By Eli Bar-On
DEPUTY MILITARY ADVOCATE GENERAL, IDF (2012-2015)
May 2021 will be remembered as a particularly hot month in Israel, but not because of the boiling weather. On May 10th, after several days of clashes between Palestinians and Israelis in East Jerusalem, Hamas, the terror organization that has been ruling the Gaza Strip for almost 15 years, returned to the number one war crime in its playbook: launching rockets towards cities and villages across Israel.
By now, well above 3,500 rockets have been fired from Gaza into Israel. Most were intercepted by the Israeli Iron Dome air defense system. Yet, some managed to penetrate those defenses and kill several Israeli civilians. In response to these attacks, Israel launched its own military campaign - Operation Guardian of the Walls - and has so far targeted over 800 military targets belonging to Hamas and other terror groups operating inside Gaza.
One of the Israeli strikes that gained the greatest global attention - and criticism - was the attack on the Al-Jalaa building in Gaza. Apparently, what made this strike exceptional was not the fact that this was a fairly tall building, with twelve floors, nor the number of casualties in the strike (there were none). What was special about this building was the fact that it housed the offices of foreign news agencies, including the Associated Press and Al Jazeera. As detailed by the testimonies of several employees in these agencies (here and here, for example), the IDF notified the residents of the building that they should evacuate it within one hour because the IDF intended to target it. Once the building was evacuated, the IDF struck and destroyed it.
Assuming the IDF knew that the building was home to news agencies among other civilian offices and apartments, was it lawful to carry out this strike? Let us examine the legal basis that needs to be substantiated in order to claim that the attack was lawful.
The first thing we need to look at is whether the building was a military objective. The principle of distinction, which is the touchstone of the Laws of Armed Conflict (LOAC), requires all fighting parties to distinguish between military objectives and civilian objects, and to direct their strikes only against military objectives. A military objective is an object which, by its nature, location, purpose or use, makes an effective contribution to military action, and whose partial or total destruction, capture or neutralization, in the circumstances at play at the time, offers a definite military advantage.
How then, does the IDF explain the attack against the building, which appears to be civilian in nature? In a statement made by the IDF, it was claimed that the building contained military assets belonging to the intelligence offices of Hamas. The IDF also claimed that the building housed a Hamas research and development unit operating technological equipment against Israel, which constituted "a unique asset to the Hamas terrorist organization." If that is the case, those assets can indeed qualify as military objectives. But does this mean that the whole building qualifies as a military objective? The LOAC stipulate that clearly separated and distinct military objectives should not be attacked as a single military objective.
Were the specific offices, from which Hamas was operating in the building, "clearly separated and distinct military objectives" that should have been attacked surgically, without attacking the building as a whole? Did the IDF, which has precision-guided munitions and often uses them for pinpoint strikes of specific elements of a structure, have a legal obligation to direct the attack only against the Hamas offices in the building? It seems like this is a very good question to which there is no clear answer.
But in the concrete circumstances of the case, the Israeli military spokesman said: "There was no way of taking down only the Hamas facilities that were in the building. They occupied several floors in the building and it was impossible only to take down those floors. It was deemed necessary to take down the whole building." If that was indeed the case, it seems reasonable enough to claim that the structure was a single unit that qualified as a military objective in its entirety, since through its use it made an effective contribution to Hamas's military action, and its destruction offered a definite military advantage to the IDF. In this respect, the classification of the whole building as a military objective remains correct regardless of its civilian nature and uses.
Now, we should take one step forward with our legal analysis. The qualification of an object as a military target is not enough. The LOAC require the targeting party to take all sorts of precautions to spare civilians and civilian objects. One of the most important precautions is that effective advance warning shall be given of attacks that may affect the civilian population - unless circumstances do not permit.
As was learned from the testimonies of the residents of the building, the IDF did indeed give them time to evacuate and only struck the building after its owner assured the IDF it had been fully evacuated. The fact that there were no civilian casualties or injuries as a consequence of the attack of such a large structure is also proof of the highly effective advance warning that was given. Further proof of that fact could be found in the many photographers who were anticipating the strike and took videos documenting it from different angles.
Finally, the fact that the building was a military objective and that precautions have been taken during the attack is not enough. The LOAC also require that an attack that could be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, will not be excessive in relation to the concrete and direct military advantage anticipated.
This means that the collateral damage to civilians and civilian property from the attack has to be proportionate to the military gain. In this case, there were no civilian casualties or injuries. If we consider the whole structure to be one military objective, we can also exclude the civilian offices in the building from the proportionality analysis. The civilian property that remains to be considered in this analysis is thus the objects inside the civilian offices and apartments in the building and any expected collateral damage to objects in the vicinity of the building. Presumably, some part of the residents managed to extract from the building at least some of the most precious and valuable equipment that they could within the short time they had to evacuate.
Obviously, the damage to the property that remained in the building is much less significant than any damage to human lives that could have been occurred.
This analysis must be carried out by the IDF commander who decided to approve the strike. Assuming such an assessment has been made, in accordance with the IDF procedures, and assuming that the civilian objects' damage assessment was not excessive in proportion to the direct military gain from the attack, this strike should be considered proportional and lawful.
For understandable reasons, the public outcry after the attack was immense. The strike was criticized by a host of groups around the world. There is no reason to doubt the AP’s statement that it had no indication of Hamas being in, or active in, the building.
At the same time, years of experience with Hamas's modus operandi have taught the IDF that Hamas will never shy away from using civilians as human shields, with the knowledge and consent of these civilians, or with the lack thereof.
Journalists are not immune from this tactic. If the IDF's claim regarding Hamas's use of the building for military purposes is correct, this should come as no surprise.
Hamas did not coincidentally locate its offices in this building, having known full well that it houses the offices of big foreign media outlets. It used their presence cynically, hoping to deter the IDF from striking the building in order to avoid the PR damage that inevitably follows such a strike.
AP and Al Jazeera have called for the IDF to publish the evidence that Hamas was using the building. Prime Minister Netanyahu claimed that such evidence will be passed to the US through intelligence channels. Obviously, making a public case to present the evidence of the attack is almost an insurmountable challenge, because these operations are almost always based on classified information. The publication of such information can endanger the lives of human sources or risk the exposure of invaluable methods of collecting intelligence.
Freedom of the press should always be respected and in times of war even more so. This is why military strikes that bear collateral damage to journalists and press assets should be carried out only after very careful consideration. At the same time, the reality dictated by terror organizations such as Hamas in which journalists sometimes serve as human shields without their knowledge should not deter law-abiding militaries such as the IDF to strike these terror groups even at the cost of harming assets of press agencies, as was done in this case.
Claiming otherwise will only incentivize the terror organizations to keep using these war crimes tactics. This is yet another example of why the civilized world must fight and condemn groups such as Hamas in every possible way.
Eli Bar-On concluded his career in the Israel Defense Forces holding the position of instructor at the IDF National Defense College (the INDC). Prior to that position, Bar-on served as the Deputy Military Advocate General of the IDF (2012 to 2015), where he was in command of approximately 1,000 lawyers and legal experts, including prior to, during and following Operation Pillar of Defense & Operation Protective Edge. He also served as the Chief Legal Advisor for the IDF in the West Bank from 2009 to 2012.