Have some IDF attacks gone too far in terrorist-civilian casualty ratios?

What is the limit to allowable collateral damages even when Hamas uses human shields?

By YONAH JEREMY BOB DECEMBER 30, 2024 18:16 Updated: DECEMBER 30, 2024 18:30

IDF soldiers operate in the Gaza Strip, December 25, 2024. (photo credit: IDF SPOKESPERSON'S UNIT)

The discussion of the legality of IDF actions during the current war are always clouded by the politics.

There are Israel-haters and antisemites who do not care about the facts and simply want to label Israel as committing genocide in order to try to tear down the country and to try to prevent it from defending itself.

There are naïve well-meaning persons who have no idea of the scope of systematic human shields Hamas has used from hospitals, to schools, to UN facilities, to mosques.

And yet there is still a missing conversation in Israel about the morality and legality of aspects of IDF targeting during this war.

An April 972 Magazine report and a report by the New York Times last week brought these issues into clear contrast.

IDF soldiers in northern Gaza Strip conducting operation in the area of the Indonesian Hospital, where a Hamas launch site was located. (credit: IDF SPOKESMAN’S UNIT)

Put bluntly, even if Hamas systematically uses human shields and even if the IDF needed to kill far more Gazans in this war than in prior conflicts in order to defeat Hamas militarily after the terror group’s October 7 slaughter of around 1,200 Israelis and its taking of 250 hostages: at what point does the ratio of terrorists to civilians in a particular attack violate even the most extreme interpretation of proportionality?

Justifiable attacks

Can killing 100 civilians be justified to kill even the most senior single terrorist? Can killing 20 civilians be justified to kill mid-level terrorists?

The Jerusalem Post has tried to engage various IDF officials on this subject over the course of the war, and has not gotten 100% clear answers, but has received some substantive explanations beyond the generic defenses that the IDF tries to get civilians to evacuate battle areas with millions of warning flyers, phone calls, text messages and that Hamas is using human shields.

The problem is that the generic defenses still do not really ever make a 100 to 1 ratio legal and ethical, nor do they make a 20 to 1 ratio legal and ethical for mid-ranking terrorists.

A prior Israeli judicial commission about 15 years ago found that an IDF assassination of Hamas military leader Saleh Shehada in 2002, which killed 13 civilians, including his wife and minor daughter, was not a war crime. But the commission found the attack to be borderline.    

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The NYT report said that the IDF assassination of senior Hamas terrorist, Jabalya Central Battalion Commander Ibrahim Biari in late October 2023, had a ratio of an entirely different order of magnitude - allowing a 100 to 1 ratio.

972 Magazine said that the December 2, 2023 bombing of Hamas Shejaia Battalion commander Wisam Farhat allowed a 100 to 1 ratio.

Some other airstrikes of senior Hamas officials during the war and some of the rescues of Israeli hostages allegedly led to the killing of around or over 100 civilians. In at least one of these cases, the killings were not anticipated as they occurred only after an escape vehicle got stuck and was under attack by Hamas. But the IDF has never previously fully cleared up what it considered in terms of a red line for killing civilians mid-rescue should something go wrong.

The Post has now learned that the IDF's position is that there are no set ratios and that it views the NYT report message that these ratios are essentially part of a factory style free-for-all blow everyone up strategy as inaccurate.

Rather, the Post understands that the IDF's view is that the NYT report confused various minimal parameters which may exist for setting at what level different senior ranked IDF officials are mandated to sign off on certain strikes with being the end to the process of approving or not approving a strike.

For example, the IDF revealed in April that only a IDF brigadier general level officer had the authority to approve a strike on a Hamas fighter who was taking actions near a humanitarian food delivery caravan.

When an IDF colonel approved such a strike in error, leading to killing seven aid workers, he was reprimanded not only for mistaking the aid workers for Hamas, but also for violating the limits on his airstrike approval authority.

This means, the Post has learned, that even after certain ratios of terrorists to civilians in a potential attack area might meet a minimal standard for a certain commander to sign off, that commander and his legal team must still separately determine that the attack is proportionate under the laws of war.

