a NATO spokesperson.
A Different Two-Part Test
We suggest that a different test should be used for evaluating the legality of specific attacks in instances where it can be established that the attacking State invoked multiple justifications for attacking a military or dual use objective in the attack, or where the attack was motivated, at least partly, by considerations that do not comprise permissible grounds under IHL. Such a test should involve two parts. First, it should include a critical evaluation of the credibility of the IHL-compatible justification: It should be assessed whether this justification truly meets factual and legal conditions of necessity, precaution, distinction, and proportionality under IHL.
Arguably, the existence of impermissible motivations in the background of a targeting decision throws into question the credibility of the legal justification actually provided, putting an extra burden on the attacking State to justify its targeting decision when confronted with credible allegations that it violated IHL. This approach mirrors, to some extent, the critical evaluation of defense claims by the ICTY Trial Chamber in the Gotovina case. There, the issue revolved around the use of artillery shells by local commanders in ways that respected the principle of distinction. Yet, claims that the principle was respected were viewed by the Chamber with suspicion because they were made against the background of illegal orders issued by higher-ranked officers to treat whole towns as one military target [para 1911]. (Although the case was reversed on appeal, the focus of the appeal was different and revolved around the Trial Chamber’s allegedly flawed assumptions when conducting an impact analysis of artillery shells) [para 82].
Second, the test should include an assessment of the significance to the military campaign of targeting the military or dual use objective in question. The more negligible or trivial the definite military advantage obtained by the targeting decisions is, the more likely it is that the military justification formally provided was a mere pretext and that the attack was primarily driven by legally impermissible considerations. In such circumstances, even if there is a right to attack the objective in question, the dominance of legally impermissible considerations may render the attack and the formal explanation provided for it an abuse of that right under international law. This, in turn, reinforces the need to look critically at the credibility of the legal and factual assertions provided by the attacking State in support of the attack.
We are not privy to the information supporting Israel’s decision to attack the Al-Jalaa Tower and therefore are not in a position to evaluate its legality or illegality under IHL. We express in this post, however, some concerns about jumping too quickly to assert that the value of the military target was radically diminished after warning of the impending attack was issued—i.e., that the attack against the tower offered no definite military advantage. This is because an approach that places too heavy of a burden on the attacking military to establish how many military assets remained in a building designated for attack after a warning has been issued might disincentivize effective warnings.
At the same time, we also express concerns about the possibility that Israel’s principal reasons for attacking the Al-Jalaa Tower were broader than just destroying the military assets found there. We note allegations that the attack might have been related to strategic policies of general and specific deterrence—i.e., discrediting Hamas in the eyes of public opinion and affecting its operational strategy. These motivations do not appear to fall within the definition of “definite military advantage” under Article 52 of the First Additional Protocol. While the presence of ulterior motives does not necessarily render the attack illegal under IHL, their existence puts in question the credibility of the factual and legal claims of military necessity, distinction, and proportionality underlying the attack of the tower. Moreover, they raise the possibility that such claims were a mere pretext for advancing the bespoke ulterior motivations. In order to dispel these concerns and react to specific allegations that it had violated IHL, Israel should consider making as much of its factual and legal justification as possible publicly available as soon as possible.
Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Hebrew University of Jerusalem.
Amichai Cohen is a Professor of International Law at the Ono Academic College, Israel, and a Senior Fellow at the Israel Democracy Institute.