Guest Post: Dave Graham on “The Oft-Forgotten ‘Strategic’ Component of the LOAC ‘Proportionality’ Calculation”

Today we’re fortunate to hear from Lawfire^® contributor and renowned law of armed conflict (LOAC) expert, David Graham.  Dave critiques Geoff Corn’s post “The Disproportionate Confusion About Proportionality,” and mine, “Why Israeli operations in Gaza are legally complex”

Dave gently chides Geoff for not including “factors that might be deemed appropriate in calculating the ‘concrete and direct military advantage’ to be gained in attacking a particular target.”  Dave then goes on to suggest his own list of factors he believes could be applicable to the Israeli “decision to strike what has reported to have been a, perhaps the, senior Hamas commander (Ibrahim Biari) and his staff, reportedly ensconced in a tunnel complex located beneath the Jabalya refugee camp.”

As for my essay, Dave says that I chose to “to illustrate [the] strategic component of the target selection calculus…by means of an unnecessarily extreme example—when, perhaps, the very survival of the State of Israel might be at risk.”  To Dave, the “stakes need not be this high.” 

Dave seems to interpret me as saying that strategic considerations only come into play when the survival of the state is at stake.  Of course, that’s not my view.  Strategic considerations come into play (or should come into play) to a greater or lesser degree in virtually all targeting situations (and are often reflected in rules of engagement).

Rather, what I was pointing out is that in this specific conflict–unlike some conflicts–the survival of the state is involved.  After all the President described Hamas as an enemy whose  “stated purpose for existing is the destruction of the State of Israel and the murder of Jewish people.”  Consequently, I noted that “Given such genocidal statements, Israel may reasonably consider itself in a conflict where the ‘military advantage’ [it is] seeking in its ‘war strategy’ is nothing less than saving its state and its people from annihilation.” 

I later suggested that in terms of the law (as opposed to perhaps political or other calculations), “what might be an ‘excessive’ loss of civilians in one sort of conflict, may not be unlawfully excessive in an existential fight for the very survival of a nation and its people.”  I also added a caution: “To be clear, this isn’t carte blanche; the proportionality analysis must take place and each target must be a bonafide military objective.” 

Beyond this particular matter, I agree with virtually all of Dave’s essay (and I bet Geoff does as well).

In any event, I urge you to read Dave’s critique!

THE OFT- FORGOTTEN “STRATEGIC” COMPONENT OF THE LOAC “PROPORTIONALITY” CALCULATION

by David Graham

       Several recent Lawfire posts have understandably dealt with the legal complexities surrounding the applicability of the Law of Armed Conflict (LOAC) principle of “proportionality” in the context of the ongoing Israeli-Hamas conflict. (Geoff Corn, “The Disproportionate Confusion About Proportionality”, 26 October 2023, and Charlie Dunlap, “Why Israeli operations in Gaza are legally complex”, 28 October, 2023).

      As would be expected, each of these widely recognized LOAC authorities has offered a clear and concise explanation of the law impacting proportionality calculations made by commanders, as well as by a State’s political leadership, in the target selection process. However, perhaps missing in their analysis of the proportionality determinative calculation is a more careful consideration of the oft-overlooked “strategic” component of this calculus. What do I mean by this?

      The “proportionality” rule in issue is set forth in section 2.4.1.2 of the DOD Law of War Manual:

 “This principle creates obligations to refrain from attacks in which the expected harm incidental to such attacks would be excessive in relation to the concrete and direct military advantage to be gained and to take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack.”

      Geoff Corn, in his piece, reminds us that commanders and other attack-decision makers, in applying this rule, must balance the value of attacking a target against the “incidental and collateral” consequences of the attack on civilians and civilian property. And, he follows this admonition with several particularly relevant observations.

      First-that proportionality is not defined by attack outcome, but, instead, is centered on whether the individual launching the attack made a reasonable proportionality assessment. That is, in any given situation facing a commander, was it “reasonable” for this individual-or any other empowered decision maker-acting on the intelligence available at the time, to make a judgment that the value of the attack was not substantially outweighed by the risk to civilians and/or civilian property?

      Second-a legitimate critique of any given decision to strike a particular target must thus focus on the attack “decision” process, rather than on the attack “outcome”, as it is essentially impossible to conclude that an attack on a target violated the rule of proportionality without objectively assessing the “situation” that informed the attack decision at the time that it was made.

