(Credit: Grispb – stock.adobe.com)
Legal Risks of Explosives in Urban Areas
In the past several years, the use of explosive ordnance in urban areas has gained a high level of notoriety. This largely stems from the current wars in Syria and Yemen, and has often resulted in allegations of war crimes. Since the war in Syria began, the Syrian government’s use of “barrel bombs”—makeshift containers filled with debris and high explosives that are dropped from helicopters or cargo planes—is estimated to have caused thousands of civilian casualties.1 Both state and non-state actors are criticized for their use of explosive munitions in urban environments. Saudi Arabia and the Houthis, an Islamist movement fighting against the government of Yemen, are locked in a fight against each other in Yemen. Both parties have been criticized for their use of explosive ordnance.2 Due to the increased criticism and scrutiny, it is important for commanders to consider the legal risk associated with using explosives in urban environments.
The wars in Syria and Yemen easily fit the legal definition of “armed conflict,” and the decisions to employ aerial-delivered explosives have raised cries of war crimes, which must be analyzed under the law of armed conflict (LOAC).3 An action that triggers outrage and emotion does not automatically imply a violation of the LOAC. No matter what the immediate public and media reaction may be, it is important to undertake a deliberate and thoughtful legal analysis to prevent misinterpretations and inaccurate articulations of the law. Civilian casualties are tragic, and are often accompanied by difficult conversations, criminal accusations, and demands for accountability. With so much scrutiny resulting from these incidents, it is often challenging to take an objective look at whether a tragic event during armed conflict constitutes a crime. The destructive power of explosive munitions in cities can often create unintended casualties, and it is important to understand the legal framework that applies to a particular operation or strike. Only then can commanders assess legal risk.
This article takes a close look at a specific use of explosive ordnance in the limited tactical situation called “counterbattery fire.”4 One useful case study of counterbattery fire that caused civilian casualties with a high degree of public criticism was the Israeli artillery strike on the United Nations (U.N.) School.5 In July 2014, during Operation Protective Edge,6 the U.N. School, located within the Jabalia Palestinian refugee camp in Gaza, was hit.7 Incidents between Israel and Hamas offer good case studies under the LOAC because the public’s criticisms of Israel’s kinetic tactics of the occupied territories offer no legal analysis, and they do little to hide their political biases.
The Case Study
The security problem associated with Gaza is complex. Israel faces daily threats that it considers existential.8 In fact, it is reasonable to say that the conflict is existential considering the expressed aim of Hamas, which is to liberate Palestinian territory—including modern day Israel.9
The 2014 armed conflict between Israel and Hamas in Gaza did not immediately start out with a ground operation. Rather, violent incidents escalated into an armed conflict—which the Israeli government later named Operation Protective Edge.10 On 12 June 2014, in the Alon Shvut area of the West Bank, small arms fire ended the lives of three teenaged Israeli boys.11 These murders rekindled simmering tensions into an armed conflict.12 In the aftermath of the murders, the Israeli Defense Force (IDF) launched a search operation in the West Bank.13
The operation preceding Protective Edge was called Mivtza Shuvu Ahim, or Operation Brother’s Keeper. Its objective was to search for and recover the bodies of the three boys—Yifrach, Shaar, and Fraenkel—and arrest the murderers and conspirators.14 Israeli intelligence services identified two Hamas suspects: Marwan Kawasma and Amer Abu Aysha.15 Israeli Defense Force Units, some of which were already stationed in the West Bank and some that were deployed to supplement the force, arrested almost 400 Palestinians—most with ties to Hamas.16
On 16 June 2014, a Palestinian named Ahmad Savarin was shot and killed by members of the IDF at the Jalazone refugee camp after he threw a brick at them, according to the Israeli Army.17 These operations resulted in clashes between the IDF and Hamas18 in the West Bank.19 By 21 June, the IDF and Hamas escalated their responses, and fighters from Gaza were firing rockets and mortars into Israel.20 On 7 July 2014, Israel launched Operation Protective Edge21 with the objective to stop indirect fire originating from Gaza.22 After ten days of airstrikes, Israel deployed ground troops to Gaza.23
Over the course of approximately fifty days, many individual battles and small actions took place in the population-dense Gaza Strip; but, one event in particular triggered scrutiny. On 30 July 2014, the IDF detected enemy indirect fire coming from the vicinity of the U.N. school in Jabalia (also referred to as Jabaliya or Jabalya).24 The school was serving as a humanitarian shelter for displaced refugees.25 Citing self-defense, the IDF returned fire with artillery at the point of origin of enemy attack, 26 a common tactic when returning artillery fire.27 The Israeli fire resulted in the death of at least nineteen Palestinian civilians, including children sleeping near their parents, who were sheltering at the U.N. school.28
After the incident, there was a great degree of public outcry everywhere from the news media to the floor of the U.N.29 Israel’s position was that it was lawfully defending itself,30 while others claimed that Israel intentionally targeted civilians, or at least recklessly returned fire.31 What has been lost among the tragic pictures of dead children and broken infrastructure is an analytical review of this incident within the appropriate legal regime.
This article applies the framework under the LOAC to analyze the July 2014 Israeli counterfire. We use this incident to analyze the risk and decisions commanders had to make under the LOAC. The purpose of this article is not to accuse IDF commanders of war crimes, but to provide a methodical expression of the legal risk associated with counterbattery fire in urban areas for commanders of ground forces in future operations.32
(Credit: Roman – stock.adobe.com)
The Legal Regime of Operation Protective Edge
The applicability of LOAC to violent events depends on one critical factual condition: the existence of an armed conflict, as opposed to responses to some lesser-form crisis.33 In Tadi ć, the International Criminal Tribunal for the Former Yugoslavia defined an armed conflict as existing whenever there is a “resort to armed force between States or protracted armed violence between governmental authorities and organized groups.”34 This is a factual determination based on the protraction and intensity of the violence, rather than a legal conclusion.35 Whether a particular situation is considered an armed conflict is not black and white, but rather shades of grey; violence in one situation might be more protracted than others, and some situations might be more violently intense than others.36 Because there is no precise calculus commanding the factual existence of an armed conflict, a well-reasoned legal opinion is usually required prior to using tactics that would be permissible under the LOAC but otherwise prohibited under criminal law.37
To determine the lawfulness of military action, the first question to ask is not always whether the parties are in an armed conflict, but whether they are in an armed conflict at the particular moment of the incident in question.38 Using the intensity of violence guidance from the Tadi ć case means that a crisis area could rise above, or fall below, armed conflict thresholds at various times during the crisis.39 This distinction is important because it directs the legal regime of the incident. If there was no armed conflict at the time of a particular incident, then the domestic law of the country, rather than the LOAC, would apply to the analysis of the legality of the use of force.
