Israeli Attacks on Gaza’s Tower Blocks
Once more, the Israeli–Palestinian conflict has erupted into open violence and a miserable display of destruction and human suffering. In what has become a familiar pattern, the fighting on the ground is accompanied by a war of words. Mutual recriminations and accusations of war crimes abound. Hamas has been condemned for its indiscriminate firing of rockets against civilian targets in Israel, while Israel has been widely accused of carrying out disproportionate attacks on Gaza, including by targeting several high-rise tower blocks in Gaza City.
The purpose of this post is to take a closer look at the attacks carried out by the Israel Defence Force (IDF) against the Gazan tower blocks, such as the 14-storey Al-Shorouq tower. The post begins by offering some reflections on whether this is the time to engage in finer legal arguments. Answering in the affirmative, the post considers whether and how high-rise buildings may meet the definition of a military objective, before discussing the rule of proportionality and Israel’s precautionary duties.
Passion and Legal Analysis in Times of War
For lawyers working at the intersection between law and war, the latest round of the Israeli–Palestinian conflict presents a profound dilemma. Much of what unfolds before our eyes raises challenging questions of law and legal principle. Clearly, this is a moment of professional significance. At the same time, is there not something morbid and perverse about engaging in legal disputations when so much more hangs in the balance? Treating the fate of other human beings as an invitation to split hairs?
Professor Naz Modirzadeh has lamented the prevailing trend towards distanced and abstract writing about the law of war during times of actual conflict, calling instead for passionate legal scholarship that is grounded in the lived experience of war and is mindful of the political responsibility for inflicting it upon others. Indeed, passion and emotion should be lacking neither from scholarship nor from legal practice. Yet their presence is no guarantee of good work either. They can inform legal analysis as much as they can cloud it.
This matters. The law of armed conflict was not designed to serve as a comprehensive normative framework for debating the rights and wrongs of war. Certainly, the law responds to important moral imperatives, such as protecting the defenseless and limiting the agony of combatants. But it is blind to the virtue of the causes espoused by the belligerents, just as it is blind to the potential moral innocence of some combatants or the potential culpability of certain civilians.
We should not mistake the law of armed conflict for a moral compass. It is not.
Rather, we should allow the law to do its job, and politics and ethics to do theirs. The fundamental purpose of the law of armed conflict is to impose restraints on warfare by distinguishing between lawful and unlawful acts of war. The role of politics and ethics is to provide inspiration and a vocabulary for debating whether these acts are prudent and righteous—or otherwise. This is not to deny the political and ethical dimension of the law, but to recognize that legality, prudence, and righteousness may coincide or they may well not. Provided we do not lose sight of this fact, there is no reason to feel ashamed about splitting legal hairs during ongoing hostilities. In fact, we should treat it as our professional duty. Getting the law right is a precondition for demanding that the parties comply with their legal obligations and for holding them to account should they fail to do so. Shoddy legal analysis cheapens the currency of the law.
High-Rise Towers and the Principle of Distinction
With this in mind, let us turn to the air strikes carried out by the IDF on the Gazan tower blocks. Numerous commentators have expressed doubts about the legality of these attacks, questioning above all whether they complied with the rule of proportionality. For example, writing on Twitter, Kenneth Roth, the Executive Director of Human Rights Watch, asked whether there was “any pretense that these are proportionate attacks?” This is a good question, but one that benefits from more detailed analysis.
Valid Military Objectives?
There is no doubt that an armed conflict exists between the State of Israel and the Palestinian militant groups engaged in the hostilities. It is not necessary, for present purposes, to dwell on the question of whether this conflict is international or non-international in character. The relevant targeting rules are substantially the same in both cases.