      And, there’s the rub. What considerations do, in fact, go into assessing the “situation” that informs a particular targeting decision? Geoff stops short on this front. Absent in his analysis is any discussion of those factors that might be deemed appropriate in calculating the “concrete and direct military advantage” to be gained in attacking a particular target, an advantage that, importantly, must outweigh, in the mind of the “reasonable” decision maker, any anticipated loss of civilian life and property.

      Enter Charlie Dunlap at this point, however, referencing, in his comments dealing with proportionality, a DOD Law of War Manual section that speaks directly to the scope of the context in which “military advantage” might be adjudged, section 5.6.7.3.:

“’Military advantage’ refers to the advantage anticipated from an attack when considered as a whole, and not only from its isolated or particular parts. Similarly, ‘military advantage’ is not restricted to immediate tactical gains, but may be assessed in the full context of the war strategy.”

      And, with this, he is reminding us of the fact that, indeed, there does exist a very important “strategic” aspect to the target selection calculation process-that a go-no go-targeting decision can indeed be based on the reasonably foreseeable, outsized, impact that a strike in issue might well have on a military campaign, writ large. That is, that the target calculation may consider factors that are transcendent in nature, rather than, exclusively, those present and apparent at a certain moment in time.

     Having said this, however, in my view, Charlie has chosen to illustrate when this strategic component of the target selection calculus might come into play by means of an unnecessarily extreme example—when, perhaps, the very survival of the State of Israel might be at risk. To my mind, the stakes need not be this high. The LOAC simply does not restrict a State’s right to factor strategic considerations into the selection of particular targets, for the purpose of gaining military advantage, to only a situation involving its “survival”. Rather, such targeting considerations may constitute an integral aspect of a State’s implementation of any comprehensive war-making effort.

      Now, let’s move from the abstract existence of the LOAC right to take strategic goals into consideration in the target selection process to the real-world applicability of this right. And, here, we need look no farther than one of the more controversial and criticized targeting decisions made by Israel in its ongoing conflict with Hamas. This is the decision to strike what has reported to have been a, perhaps the, senior Hamas commander (Ibrahim Biari) and his staff, reportedly ensconced in a tunnel complex located beneath the Jabalya refugee camp.

      In focusing on this attack, my intent is neither to justify-nor condemn-the Israeli decision to conduct this strike. Rather, the purpose is to explore how strategic targeting considerations may well have played a role in the Israeli assessment of the proportionality-mandated balance between the military advantage expected to be gained and the anticipated civilian casualties and destruction that might occur.

     The Israeli decision making/target selection process may have unfolded in the following manner (and, I’m confident that this was an Israeli government, vice exclusively Israel Defense Force [IDF], decision):

       Overarching strategic considerations:

1. 1. Hamas has, as its stated mission, the destruction of the State of Israel and the killing of its Jewish citizenry.
   2. Periodic Israeli military action against Hamas, in the past, has enabled Israel to mitigate, but never eliminate, the ongoing Hamas threat.
   3. The 7 October Hamas murder of over 1200 Israeli citizens and its taking of hundreds of mostly civilian hostages has demonstrated, definitively, that Israel can no longer live with the perpetual threat of Hamas on its southern border. The Hamas leadership has stated that it is their intent to replicate the events of 7 October again and again.
   4. As a precursor to discussions focused on establishing a lasting peace, for both Israelis and Palestinians, Hamas must thus be completely eliminated, militarily and politically. There can be no more half-measures taken.
   5. All Israeli political and military decisions made in the context of the military campaign waged against Hamas must further the achievement of this strategic goal-the complete defeat of Hamas as a condition predicate for the achievement of a lasting peace within the region.
      