In the particular moment when Israeli artillery struck Jabalia, the conflict had risen to that of an armed conflict.40 According to an IDF spokesperson, Israeli artillery was responding to Hamas artillery.41 An artillery attack coming from foreign territory will likely exceed the law enforcement capabilities of any state, thus requiring military tactics. Likewise, the indigenous Gaza law enforcement agencies could not have reasonably expected to have responded to Hamas artillery either because 1) Hamas was effectively in control of Gaza by this point, or 2) the Palestinian Authority was complicit or otherwise unable to affect Hamas militias. Accordingly, Israel exercised an operational option usually only seen during an armed conflict and responded to Hamas rocket artillery with its own cannon artillery.42
To determine the lawfulness of military action, the first question to ask is not always whether the parties are in an armed conflict, but whether they are in an armed conflict at the particular moment of the incident in question.
Using the LOAC framework as opposed to a framework under the law of occupation or international human rights law gives Israel more legal maneuver space, although it does not eliminate legal risk entirely. The LOAC is a “permissive” legal regime.43 Parties to an armed conflict are allowed to lethally target each other based on their belligerent acts.44 This is not without limitation. The four Geneva Conventions of 1949 sought to regulate specific matters that may arise during an international armed conflict—that is, a war among nations.45 However, the Geneva Conventions recognized that non-international armed conflicts (NIACs), those where at least one party to the conflict is a non-state actor, also existed, and provided a baseline of minimum protections of both belligerents and non-belligerents during NIACs.46
As the nature of conflicts continued to evolve during the twentieth century, so did the international community’s desire to attempt to fill what some perceived as gaps in the LOAC.47 The next major revision occurred in 1977, with the drafting of two protocols to the Geneva Conventions.48 Specifically, the international community began to recognize gaps in the LOAC during conflicts that do not involve the lawful armed forces of a sovereign nation.49 Like international armed conflict, there is generally no obligation to consider alternative non-lethal effects during a NIAC.50 However, as we will see below, this does not mean the effects can be unrestricted, even when responding in self-defense in bello.
As the nature of conflicts continued to evolve during the twentieth century, so did the international community’s desire to attempt to fill what some perceived as gaps in the LOAC.
Counterbattery Fire Under LOAC
United States Army doctrine describes the principle of necessity as all measures, not otherwise forbidden by international law, which are necessary to defeat the enemy as quickly and efficiently as possible.51 As described in the case study, counterbattery fire typically refers to defensive fires where a ground force commander is returning fire in response to an attack. An attack on enemy belligerents or their capabilities and equipment will generally satisfy the requirement of military necessity.52
Attacks in self-defense are not unlimited53 and are bound by the jus in bello rules of necessity and proportionality. Self-defense is authorized against hostile acts or demonstrations of imminent hostile intent, and the force allowed is that reasonably necessary to counter the attack or threat.54 Once the hostile act is countered, or there is no longer an imminent threat of attack, the rules of self-defense would not apply.
Conflicts that are asymmetric, such as the one between Israel and Hamas, offer additional challenges due to the differences in tactics used by the parties’ artillery formations. In asymmetric warfare,55 the state party will often have an ability to detect the point of origin of an indirect fire attack, usually through a counterbattery radar system, and the non-state party will be aware of this.56 Because of the tactical overmatch of Israeli artillery, the mobility of Hamas artillery systems, and the experience of both parties in this conflict, it is unlikely that a Hamas artillery crew remained in the vicinity after firing on Israel.57
The amount of legal risk in counterbattery fire also depends on whether the return fire is observed or unobserved.58 With an observed fire, the ground commander is able to view the object of attack throughout the strike. Such a fire would carry less legal risk because the ground force commander is able to view whether belligerents have remained in the anticipated impact area of the counterbattery fire.59 Additionally, a commander would be able to see potential civilians or other collateral objects that might be impacted by an attack. Unobserved fires carry more risk because the ground force commander is unable to observe the object of attack.60 Likewise, the commander is unable to observe potential collateral objects and civilians who may be in the vicinity of the target. In an unobserved fires situation, a ground force commander is taking on an increased legal risk of violating the LOAC by firing when the hostile actor—a valid military objective under the LOAC and also a valid target in self-defense—is no longer present, and only civilians remain.
In order for the counterbattery to have an effect on a Hamas artillery crew, it would likely have to respond rapidly. This is under the assumption that there was no reconnaissance capability where the more sophisticated party can see the belligerents or possess precise intelligence on a particular location.
Both offensive and defensive fires must satisfy the customary international law requirements of the LOAC.61 Under the LOAC, armed forces may strike a target so long as certain conditions are met.62 First, the target must be a military objective. “[M]ilitary 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.”63
Military Object and Counterbattery64
Determining the exact nature of a target that has threatened a commander’s forces during asymmetric warfare in urban areas can be challenging.65 Information about a particular target is often based on classified intelligence not readily apparent to third party observers, such as the media.66 In traditional wars, heavy artillery formations were fixed positions and cumbersome.67 Unlimbering an artillery piece could often be awkward and take time, exposing the crews to great danger.68 Modern artillery is towed, self-propelled,69 or carried in the case of mortars.70 Hamas primarily uses highly portable rocket artillery and mortars, because it has to smuggle equipment into the region.71
While potentially difficult to identify in a modern environment where the artillery is mobile and not necessarily carried by uniformed troops, an artillery unit remains a valid military objective. An artillery unit is an object which, by its nature and use, makes an effective contribution to military action, and the destruction of the unit would offer a ground force commander a military advantage.72 However, given the mobile nature of Hamas artillery, it is unlikely the Hamas artillery unit was still in position when Israeli troops struck with counterbattery fire. Additional information would be required to determine whether some other valid target, such as a weapons cache, was in the same area.