An unanswered question is whether the IDF really lived up to these standards as much at the start of the war in October-November 2023. The Post has learned that the IDF would acknowledge that it had less time and fewer resources available to evaluate each target during that time period than in other time periods.

However, the IDF would still contend that it properly checked its targets for civilian casualties, including with multiple tools. 

This last point leads into the various reports which have also raised questions about the IDF’s target bank and artificial warfare methods for incriminating some Gazans and for estimating how many civilians are nearby.

Hamas is responsible for using its people as human shields and so has probably committed tens of thousands of war crimes against its own people during this war.

But does this excuse the IDF from catching a repeat error on estimating civilians where – according to the reports – it was estimating civilians sometimes from cell phone use or from old records – without using drones or forces on the ground to double check changes?

On November 16, 2023, the IDF allegedly killed dozens of members of the Malaka family, including a number of women and minors. According to the New York Times, the IDF’s estimate of civilian harm was around 16 based on cell phone use and former records. But cell phone use was out and dozens of additional people had come to shelter in the same area due to a lack of other not-bombed areas to take shelter in. Unlike earlier wars, the report said the IDF did not invest in localized resources to check if its civilian estimates were correct.

Even assuming there was some mid-level terrorist there, if the IDF misestimated civilians by the dozens not only this time, but many times, at one point does such an error carry a new level of responsibility, potentially even criminal?

Airwars, a London-based conflict monitor, documented 136 IDF strikes that it said each killed at least 15 people in October 2023 alone. 

Presumably a certain number of these people were Hamas terrorists and the Airwars numbers may have other deficiencies, but, until now, the IDF has not publicly addressed most of them to give its narrative with any specificity other than to make generic declarations.

The Post has learned that the IDF's views is that over generalizations that it was overly reliant on AI and cell phone tracking to determine potential civilian harm is inaccurate, and that even in October 2023, there were other tools available - though it, for now, it not stipulating what those tools are.

Previously, the Post has reported that drones are regularly used to follow the status of civilians in a target area and that there have been hundreds if not thousands of cases, where the IDF called off an attack when the drones revealed that too many civilians were in an area about to be struck. 

Yet after all of this, the fact is that multiple operations in question with alleged 100 to 1 terrorists/civilian ratios took place over a year ago and the IDF still has not produced a real public reckoning regarding those operations - even if the fact that there are over 85 IDF criminal probes, hundreds of disciplinary probes, and likely over 1,000 initial reviews, shows that the military is investing real resources in probing potential war crimes allegations.

Delaying fully addressing these year-old allegations (as opposed to allegations of alleged IDF wrongdoing from Jabalya from the last two months) is not only problematic legally, ethically, and in the PR war, but it will likely concretely harm Israeli national interests in the not-so-distant future.

ICC arrest warrants

On November 21, the International Criminal Court approved arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.

Israelis who have always viewed trying to dialogue with the ICC as a waste of time seized on this moment as proof that the worst case has happened and now the ICC should just be ignored.

But the worst case has not happened.

Israeli dialogue and probes of its own alleged war crimes have had a number of victories over the years.

The first ICC war crimes allegations were brought in 2009, many more were brought in 2014, and yet, if not for the current much bloodier war of 2023-2024, no arrest warrants might have ever been issued. Even as is, the arrest warrants were effectively delayed 15 years – not a small win.

Finally, the worst case scenario for Israel is not that two political officials face arrest warrants: it is that hundreds or thousands of IDF soldiers could face arrest warrants.

ICC Prosecutor Karim Khan specifically said in his decision that because of IDF probes of itself, he has not yet sought arrest warrants against Israeli soldiers. But he also said that if IDF probes were insufficient or took too long, he could choose to seek arrest warrants against soldiers also.

Some think that Donald Trump’s election will save Israel from the ICC because he and the US Congress may sanction ICC officials.

But the US is not a member of the ICC and does not provide funding to it. Any pressure the US can bring on the ICC is at best indirect.

The longer time passes and the more in-depth articles with anonymous cooperating IDF officials come out with the IDF not showing up with its specific rebuttals, including sometime sharing the granular operational details, the harder these above questions become for those seeking to defend Israel’s overall record and the greater the danger that the worst case scenario with the ICC will transpire.