       Targeting of Ibrahim Biari and key staff members:

1. 1. Reliable intelligence indicates that Biari planned the 7 October attack, as well as numerous preceding attacks against the Israeli civilian populace, and is the principal commander of Hamas personnel functioning in the Gaza Strip.
   2. The elimination of this individual, together with a number of his principal staff members, will thus have a significant (strategic-outsized) impact on the operational effectiveness of Hamas. This, in turn, may well shorten the time required to defeat Hamas, reducing both IDF and Palestinian civilian casualties, as well as damage to civilian property.
   3. Biari and his staff have been intentionally situated in a tunnel complex that runs beneath the Jabalya Refugee Camp housing hundreds of Palestinian civilians.
   4. The IDF has provided repeated warnings to those Palestinian officials responsible for the Refugee Camp, as well as to the refugees themselves, that, due to the location of Biari and his staff, the tunnel complex beneath the Camp is subject to-and will be-attacked.
   5. Hamas has directed/forced the refugees concerned to stay in place, essentially making these civilians unwilling Hamas foot soldiers.
   6. Providing Biari and his staff immunity from attack as a result of their violation of the LOAC (use of civilian shields) will only incentivize further such Hamas behavior throughout Gaza City.
   7. The type of ordnance required to destroy the tunnel complex, with the resulting degree of collateral damage that will occur, will not lend itself to an argument that a “precision” strike was conducted.
   8. Given the inability/reluctance of many civilians in the Refugee Camp to evacuate, a significant number of civilian casualties is a given. Substantial damage to civilian property will also result.
   9. The attack on the tunnel complex, for the purpose of eliminating “one man”, with its resulting civilian casualties and property damage, will be condemned, internationally, as a disproportionate, excessive use of force—a “war crime”.
   10. Hamas will garner a significant propaganda victory as a result of the attack-leading to enhanced support for its actions and multiple calls for what it views as its key “strategic” objective-a cease fire.

    These are some, certainly not all, of the relevant factors that IDF military and other Israeli government attorneys would have had to consider when conducting the proportionality calculus surrounding the strike on Biari and his staff. I know a number of these attorneys. They are exceptionally well-schooled in the LOAC and are acutely/acutely aware of the necessity of minimizing civilian casualties and property damage to the fullest extent possible when providing advice on proposed target sets.

     Of course, while I am familiar with the proportionality calculus process that these attorneys worked through, taking into consideration each of the factors concerned, the specific legal advice provided in this instance is certainly an unknown. And the same is true as to whether the advice given was, in fact, heeded by those possessed with the ultimate decision making authority. Bear in mind this fundamental operational maxim, however: “Lawyers advise; commanders decide.”

     As earlier indicated, my intent in focusing on the Israeli strike on the tunnel complex in issue has been to neither condemn, nor validate, the attack’s legality. Rather, a closer look at the determinative factors at play in this particular situation are meant to remind the Lawfire readership that the LOAC provides that a proportionality calculus surrounding a targeting decision may indeed include strategic, as well as tactical, considerations. 

     In this regard, it is essential to recall, also, that “strategic” targeting factors are those that may well impact the very course/success of the military campaign as a whole. They differ significantly from those that are solely tactical in nature. Given this, a proportionality determination, driven by considerations related to achieving a possible conflict-altering strategic, rather than singular tactical, goal, may well result in the conclusion that even should, potentially, a high loss of civilian life and property damage occur, these losses will not be excessive in relation to the overall strategic military advantage expected to be gained by engaging a particular target.

     Targeting decisions based on proportionality determinations derived from comprehensive strategic, rather than singular tactical, considerations are often difficult for the public to understand and for those making such determinations to explain and defend. Nevertheless, under the LOAC, such considerations may serve as a critical component in the proportionality determinative process associated with target selection. We would do well to not overlook this fact.

About the author:

Colonel (Retired) David E. Graham is the former Chair of the International/Operational Law Department–the Judge Advocate General’s School of the Army (TJAGSA), where he played the seminal role in developing the field of Operational Law; the former Director of the Center for Law and Military Operations, TJAGSA; the former Chief of the International/Operational Law Division—Office of The Judge Advocate General, Department of the Army; the former Executive Director—The Army’s Judge Advocate General’s Legal Center and School; and the former Associate Director, Center for National Security Law, the University of Virginia School of Law.

Currently, he is a Special Advisor to the ABA’s Standing Committee on Law and National Security; serves on the Editorial Board of the “Journal of National Security Law and Policy”; and is a Senior Fellow at the Georgetown Law Center’s Center on National Security. He is a Distinguished Graduate of the National War College and  holds a B.A. from Texas A&M University, an M.A. in International Affairs from The George Washington University, a J.D. from the University of Texas School of Law, and a Certificate from The Hague Academy of International Law.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!