Military Objective and Terrain Denial
A piece of ground from which enemy artillery fired, particularly if the enemy uses that piece of ground frequently due to its favorable geography, could itself be a lawful target, if the purpose is to deny the enemy that particular piece of terrain.73 Israel’s spokeswoman stated that Israel fired at a point of origin of suspected enemy mortar fire.74 Accordingly, we can suspect that the purposes behind counterfire were either to suppress or destroy Hamas artillery, or to deny Hamas the terrain.75
Proportionality in Artillery Strikes
Civilian casualties and the destruction of civilian property, although tragic, are still legally acceptable under certain circumstances—so long as they themselves were not the object of the attack.76 However, this does not permit the striking of a lone military objective without regard to the effect on collateral civilians and objects.
The LOAC allows parties to treat civilians and civilian objects as “collateral concerns,” weighed in the balance of proportionality.77 States are required to refrain from attacking an otherwise lawful military objective if the attack is expected to result in the incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the direct military advantage anticipated.78 This means that under the law of proportionality, the military gain represented by an artillery attack on a piece of ground must be expected to exceed civilian loss of life and damage to civilian objects if it is to be lawful.
Article 57 of Additional Protocol I of the Geneva Conventions, which requires forces to take precautionary measures during the planning phases of a military operation to protect civilians,79 reinforces Article 51 of the same Protocol. Even if forces have lawfully decided to attack a target, once information about that target clarifies its true nature, then the “attack shall be canceled” under three circumstances.80 First, if a previously suspected military target is shown to be a civilian object, then the attack must be canceled.81 Second, if it becomes apparent that the suspected military target has special protection82—for example, a suspected command and control center is actually a hospital—then the attack must be canceled.83 Finally, if the “attack may be expected to cause incidental loss of civilian life . . . which would be excessive in relation to the concrete and direct military advantage, then the attack shall be canceled.”84 It should be noted that under the LOAC, a civilian object used for a military purpose, even one with special protections, can lose that protected status and be lawfully targeted.85
Choose the Least Dangerous Objective in Any Type of Operation
Article 57(3) of Additional Protocol I requires forces, whenever possible, to choose the military objective that will have the least danger to civilian lives.86 “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”87 Despite its awkwardness, the paragraph removes some of the traditional autonomy of the ground commander in choosing his own tactics.
It is possible, however, that there is no feasible choice between several military objectives, and, therefore the requirements of Article 57(3) may not apply.88 Israel knows that rockets and mortars have been smuggled into Gaza for decades through tunnels.89 An independent outside observer may conclude that absent good observation, returning artillery fire will typically have the effect of only destroying a piece of earth, and not the highly mobile Hamas crew that fired it. Without other intelligence or insight into the targeting decision, it is difficult for an outside observer to conclude any other effect was intended by the ground force commander who called for the counterbattery fire.
. . . and Take All Reasonable Precautions
Article 57(4) of Additional Protocol I requires parties to an armed conflict to “take all reasonable precautions to avoid losses to civilian lives and damage to civilian objects.”90 Gaza is home to over 1.9 million people packed into 360 square kilometers,91 roughly twice the geographic size of Washington, D.C., which had a population of around 705,000 in 2019.92 If Gaza were a country, it would be the 207th largest country in the world.93 Imagine Washington, D.C., with a population of 800,000. Next consider a 155 millimeter (mm) high explosive artillery shell landing in a population this dense. This population density necessarily increases the expectation of incidental loss of civilian life.
Military weapon capabilities are often kept secret. However, unclassified and public reports place the effects radius of the 155mm high explosive round up to 300 meters—someone standing 300 meters away from a 155mm high explosive could experience some type of effect.94 This article is not analyzing technical effects radius calculus, but merely giving an example of the explosive’s reach. The closer to the impact point of the round, the greater the likelihood of danger.95
There are few places in the vicinity of Jabalia where a 155mm artillery round could land without causing incidental damage to civilians or civilian objects. Given the population density, it would be difficult to strike anywhere in the Gaza Strip without endangering civilians. This would not necessarily violate the LOAC, but it may do so if it fails the proportionality test as discussed earlier.
Objective and Proportionality Revisited
Proportionality is a weighing of the advantage gained by destroying the military objective against the likelihood of civilian casualties.96 As shown above, the target could have been the terrain itself, as opposed to Hamas militants.97 If so, a commander’s military advantage by striking and denying the enemy terrain would need to outweigh the impact the strike had on civilians and civilian objects in the area.
Although warfare may sometimes be asymmetrical, the law certainly is not. Hamas also has an obligation under the LOAC to refrain from endangering civilians. Likewise, Hamas has an obligation to refrain from firing artillery from nearby protected persons and places if it knows that such firing may cause return fire that could endanger civilians. Some scholars have argued that Hamas has militarized protected buildings and locations and deliberately endangered civilians by placing fighters and equipment nearby.98 The U.N. Relief and Works Agency has criticized Hamas in the past for the intentional placement of weapons caches in U.N. schools,99 a tactic familiar to Israeli commanders.
This is all to say that when conducting a proportionality test, the precise military objective matters. If the target is an empty piece of ground, then the value of the military objective could be low. If the target is—and there is a reasonable expectation of effects on—a Hamas artillery crew, then the military advantage in a proportionality analysis could be higher. Finally, considering that the overall objective of Operation Protective Edge is to stop artillery attacks coming from the Gaza Strip, if the target is a cache of rockets and artillery, then the value of the target could be much higher as determined by the ground commander. Depending on the target, such possibilities create a spectrum of military advantage that could either outweigh, or be outweighed by, the risk of civilian casualties, thus creating a spectrum of legal exposure for ground commanders.
Civilian casualties are tragic, and are often accompanied by difficult conversations, criminal accusations, and demands for accountability. With so many knee-jerk reactions of outrage resulting from these incidents, it is often challenging to take an objective look at whether a tragic event during armed conflict constitutes a crime.
