Brian Cox on “The Al-Ahli Hospital Explosion in Gaza Indicates International Law Is the First Casualty in War (Part I)”
Today’s post by Lawfire® contributor Brian Lee Cox is an especially important one as he explains why we may be seeing the “death of international law involving armed conflict.” In a two-part essay Brian carefully explains the rationale for his “bold” and “provocative” conclusion that “truth has now been displaced by the law as the first casualty in war.”
I found Brian’s essay to be one of the most thoughtful – and important – pieces I’ve read in a long time. It addresses rather directly a concern I’ve ruminated about of late: are we seeing a deadly brew of misinformation and misunderstandings poisoning the international law of war? Brian gives us an answer that ought to make us all concerned.
Yes, the essay, especially with Part II (which I expect to post on Tuesday, December 5th), is longer than usual, but this topic deserves (requires?) a thorough examination In the strongest terms, I urge you to read this article and Part II when it becomes available.
The Al-Ahli Hospital Explosion in Gaza Indicates International Law Is the First Casualty in War (Part I)
by Brian Lee Cox
In war, truth is the first casualty. This widely recognized maxim has deep – perhaps even ancient – historical roots. Though the adage may seem intuitively accurate, in reality the truth has been displaced of late by another phenomenon as war’s preliminary casualty.
In truth, the law is now the first casualty in war. Law supplants the truth as war’s initial casualty because, in the contemporary landscape of legal scholarship and public perception, the law is dead long before the horrors of war are unleashed and the truth is subsequently slain.
If this observation is accurate, the death of international law involving armed conflict is a rather new phenomenon with explicitly identifiable roots. Indeed, the recent – and ongoing – movement to recast the law of war as a set of rules that exists primarily for the protection of civilians in armed conflict is responsible.
The protection of civilians (PoC) movement is unceasing and remains active regardless of whether an armed conflict happens to exist at any given moment. With the PoC movement ever-present and with the movement responsible for the death of the law, truth has now been displaced by the law as the first casualty in war.
This is a bold – and, I explicitly acknowledge, provocative – conceptual assertion. Defending it comprehensively and compellingly could call for a treatise-length work of scholarship.
For present purposes, I instead focus on one specific incident in the ongoing armed conflict between Israel and Hamas for illustrative purposes: the explosion at al-Ahli hospital in the Gaza strip on October 17, 2023.
Outline of Inquiry and Analysis
The focus for Part I is on the facts known about the explosion, the global public and political narratives that ensued, and then a summary application of relevant rules of international law from a doctrinal perspective.
Part II then considers pertinent aspects of popular perceptions involving the manner in which international law functions in practice. The goal of this component of the inquiry is to evaluate whether there is an appreciable divergence between public perception and doctrinal reality.
With an affirmative finding, the analysis in Part II then considers the effect of this divergence on political legitimacy and on the perceived legitimacy of international law.
These topics, taken together, support the assertion that the law of armed conflict (LOAC) was dead long before the terrorist attacks by Hamas in Israel on October 7 initiated the most recent active hostilities.
At the outset of the substantive analysis, it is useful to frame the present inquiry by briefly summarizing the known facts and the subsequent global reaction before addressing the basic doctrinal legal principles involved in analyzing the incident.
Al-Ahli Hospital Explosion: Facts and Attribution
Very little about even the factual circumstances involving the blast at al-Ahli hospital remains uncontentious. There seems to be a general consensus that an explosion occurred at the hospital just before 7:00 pm local time on October 17.
The cause of the blast, the extent of the incidental damage that occurred as a result, and whether the incident is attributable to the Israel Defence Forces (IDF) or Hamas fighters remain contested in public discourse.
The day after the explosion, President Joe Biden indicated that Hamas was responsible, saying during a visit to Israel that, based on evidence he had seen, “it appears as though it was done by the other team” rather than the IDF.
That same day, National Security Council spokesperson Adrienne Watson reportedly announced on social media that “our current assessment, based on analysis of overhead imagery, intercepts and open source information, is that Israel is not responsible for the explosion at the hospital in Gaza yesterday.”
Early media reporting indicated that “Hamas-controlled Palestinian authorities in Gaza immediately blamed Israel, claiming it was a deliberate air strike” and that Israel denied involvement.
Initial media analysis pieced together assorted video clips and various bits of open source intelligence and concluded that an errant rocket, probably fired by Hamas near the hospital, was likely responsible. Subsequent media reporting interpreted the available evidence slightly differently while supporting the same conclusion.
Global Response to Hospital Explosion
Regardless of the actual attribution, global reaction condemning Israel for attacking the hospital was immediate and fervid. Hezbollah described the attack as a “massacre” and a “brutal crime” committed by Israel. As a call to action, the group urged supporters to, “Let tomorrow, Wednesday, be a day of rage against the enemy.”
In response, violent protests were held in various locations across the globe – including several attacks against U.S. and Israeli embassies.
Likewise, a disorderly demonstration staged in the U.S. Capitol led to more than 300 arrests the day after the hospital explosion. Before the group entered the Capitol, Rep. Rashida Tlaib (D-MI) told the protestors that although “[we] just continue to watch people think it’s okay to bomb a hospital with children,” she nonetheless insisted, “A lot of people are not gonna forget this! It’s not a threat — it isn’t!”
