How Israel shifted stance on civilian deaths in Gaza bombings

Military used to plan strikes to limit civilian deaths but thinking changed quickly after October 7 last year

Palestinians inspect the damage following an Israeli air strike at the Nuseirat refugee camp in central Gaza on December 13. Bloomberg

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“We bombed the target, but the angle the bomb came in was not good and it collapsed the entire building. There was a very heavy silence in the room after this happened, as we realised the consequences of this.”

These were comments off the record to The National by a former Israeli air force pilot, describing a simulation about a decade ago which involved trying to strike one room in a building with a missile where militants were present. His remarks point to a shift in how the Israeli military views civilian casualties in the Gaza war, which has killed 45,000 Palestinians.

There has been a shift in what military analysts call “targeting”, which involves the planning and means by which enemies are struck from the air, taking into account factors such as the weapon used and presence of civilians.

In its military doctrine, Israel had standards and tactics to limit “civilian harm” – in the words of international humanitarian law – the most famous tactic being the “roof knock”.

The controversial practice involved the detonation of a very small bomb on the roof of a civilian building that warned residents it was about to be hit with a bigger bomb. Many residents might not have realised the sound was a warning amid the wider din of war.

According to a senior Israeli military source speaking to The Times of Israel in the days after October 7 last year, roof knocking was to be replaced with short-notice, mass eviction orders. Fourteen months on, much of Gaza has been devastated, in some cases during huge air strikes in built-up areas that killed scores or even hundreds of people.

While much of the damage was done in the opening months of the war, when thousands of tonnes of bombs were dropped as Israel retaliated against Hamas, it is no longer clear why such levels of violence are still used as the conflict winds down.

One strike on October 29 in Beit Lahia created particular anger, killing between 40 and 70 people to strike a Hamas spotter with binoculars, according to an Israeli officer’s off-the-record account to the BBC. The Israeli army said publicly that the “precise strike” had hit Hamas fighters.

Robert Goldman, an expert in international humanitarian law and former UN Human Rights Commission independent expert, said Israel has often failed to uphold standards of civilian protection.

“It is almost as if they are treating civilians within or adjacent to military objectives, as if they were voluntary human shields that are directly participating in hostilities. It doesn't seem that they are taking the kinds of precautions in attacks in terms of the choice of weapon to avoid, much less minimise, foreseeable harm to civilians and adjacent civilian structures,” he said.

He stressed that Hamas, as well as the Israeli army, has a responsibility to protect civilians by placing military infrastructure away from them.

“Hamas has deliberately exposed its civilians to the effects of hostilities and said ‘This is the price we have to pay.' But the Israelis have very much played into their hands. There's no question that Hamas has deliberately placed tunnels underneath civilian structures. That said, the civilians who live in those structures still have the benefit of the proportionality rule.

“It seems to me that in attack after attack, one has to question the military advantage gained.”

The “advantage gained” is a key concept in international humanitarian law. Armed forces are expected to evaluate use of force in places inhabited by civilians through a concept known as proportionality.

The Geneva Conventions, to which Israel is a signatory, outlines proportionality and prohibits attacks on the enemy “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

Thousands of Israeli air strikes have allegedly targeted low-level Hamas members in their homes, with potentially dated information and little regard for civilians as the buildings collapsed, detailed in an investigation last year by Israeli publication +972.

Evaluating civilian harm

International humanitarian law is interpreted as providing some leeway for civilian harm. For example, if soldiers are fired on from an apartment, they can fire back in self-defence, possibly killing civilians present. But it stresses they must make efforts to avoid such harm.

It also limits the extent that combatants can use human shields, because while civilian sites are “protected”, they can lose “protection” if combatants are present. Those using the human shields are therefore potential war criminals.

US doctrine describes scenarios where commanders should consider the appropriate weapon to use if an enemy is near civilians.

“An armoured vehicle used in combat is located at a school. The vehicle is a military objective. However, destroying the vehicle with certain types of munitions may cause incidental or collateral injury to civilian persons and damage to civilian objects,” says the most recent US military targeting manual from 2021.

“The potential for collateral consequences should also help guide their selection of capability to use against the vehicle,” it continues, referring to the size of the bomb used. For example, a Hellfire missile from a helicopter would destroy the vehicle, but spare the school. A 450-kilogram bomb could destroy both.

Another notable example is Washington's now abandoned Non-Combatant Casualty Value (NCV) system used between 2001 and 2018. This placed a limit on the number of civilian deaths deemed acceptable from an attack on the enemy if civilians were near, with an expected attack on former Al Qaeda head Osama bin Laden having an NCV of 30 civilians killed.

When the civilian deaths from a strike were expected to be higher, authorisation was passed up the chain of command to be signed off by a senior general. But NCVs for lower-level commanders were often one or zero, although this did not guarantee civilian protection.

Proving war crimes

Mr Goldman said that while strikes like the Beit Lahia attack are disturbing, it is hard to prove whether there was disregard for civilian life or intentional murder.

“It’s very difficult to allege and prove for a prosecutor, an indiscriminate attack, because you have to work back in time and you say, ‘OK, to destroy this tunnel, you ended up killing 80 civilians who were in this structure. Our view is that this is utterly disproportionate.’ They have to judge what was known at the time. What precautions did the commanders take and so forth. What was the basis of intelligence? Did they attempt to use an appropriate size munition?

“The burden is going to be on the prosecution to prove something.”

The former pilot said of the Beit Lahia attack: “Looking at my experience and my training that I've been through, I do believe this was definitely a mistake.

“Usually for spotters, you do this little missile, it’s like a grenade. There's no need to put the whole bomb there, on the whole house. It's possible that they did use a bigger bomb in order to try to get the blast in a different direction, to get to a specific room or specific floor. And this was a mistake, but somehow it created a collapse of the whole thing.”

But he added that after October 7, the process of selecting targets may have been sped up to the point where mistakes became more common.

The targeting process is “a production line. It was always looked at as a production line,” he said, adding that in his experience in the 2014 Gaza war, efforts were taken to minimise civilian deaths.

“It's possible that in the context of the long war after October 7, it became harder to do this kind of thing with all of the targets. And in general, since Protective Edge in 2014, there was a push for the IDF and a change in tactics for closer and more responsive air support for the ground forces.” He said this could be behind a rise in civilian deaths.

For Mr Goldman, there are other factors at play, not only Hamas hiding among civilians, but bitter anger in the aftermath of October 7.

“There's no question about the element, in my view, of vengeance,” he said.