This article has sought to provide a deliberate legal analysis to a particular case study during an armed conflict. Such an analysis can cut through public outrage, incomplete reports, and less-than-accurate—or even biased—scrutiny of incidents that cause civilian casualties during armed conflict. By identifying the appropriate legal regime, carefully assembling facts, and applying legal elements to those facts, a clearer perspective of chaotic events during armed conflict can be revealed.
Using the Jabalia case study, we have identified that—at the time of the strike—Israel and Hamas were engaged in an armed conflict, and the LOAC applied as opposed to human rights law. The facts resulting in this determination are important. Israel reported it had been attacked by Hamas artillery, had deployed combat troops in Gaza, and was returning artillery fire into Gaza. As previously discussed, the appropriate legal regime is important because it drives the duties of the parties during an armed event.
The security problem associated with Gaza is extremely complex. Israel faces an existential threat,100 as Hamas’s goal is to liberate Palestinian territory, including modern day Israel.101 To say that Israel has devoted its most brilliant minds to seeking a sustainable solution to its own security would be a gross understatement. The intent of this article is to not to criticize Israel for defending itself by conducting strikes in Gaza; rather, the intent of the article is to critically examine the legal risk associated with the particular strike on Jabalia in light of the LOAC.
Using the framework of LOAC, Israel’s artillery strike on Jabalia prompted a careful look at several elements of the LOAC in particular—namely military necessity and proportionality. First, commanders must determine whether a target is a lawful military objective of which the destruction will provide a military advantage. In order to accurately answer this question, commanders must be able to clearly articulate what the target is. In the case of Jabalia, it is unclear to an outside observer whether the target was Hamas personnel, Hamas equipment, or a piece of terrain that was providing Hamas with an advantage. Without the ability to identify the target, commanders cannot appropriately balance the military advantage sought versus expected civilian casualties during a proportionality test.
Finally, having a deep understanding of the effects and capabilities of particular weapon systems,102 as well as the operational environment in which those weapons will be employed is essential in assessing the legal risk of a particular military operation.103 As discussed in the article, the destructive power of artillery combined with Gaza’s population density increases the legal risk to commanders.
Civilian casualties are tragic, and are often accompanied by difficult conversations, criminal accusations, and demands for accountability. With so many knee-jerk reactions of outrage resulting from these incidents, it is often challenging to take an objective look at whether a tragic event during armed conflict constitutes a crime. The destructive power of explosive ordnance in cities can often create unintended casualties, and it is important to understand the legal framework that applies to a particular operation or strike. Only then can commanders assess legal risk. Using the Israeli case in Jabalia, we have attempted to show how counterbattery fire into population-dense areas that causes civilian casualties creates legal risk. The commander’s ability to clearly articulate what the target is, and the clear military advantage of the target, is critical to counter-balance risk under the LOAC. As the situations in Israel, Syria, Yemen, and others teach, armed conflicts will continue to be fought in populated areas—and those areas will only continue to grow in size and density. TAL
1. Since the beginning of the Syrian Civil War until 2014, Human Rights Watch documented thousands of civilian casualties caused by explosive ordnance dropped in cities. See Syria: Barrage of Barrel Bombs, Hum. Rts. Watch (July 30, 2014, 12:04 AM), https://www.hrw.org/news/2014/07/30/syria-barrage-barrel-bombs. The use of indiscriminate attacks against civilians is so severe in Syria that the United Nations Security Council, in a rare example of solidarity, passed Security Council Resolution 2165 in 2014 “[e]xpressing grave alarm . . . at the continuing indiscriminate attacks in populated areas, including an intensified bombing campaign . . . and the use of barrel bombs . . . and reiterating that some of these violations may amount to war crimes and crimes against humanity.” See S.C. Res. 2165 (July 14, 2014).
2. Press Release, Security Council, U.N. Security Council Press Statement on Yemen, U.N. Press Release SC/13270 (Mar. 28, 2018). In a Security Council Presidential Statement, during the March 2018 meeting of the Security Council, Karel Jan Gustaff van Oosterom stated on behalf of the Council:
The Security Council expresses grave distress at the level of violence in Yemen, including indiscriminate attacks in densely populated areas, and the impact this has had upon civilians, including large numbers of civilian casualties and damage to civilian objects. The Security Council calls on all parties to comply with their obligations under international humanitarian law, including to respect the principle of proportionality and at all times to distinguish between the civilian population and combatants, and between civilian objects and military objectives, and by taking all feasible precautions to avoid, and in any event minimize, harm to civilians and civilian objects and infrastructure, and to end the recruitment and use of children and other violations committed against them in violation of applicable international law, in order to prevent further suffering of civilians.
S.C. Pres. Statement 2018/5 (Mar. 15, 2018).
3. See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
4. Counterbattery in military doctrine refers to the act of returning enemy artillery fire with friendly artillery fire for the purpose of suppressing or destroying the enemy’s artillery capability. These are defensive fires in bello, that is once an armed conflict already exists. It is sometimes also referred to as counterfire. See generally U.S. Dep’t of Army, Tactics, Techniques, & Procedures 3-06.11, Combined Arms Operations in Urban Terrain para. 2-6 (10 June 2011).
5. See Pierre Krähenbühl, U.N. Relief & Works Agency Commissioner-General, UNRWA Strongly Condemns Israeli Shelling of its School in Gaza as a Serious Violation of International Law, U.N. Relief & Works Agency for Palestine Refugees in the Near East (July 30, 2014), https://www.unrwa.org/newsroom/official-statements/unrwa-strongly-condemns-israeli-shelling-its-school-gaza-serious. See also Bill Hutchinson, United Nations Secretary General Rips Israel for Attacking School that Sheltered Gaza Refugees, Killing 20, N.Y. Daily News, (July 31, 2014, 3:46 AM), http://www.nydailynews.com/news/world/israeli-tank-opens-fire-gaza-refugee-camp-article-1.1885121.