The starting point for assessing the IDF attacks on the Gazan tower blocks is the principle of distinction. Attacks may only be directed against military objectives. Did the buildings constitute military objectives? Under the law of armed conflict, an object qualifies as a military objective if it makes an effective contribution to enemy military action by its nature, location, purpose or use and its partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
The IDF suggested that certain flats or rooms inside the tower blocks were used by Hamas for military purposes. For example, following the destruction of a 12-storey tower housing the offices of Al Jazeera and other international news agencies on 15 May 2021, the IDF explained that the building “contained military assets belonging to the intelligence offices of the Hamas terror organization.” The Associated Press, which also maintained offices in the tower, denied having any indication that Hamas was present or active in the building.
If, in fact, the flats or rooms in question made an effective contribution to Hamas’ military action—for example by providing fighters with a space from which to support military operations—and if the destruction of these spaces offered a definite military advantage to Israel—for instance by disrupting hostile operations or degrading Hamas’ military capability—the criteria of a military objective have, in principle, been met. However, the application of these criteria raises a preliminary question. What exactly is the “object” under discussion here: is it the individual flats and rooms, or is it the tower blocks in their entirety? The answer has significant implications for the application of other rules, in particular the rule of proportionality.
What Is the Military Objective: The Flats or the Entire Tower Block?
The language of the law offers little help in deciding this question, since it merely refers to “objects.” Nevertheless, two relatively straightforward scenarios may be distinguished.
The first involves a number of co-located structures that are functionally and perhaps even physically connected, but structurally distinct. An example would be a compound consisting of three buildings surrounded on all sides by a single wall. The second scenario involves a structure that consists of different component parts, but these are structurally dependent on each other; for example, a bridge consisting of two piers and a deck suspended between them. It is reasonable to treat the structurally distinct objects mentioned in the first scenario as separate objects, but to consider the structurally co-dependent elements described in the second scenario as integral parts of a single object.
Between these two examples lie a myriad of difficult cases. However, as far as high-rise tower blocks are concerned, individual flats or rooms inside them are closer to the second scenario than the first. This is so because the constituent elements of a flat, in particular its floors, walls, and ceiling, are also constituent and structurally integral elements of the entire building.
This conclusion is reinforced by the fact that individual flats in a tower block are not functionally self-sufficient. Instead, they rely on communal spaces and services. Accessing a flat on the seventh floor requires an elevator or a staircase. Making use of that flat most likely involves relying on electricity, water, or other utility supplies running through the building. Assuming for the sake of argument that the flat meets the criteria of a military objective, it is highly likely that at least some of these shared spaces and services will likewise meet those criteria, at least in certain circumstances. Treating the lobby, the elevator shaft, the hallway, the water pipes, and the electricity cables all as distinct objects for these purposes overlooks the fact that they are merely constituent parts of a larger whole, that is the building in its entirety.
Does the Law Require Balancing?
While this logic may sound reasonable, it does have worrying implications. Many may feel uneasy with the idea that qualifying a relatively small component of a bigger building as a military objective—such as a single flat in a block of fifty—could justify treating the entire structure as a valid target. Given the imbalance between the part and the whole, it is tempting to approach this matter from the perspective of the rule of proportionality and argue that there must be some balance between eliminating the military part or function of the building and the harm that its residual civilian element or function is expected to suffer.
The problem with this argument, which is sometimes described as “internal proportionality,” is that it turns a threshold test into a balancing exercise. Recall that under the law an object acquires the status of a military objective provided it makes an effective contribution to enemy action and its destruction, capture, or neutralization offers a definite military advantage. While the requirement of effectiveness and definiteness imply that the contribution to enemy action and the military advantage cannot be totally trivial, they need not be substantial. An object that contributes to enemy military action that is tactically misconceived, strategically futile, and ultimately unsuccessful may still make an effective contribution to that action. Similarly, the military advantage must be definite, meaning it cannot be merely speculative or indeterminate—but it does not have to be of wider significance. Consequently, even a relatively limited effective contribution and definite military advantage may convert a civilian object into a military objective.