6. See Israel Launches Operation Protective Edge in Gaza Strip, NBC News, https://www.nbcnews.com/storyline/middle-east-unrest/israel-launches-operation-protective-edge-gaza-strip-n150281 (July 8, 2014, 1:08 PM) [hereinafter Israel Launches Operation].
7. Ben Hubbard & Jodi Rudoren, Israeli Shells A re Said to Hit a U.N. School, N.Y. Times (July 30, 2014), https://www.nytimes.com/2014/07/31/world/middleeast/israel-gaza.html?_r=0.
8. See generally State of Isr., The 2014 Gaza Conflict: Factual and Legal Aspects 1-2 (2015), https://mfa.gov.il/protectiveedge/documents/2014gazaconflictfullreport.pdf (discussing the ongoing threat Israel faces from Hamas).
9. See The Covenant of the Islamic Resistance Movement art. 34, Aug. 18, 1988, https://avalon.law.yale.edu/20th_century/hamas.asp.
10. See Raphael S. Cohen et al., From Cast Lead to Protective Edge: Lessons from Israel’s Wars in Gaza 78-83 (2017).
11. Karl Vick, Bodies of Missing Israeli Teens Found in West Bank Field, Time (June 30, 2014, 3:12 PM), https://time.com/2941362/bodies-of-missing-israeli-teens-found-in-west-bank-field/. See also Umberto Bacchi, Israeli Teens’ Killers Celebrated ‘We Got Three!’ After Shots Heard on Police Emergency Recording, Int’l Bus. Time, https://www.ibtimes.co.uk/israeli-teens-killers-celebrate-we-got-three-after-shots-heard-police-emergency-recording-1455083 (July 2, 2014, 5:48 PM).
12. Shlomi Eldar, Was Israeli Public Misled on Abductions?, Al-Monitor (July 3, 2014), http://www.al-monitor.com/pulse/originals/2014/07/misleading-kidnapping-almoz-hamas-vengeance-hatred.html#.
13. See State of Isr. , supra note 8, at 25-26.
14. Gantz: Operation Brother’s Keeper Has Come to an End, Jerusalem Post (Sept. 23, 2014, 9:38 AM), https://www.jpost.com/breaking-news/gantz-operation-brothers-keeper-has-come-to-an-end-376127.
15. Id. Kawasma and Aysha were killed by the Israeli Defense Force (IDF) during a shootout. After their deaths, IDG Chief of Staff, Lieutenant General Benny Gantz declared an end to Operation Brother’s Keeper. Id. However, Hussam Kawasme, the mastermind of the kidnappings, was arrested and convicted by a domestic criminal court in Israel. He is currently serving three life sentences. Palestinian Sentenced over Settler Killings, Al Jazeera (Jan. 7, 2015), https://www.aljazeera.com/news/2015/1/7/palestinian-sentenced-over-settler-killings.
16. CBS & Associated Press, Israel IDs 2 Main Suspects in Teens’ Disappearance, CBS News (June 26, 2014, 5:50 PM), https://www.cbsnews.com/news/israel-ids-2-main-suspects-in-teens-disappearance.
17. Dalia Hatuqa, Israeli Forces Kill Palestinian During Raids, Al Jazeera (June 17, 2014), https://www.aljazeera.com/news/middleeast/2014/06/israeli-forces-kill-palestinian-during-raids-201461674729736569.html.
18. Ḥarakat al-Muqāwamah al-Islāmiyyah, or “Islamic Resistance Movement” is better known by its acronym, Hamas. Despite being listed as a terrorist organization, it has also served as the de facto government of Gaza.
19. Yoav Zitun, Infantry Battalion Deployed to Hebron, IDF Calls in Reservists, Ynetnews (June 15, 2014, 1:41 PM), http://www.ynetnews.com/articles/0,7340,L-4530549,00.html.
20. Matan Tzuri & Ilana Curiel, Three Gaza Rockets Hit Open Areas in Sha’ar HaNegev, Ynetnews (June 22, 2014, 1:05 AM), https://www.ynetnews.com/articles/0,7340,L-4532884,00.html.
21. Nothing in this article should be interpreted to mean that sovereign nations do not have the right to self-defense ad bellum under Article 51 of the Charter of the United Nations, or in bello once the conflict has begun. See U.N. Charter art. 51. Whether the three murders constitute an armed attack authorizing Israel to respond with military force is outside the scope of this article.
22. See State of Isr., supra note 8, at 1-2, 32-34. There is some discussion on when Operation Protective Edge officially started. On the evening of 7 July 2014, the Prime Minister of Israel announced a broad operation, termed “Operation Protective Edge,” claiming the action was necessary to protect Israel’s civilian population from increasing rocket and mortar attacks. Id. However, other articles and publications hold 8 July 2014 as the official start of Operation Protective Edge. See Cohen et al., supra note 10, at 81-82.
23. See State of Isr. , supra note 8, at 1-2. The Government of Israel’s records reflect that it ordered the IDF to commence ground operations on 17 July 2014, which is ten days after the date the government recognizes as the initiation of concentrated aerial operations against Hamas—7 July 2014.
24. Israeli Fire Kills Nineteen in Gaza UN School, Al Jazeera (July 31, 2014), https://www.aljazeera.com/news/2014/7/31/israeli-fire-kills-nineteen-in-gaza-un-school.
25. Tovah Lazaroff, IDF Accuses Palestinians of Firing from Vicinity of UNRWA School, Says Probing Deaths, Jerusalem Post (July 30, 2014, 2:09 PM), https://www.jpost.com/operation-protective-edge/rockets-found-at-unrwa-school-for-third-time-369358.
26. See US Resupplying Israel with Ammunition Even After Condemning Shelling of Gaza School, RT (July 30, 2014, 8:23 PM), https://www.rt.com/usa/176820-pentagon-idf-unrwa-ammunition/. See also William Saletan, The Horrific Results of Israel’s Good Intentions: How a Civilized Nation Can Descend into War Crimes, Slate (Aug. 4, 2014, 5:00 PM), https://slate.com/news-and-politics/2014/08/gaza-shelter-massacre-how-israel-could-have-killed-21-civilians-at-a-u-n-school.html.
27. See generally U.S. Dep’t of Army, Field Manual 3-09, Fire Support and Field Artillery Operations paras. 2-9, 2-38, 3-65 (30 Apr. 2020) (discussing the use of radar and counterbattery fires as part of artillery operations).
28. See Israeli Fire Kills Nineteen in Gaza UN School, supra note 24 (discussing nineteen casualties). See also Ben Hubbard & Jodi Rudoren, Questions of Weapons and Warnings in Past Barrage on a Gaza Shelter, N.Y. Times (Aug. 3, 2014), https://www.nytimes.com/2014/08/04/world/middleeast/international-scrutiny-after-israeli-barrage-strike-in-jabaliya-where-united-nations-school-shelters-palestinians-in-gaza.html (discussing twenty-one casualties).
29. See Hubbard & Rudoren, supra note 7 (discussing condemnation from multiple sources).
30. See Saletan, supra note 26 (citing an IDF spokeswoman saying that the Israeli troops fired as a result of militants firing on Israeli Soldiers).
31. See id. (discussing the risks inherent in firing artillery at Jabalia and references that some view the attack as a deliberate strike on civilian targets).
32. A secondary purpose of this article is to walk the human rights community through a law of armed conflict (LOAC) analysis to provide a roadmap for analyzing such events under the appropriate legal regime. The human rights community has a great deal of expertise and resources that, if channeled appropriately with the right evidence and legal analysis, could greatly contribute to achieving accountability for crimes of atrocity. On 18 March 2015, the IDF Military Advocate General (MAG) announced that it ordered criminal investigations into the strike on the UNRWA School in Jabalia on 30 July 2014 after a Fact-Finding Assessment Mechanism presented evidence indicating existence of a reasonable suspicion that the strike was not carried out in accordance with the rules and procedures applicable to IDF forces. See Press Release, Israel Defense Forces Military Advocate General, Decisions of the IDF Military Advocate General Regarding Exceptional Incidents During Operation ‘Protective Edge’—Update No. 3 (Mar. 18, 2015), https://www.idf.il/media/40280/operation-protective-edge-mag-corps-press-release-update-3-march-2015.pdf. The last press release by the MAG Corps was published on 15 August 2018 and did not mention results of the criminal investigation into the Jabalia strike. See Press Release, Israel Defense Forces Military Advocate General, Decisions of the IDF Military Advocate General regarding Exceptional Incidents That Allegedly Occurred During Operation ‘Protective Edge’—Update No. 6 (Aug. 15, 2018), https://www.idf.il/media/40288/examination_and_investigation_of_exceptional_incidents_from_operation_protective_edge.pdf.
33. See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
35. See id. ¶¶ 96-99. See also Int’l Comm. of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? 3 (Mar. 2008), https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf (discussing factors which distinguish an armed conflict from other less serious forms of violence) See also Prosecutor v. Tadić, Case No. IT-94-1-I, Opinion and Judgment, ¶ 562 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).
37. The determination of whether a state has been attacked ad bellum is made by the state that has been attacked. Likewise, it is a basic tenet of law that only states and other sovereign bodies may authoritatively interpret the law. However, there is danger in determining that an internal armed crisis has risen to the level of armed conflict if the sole reason for that determination is that the crisis has exceeded the capability of police agencies and judicial infrastructure. Exceeding the capability of law enforcement and the judiciary does not necessarily make a crisis an armed conflict in fact, but it could present an indicator of such.
38. Prosecutor v. Tadić, Case No. IT-94-1-I, Opinion and Judgment, ¶¶ 561-562 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997) (in order for an internal crisis to have ended and an armed conflict to have begun, the level of violence must be protracted and must rise to a certain level of intensity). However, this description is highly ambiguous, and necessarily cannot provide objective criteria which would give guidance as to when precisely an armed conflict has begun. In that regard, this determination is more art than science.
39. Gloria Gaggioli, The Use of Force in Armed Conflicts: The Interplay Between the Conduct of Hostilities and the Law Enforcement Paradigms 4 (2012), https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4171.pdf.
40. See State of Isr. , supra note 8, at 28-29 (where Israel states that the military actions during the 2014 Gaza Conflict were part of an ongoing armed conflict).
41. See Hubbard & Rudoren, supra note 7.
42. A response under the more limited legal regime under domestic law would have meant leveraging law enforcement assets to arrest and criminally try the Hamas members responsible for the rocket attacks. See State of Isr., supra note 8. Under LOAC principles, the Israeli government itself reviewed the IDF conduct during Operation Protective Edge. Id.
43. U.S. Dep’t of Def., DoD Law of War Manual sec. 18.104.22.168 (12 June 2015) (C2, 13 Dec. 2016) [hereinafter Law of War Manual].
44. Geneva Convention (IV) Respecting the Laws and Customs of War on Land, Annex: Regulations Concerning the Laws and Customs of War on Land arts. 22–28, Oct. 18, 1907, 36 Stat. 2277 [hereinafter Hague Regulations]. The Hague Regulations do not affirmatively authorize belligerent parties to permissively target one another based on their status, but rather their violent actions. This status-based concept is deduced from those means that are specifically prohibited by Hague Regulations during armed conflict. It necessarily follows that those means that are not prohibited are authorized.
45. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. Articles 2 and 3 are common to all four Geneva Conventions pertaining to humanitarian law of 1949. They are informally known as Common Articles 2 and 3. Id.
46. Id. art. 3.
47. See Int’l Comm. of the Red Cross, supra note 35 (discussion of non-international armed conflicts and ways to define when hostilities have risen to a level of a non-international armed conflict). See also Law of War Manual, supra note 43, sec. 22.214.171.124. (discussing a range of views on what constitutes an “armed conflict not of an international character”). One of the aims of the LOAC is to protect civilians on battlefields, although the law does not provide a great deal of guidance. Some advocates have voiced support for using more of a law enforcement paradigm during armed conflict by looking to international human rights law for guidance on interpreting LOAC.
48. While the United States is a state signatory, it has never ratified the additional protocols; and, so, is not a state party to them. Pakistan and Iran are the only two other countries who have not ratified the protocols. Nevertheless, 174 other countries are parties. See Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I].