Assuming that these two conditions have been met, the law mandates no additional balancing between the military function of an object and any residual civilian function it may retain for the purposes of applying the principle of distinction and qualifying the object as a military objective. A bridge that carries both military and civilian traffic qualifies as a military objective if the definitional elements are met, regardless of the proportion of military to civilian traffic. Conversely, if the bridge were to carry only military traffic—for example in the form of a single military vehicle crossing it once a day—it would still not qualify as a military objective unless the thresholds of effective contribution and definite military advantage are satisfied. In fact, balancing is alien to the concept of military objective. Thus, an object may not be destroyed if its destruction does not offer a definite military advantage, but there is no obligation to resort to capture or neutralization first if destruction does offer a such an advantage.
Accordingly, if balancing between the military function and any residual civilian function of an object is not part of the definition of a military objective, it is difficult to see how balancing between component parts of an object used for military purposes and other component parts not so used is required, provided all these parts constitute integral elements of the same object (for different views, see here, p 37). Returning to the example of the dual-use bridge, the fact that the military traffic consists exclusively of vehicles does not mean that a pedestrian sidewalk on that bridge remains a civilian object.
Nor is any balancing between elements in military use and those in civilian use required by the proportionality rule, as set out in Additional Protocol I. That rule declares that the incidental loss of civilian life, injury to civilians and damage to civilian objects expected from an attack may not be excessive in relation to the concrete and direct military advantage anticipated. The definition renders the rule inapplicable to component parts of the same object. This is so, first, because the rule applies to harm caused to objects other than the one subject to attack and, second, because it deals with incidental harm, not direct attacks.
Other Relevant Rules: Proportionality and Precautions
Does this mean that high-rise buildings may be destroyed in their entirety as soon as one element of the structure qualifies it as a military objective? Not necessarily. Civilians and other protected persons, as well as civilian objects that are not an integral part of the targeted building, remain protected by other rules of the law of armed conflict, above all by the proportionality rule and the duty to take precautions in attack. These rules may preclude the complete destruction of the building.
The proportionality rule imposes a maximum level on the anticipated incidental harm that may be inflicted on civilians and civilian objects, whether they are located inside or outside the military objective under attack. The rule extends to incidental harm caused by reverberating effects—that is injury or death suffered as an indirect result of the destruction of the military objective, provided that such harm was foreseeable and sufficiently proximate to the attack. In the present case, reasonably foreseeable injury or death suffered by the civilian residents of the tower blocks caused, for example, by their exposure to the elements have to be included in calculating the level of collateral damage. The complete destruction of the Gazan tower blocks would have violated the proportionality rule if, based on this calculation, civilians or non-integral civilian objects inside or outside the buildings were expected to suffer incidental harm that was excessive in relation to the concrete and direct military advantage anticipated.
There is no reason why the military advantage anticipated from the attacks on the tower blocks could not, in principle, outweigh the incidental harm, especially if the attacks were expected to cause no or only limited injury to civilians. Whether or not the attacks did in fact comply with the proportionality rule is a different matter. This question cannot be answered without knowledge of the decisions made by those who planned, ordered and executed the attacks. These details are not in the public domain.
Crucially, though, the law also imposes an obligation on the attacking party to take all feasible precautions in the choice of means and methods of attack to avoid, and in any event to minimize, incidental civilian harm. A belligerent therefore cannot simply accept incidental losses below the prohibited threshold, but has to take all feasible steps to avoid or at least minimize these. In other words, even if the civilian harm expected from the attacks was not in fact excessive, Israel was still bound by the precautionary duty to take all feasible steps to avoid or minimize it.
In this respect, it is noteworthy that in the past, the IDF has demonstrated the capability of destroying specific parts of multi-story buildings, rather than the levelling them in their entirety. It is also noteworthy that at least one of the recent attacks involved multiple missiles impacting at base level. If different means or methods of attack would have reduced the extent of incidental harm entailed by the complete destruction of the buildings, these should have been adopted, to the extent feasible. A failure to do so would be a breach of the law.
Dr. Aurel Sari is an Associate Professor of Public International Law at the University of Exeter. He is the Director of the Exeter Centre for International Law, a Fellow of Supreme Headquarters Allied Powers Europe, and a Fellow of the Allied Rapid Reaction Corps.