49. See Int’l Comm. of the Red Cross, supra note 35. See also Law of War Manual, supra note 43, sec. 126.96.36.199.
50. See Law of War Manual, supra note 43, secs. 188.8.131.52-184.108.40.206 (discussing similarity in principles of law of war between international and non-international armed conflicts).
51. See U.S. Dep’t of Army, Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare para. 1-23 (7 Aug. 2019) [hereinafter FM 6-27].
52. Id. para. 1-27.
53. Yoram Dinstein, War, Aggression and Self-Defence 234-41 (5th ed. 2011). See generally Nils Melzer, International Humanitarian Law: A Comprehensive Introduction 289 (2019). See also Ian Henderson & Bryan Cavanagh, Military Members Claiming Self-Defence During Armed Conflict: Often Misguided and Unhelpful, in Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack (Jadranka Petrovic ed., 2017).
54. See generally FM 6-27, supra note 51 (discussion of jus ad bellum international law providing a legal basis for the use of force versus jus in bello international law that applies for the use of force during an armed conflict). Id. para. 2-3 (circumstances of unit self-defense). See also Dinstein, supra note 53, at 234–41 (discussion of necessity and proportionality as they apply to self-defense).
55. Asymmetric warfare is a common term used to describe an armed conflict where one party, such as Israel, possesses significant tactical overmatch of the other, such as Hamas. In order to achieve a level of tactical parity, the weaker party will often resort to non-traditional tactics such as suicide bombings, targeted assassinations, and—in Hamas’s case—indiscriminate firing of rockets and mortars into Israel.
56. See generally HAMAS Rockets , Global Sec., http://www.globalsecurity.org/military/world/para/hamas-qassam.htm (last visited Jan. 21, 2021) (unclassified background information on Hamas’s rocket capability).
57. See Padraig O’Malley, The Two-State Delusion: Israel and Palestine—A Tale of Two Narratives 143 (2016) (discussing how Hamas is highly mobile, adept at asymmetric warfare and difficult to pin down). See also Sreenivasan Jain, NDTV Exclusive: How Hamas Assembles and Fires Rockets, NDTV, https://www.ndtv.com/world-news/ndtv-exclusive-how-hamas-assembles-and-fires-rockets-641680 (Aug. 14, 2014, 9:03 PM) (discussing how a rocket launcher was buried and left by Hamas and fired later the following day).
58. See generally Yves J. Bellanger, U.S. Army Armored Division 1943–1945, at 321–32 (2010). See also Kristina Wong, US Commander: Lack of Intelligence Assets Slowing Down ISIS War, Hill (June 7, 2016, 10:21 AM), https://thehill.com/policy/defense/282457-isis-air-war-commander-short-on-intelligence-assets (discussing the use of intelligence, surveillance, and reconnaissance to minimize the risk of civilian casualties and develop targets).
59. Geoffrey S. Corn & Lieutenant Colonel Gary P. Corn, The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens, 47 Tex. Int’l L.J. 337, 369 (2012) (discussing observed and unobserved indirect fires and legal risk).
61. See FM 6-27, supra note 51, para. 1-46.
62. Id. paras. 1-1, 1-4, 1-19. These sections generally discuss when force can be used and the restrictions on that force under LOAC.
63. Additional Protocol 1, supra note 48, art. 52(2). Although Israel is not a party to Additional Protocol I, the elements of a lawful target as articulated by the Protocol is one of the strongest statements of customary international law. See generally Nils Melzer, Int’l Comm. of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009).
64. Counterbattery in military doctrine refers to the act of returning enemy artillery fire with friendly artillery fire for the purpose of suppressing or destroying the enemy’s artillery capability. It is sometimes also referred to as “counterfire.” See generally Joint Chiefs of Staff, Joint Pub. 3-09, Joint Fire Support (10 Apr. 2019) [hereinafter JP 3-09].
65. An insurgency exists when an organized group or movement uses subversion and violence to force political change to the lawful government where the group operates. DoD Dictionary of Military and Associated Terms 106 (Jan. 2021).
66. See State of Isr., supra note 8, at 143-45 (discussing the use of intelligence in targeting and showing an example of an IDF “target card” containing redacted classified information). See also id. at 186 ¶ 333 (discussing how third parties are not privy to information a commander possessed when deciding to launch an attack because of the classification of the information).
67. Boyd L. Dastrup, King of Battle: A Branch History of the U.S. Army’s Field Artillery 3 (1992).
68. Karl Baron Smola, The Austrian Cavalry Gun in Comparison to the Horse Artillery of Other States, Napoleon Series (Digby G. Smith trans., June 2010), https://www.napoleon-series.org/military-info/organization/Austria/Artillery/c_Smola.html (discussing the dangers a crew faces during unlimbering).
69. See Dastrup , supra note 67, at 188-90 (discussing self-propelled artillery and towed artillery).
70. Id. at 2-3 (discussing the historical use of mortars as a siege weapon in the 15th century).
71. Jodi Rudoren, From Gaza, an Array of Makeshift Rockets Packs a Counterpunch, N.Y. Times (July 17, 2014), https://www.nytimes.com/2014/07/18/world/middleeast/from-gaza-an-array-of-makeshift-rockets-packs-a-counterpunch.html.
72. See Law of War Manual, supra note 43, sec. 220.127.116.11; Israel Launches Operation Protective Edge, supra note 6. Both articles discuss how artillery is generally considered to fall under “combatant” as defined by the Hague Regulations. See also Law of War Manual, supra note 43, sec. 5.1.1 (discussing artillery as a means and method of warfare).
73. This is known by various doctrinal terms including terrain denial or harassment and interdiction fires. Interdiction is an action that is “conducted to divert, disrupt, delay, or destroy the enemy’s military surface capabilities before they can be brought to bear effectively against friendly forces or to otherwise achieve objectives” and can include the targeting of favorable ground. JP 3-09, supra note 64, at II-2.
74. See Lazaroff, supra note 25.
75. See Ben Hubbard & Jodi Rudoren, Blasts Kill 16 Seeking Haven at Gaza School , N.Y. Times (July 24, 2014), https://www.nytimes.com/2014/07/25/world/middleeast/despite-talk-of-a-cease-fire-no-lull-in-gaza-fighting.html.
76. See Jean-Marie Henckaerts & Louise Doswald-Beck, Rule 1. The Principle of Distinction Between Civilians and Combatants, Int’l Comm. of the Red Cross, in I Customary International Humanitarian Law (2005), http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1.
77. See Additional Protocol I, supra note 48, art. 51(5)(b).
78. See Law of War Manual, supra note 43, sec. 5.5.2 (“Combatants must refrain from attacks in which the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, would be excessive in relation to the concrete and direct military advantage expected to be gained.”). See also id. para. 5.12 (discussing proportionality in conducting attacks).
79. See Additional Protocol I, supra note 48, art. 57.
80. Id. art. 57(2)(b).
83. See Law of War Manual, supra note 43, sec. 5.6.2 (discussing objects protected from attacks including hospitals and medical facilities).
84. See Additional Protocol I, supra note 48, art. 57(2)(b).
85. It is customary international law that civilian objects can lose protected status for such time as they are military objectives. See Jean-Marie Henckaerts & Louise Doswald-Beck, Rule 10. Civilian Objects’ Loss of Protection from Attack, Int’l Comm. of the Red Cross, in I Customary International Humanitarian Law (2005), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule10.
86. See Additional Protocol I, supra note 48, art. 57(3). See also Law of War Manual, supra note 43, sec. 5.11.5 (discussing the U.S. position that this rule is not a requirement of customary international law).
87. See Additional Protocol I, supra note 48, art. 57(3).
88. Ian Henderson, The Contemporary Law of Targeting: Military Objective, Proportionality and Precautions in Attack Under Additional Protocol I 189-90 (2009) (discussing choosing between targets and the occasional applicability of Article 57(3)).
89. See State of Isr. , supra note 8, at xi, 40-49 (discussing Hamas smuggling rockets through tunnels).
90. This can be achieved strategically through long-term solutions, but ordinarily occurs tactically at the time of attack. Many armies have a standing doctrine that states what type of ordinance will be used for the suppression of enemy artillery, and a battery will often be designated as the counterfire battery. See Tzuri & Curiel, supra note 20. In the case of the Jabalia strike, reports indicate Israel fired 155mm artillery. See Peter Beaumont, Israel Responsible for Gaza Strikes on UN Schools and Shelters, Inquiry Finds, Guardian (Apr. 27, 2015, 1:19 PM), https://www.theguardian.com/world/2015/apr/27/israel-responsible-gaza-strikes-un-schools-ban-ki-moon. See also Hum. Rts. Council, Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Counsel Resolution S-21/1 115, ¶ 434, U.N. Doc A/HRC/29/CRP.4 (June 24, 2015).
91. Middle East: Gaza Strip, CIA, https://www.cia.gov/the-world-factbook/countries/gaza-strip (Feb. 8, 2021) [hereinafter Gaza Strip ].
92. Id. (Comparing the size of the Gaza Strip with Washington, D.C., one can see that the Gaza Strip is slightly more than twice the size of Washington, D.C.). See also QuickFacts District of Columbia, U.S. Census Bureau, https://www.census.gov/quickfacts/DC (last visited Jan. 21, 2021).
93. See Gaza Strip, supra note 91 (Gaza is 207th in the world in terms of area, but 152d in terms of population.).
94. Jane’s Ammunition Handbook 329 (Terry J. Gander & Ian V. Hogg eds., Jane’s Information Group 2d ed. 1994) (estimates place lethal effect around 150 meters which means that if an individual is within 150 meters of the impact, there is a high chance of death or serious bodily injury). See also Julian Borger, Gaza Civilian Death Toll Raises Questions About Israeli Military Training, Guardian (July 31, 2014, 2:56 PM), https://www.theguardian.com/world/2014/jul/31/gaza-civilian-death-toll-military-training-experts.
95. According to reports, an Israeli 155mm round struck part of the school. See Aftermath of a Shelling—Jabalia, U.N. Relief & Works Agency for Palestinian Refugees in the Near E. (Aug. 1, 2014), https://www.unrwa.org/newsroom/photos/aftermath-shelling-%E2%80%93-jabalia.
96. See Law of War Manual, supra note 43, sec. 5.12 (discussing proportionality in which the military advantaged is compared to the expected loss of life or injury to civilians). Attacks are disproportional if the impact on civilians would be excessive in relations to the military advantaged gained. Id.
97. The mobility of an indirect fire crew is critical to survival for belligerents in the forces of the less sophisticated party during asymmetric warfare. With rocket artillery, a common tactic by insurgents in this author’s experience is to simply place the rocket on a rail, and set it on a timer. By the time the rocket fires, insurgents have left and nothing remains in place except an empty rail. This assertion is based on the author’s professional experience as the Regimental Judge Advocate of the 2d Cavalry Regiment from 2011 to 2014.
98. See Kristin Hausler & Robert McCorquodale, Guest Post: Attacks on Schools—What About International Law?, OpinioJuris (Aug. 13, 2014), http://opiniojuris.org/2014/08/13/guest-post-attacks-schools-international-law/.
99. See UNRWA Condemns Placement of Rockets, for a Second Time, in One of Its Schools, U.N. Relief & Works Agency for Palestinian Refugees in the Near East (July 22, 2014), https://www.unrwa.org/newsroom/press-releases/unrwa-condemns-placement-rockets-second-time-one-its-schools.
100. See State of Isr., supra note 8.
101. See The Covenant of the Islamic Resistance Movement, supra note 9.
102. See Law of War Manual, supra note 43, sec. 5.12.4 (discussing what would constitute an excessive use of force under the proportionality rule). See also id. sec. 6.7.2 (discussing whether a weapon is indiscriminate and violates the principles of distinction and proportionality by examining the use of the weapon); Fionnuala Ní Aoláin, The Weapons Piece of the Proportionality Analysis in Gaza, Just Sec. (Aug. 15, 2014), https://www.justsecurity.org/14045/weapons-piece-proportionality-analysis-gaza/.