If it seems that Hezbollah, the disruptive protestors throughout the world, and Rep. Tlaib collectively developed an impulsive reaction to the incident based on an injudicious disregard for verifiable facts and reasoned analysis, they were by no means alone in that regard.
The far-left news service Al Jazeera helpfully assembled and published an extensive collection of global reactions on the day of the explosion, mostly from official political sources, while providing continuous updates until the next day.
President Abdel Fattah el-Sisi of Egypt, for example, described the explosion as a “deliberate bombing” and a “clear violation of international law.” The government of Qatar characterized the incident as “a heinous crime against defenceless civilians” and a “blatant violation of the provisions of international law.” Echoing Hezbollah’s condemnation, King Abdullah II of Jordan denounced the explosion as a “massacre,” while also condemning the incident as a “war crime.”
And so on. The sampling included immediately above should perhaps come as no surprise for readers familiar with political rhetoric stemming from members of the League of Arab States, as the individual members and the League routinely leverage international law rhetoric in support of strategic objectives.
Political Reactions from Western Europe and North America
What may be more surprising, though, are immediate reactions offered by governments – particularly in the West – with seemingly no geopolitical capital to be gained from denouncing an attack initially believed to be attributable to Israel as a violation of international law.
As the Al Jazeera report helpfully points out, for example, Prime Minister Justin Trudeau of Canada told reporters that news of the (then-apparent) strike was “horrific and absolutely unacceptable” and that “international law needs to be respected in this and in all cases.” He continued by asserting, “There are rules around wars and it’s not acceptable to hit a hospital.”
Likewise, President of Finland, Sauli Niinisto, described attacks on civilians as “reprehensible” while emphasizing, “International humanitarian law must be respected in all circumstances and its violations must be investigated.”
Meanwhile, Josep Borrell, High Representative of the European Union for Foreign Affairs and Security Policy, expressed regret that “innocent civilians pay the highest price” in armed conflict while demanding that “responsibility for this crime must be clearly established and the perpetrators held accountable.”
Similarly, Charles Michel, President of the European Council, reportedly asserted that “attacks on civilian infrastructure are not in accordance with international law.”
All of these comments, regardless of the source, share at least one common attribute. Even though attribution for the explosion had not yet been firmly established – indeed, characterization of the explosion as an attack was not yet confirmed – all the rhetoric presented above had already concluded immediately after the explosion that a violation of international law had been committed.
To explain why these characterizations support the observation that international law was already dead before this most recent flare up of open hostilities between Israel and Hamas, it is helpful to briefly summarize how international law actually applies to this incident.
Fundamental Rules of International Law: Serious Violations
Setting aside for the time being the central matter of attribution while also assuming, arguendo, that the explosion at al-Ahli hospital constituted an attack, identifying the applicable LOAC rules is a rather straightforward endeavor.
For present purposes, I draw from the Rome Statute of the International Criminal Court as a template for relevant rules. Like the United States, Israel has not ratified this multilateral treaty – so the text is technically irrelevant as a matter of conventional international law.
However, as I have previously assessed elsewhere in long form, “In the evolution of prescriptions of international criminal law, the Rome Statute is the apex designation.” It is common practice to refer directly to the text of Additional Protocol I (AP I) in an analysis of this sort, but that treaty is twice removed from direct applicability in this instance because Israel has not ratified it and because it applies, by its own terms (with cross-reference to Common Article 2 of the 1949 Geneva Conventions), only to an armed conflict between states.
It is also not uncommon to refer to the Customary International Humanitarian Law study published and maintained by the International Committee of the Red Cross. Due to fundamental methodological limitations, however, this resource should not be utilized directly as an authoritative articulation of actual international law (though it is certainly an incredibly useful research tool).
Drawing instead, then, on the text of the Rome Statute involving LOAC rules applicable for a non-international armed conflict (NIAC), it is a war crime to intentionally direct an attack “against the civilian population as such or against individual civilians not taking direct part in hostilities.” Likewise, intentionally directing an attack against “hospitals and places where the sick and wounded are collected, provided they are not military objective” is a war crime.
Although the LOAC proportionality rule is not presented in the section related to war crimes applicable in a NIAC, in an international armed conflict (IAC) it is a serious violation to intentionally launch “an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
Israel is involved in a NIAC, rather than an IAC, against Hamas, but, like many other countries (including the United States), it applies the proportionality rule during targeting operations nonetheless.
Fundamental Rules of International Law: Advance Warning and Feasible Precautions
In the current context, it is useful to consult AP I for two additional specific rules that are not addressed in the Rome Statute since violations of these obligations alone do not constitute serious LOAC violations.
One such rule establishes that civilian medical facilities do not lose protection from attack unless they are used to commit acts harmful to the enemy – and even then, advance warning must be given and this warning must go unheeded before the medical facility loses protection.
Although this rule only applies to States party to AP I involved in an IAC as a matter of conventional law, pursuant to customary law Israel has affirmed that “special protection afforded under international law to objects such as hospitals is reflected in IDF procedures.” (related provisions involving medical units, hospital ships, and civilian hospitals are established in Geneva Convention (GC) I (art 21), GC II (art 34), and GC IV (art 19) of 1949, respectively – though as a matter of conventional law).
Another central LOAC rule to keep in mind is the requirement to take feasible precautions in the attack. The specific formulation presented in AP I does not necessarily reflect customary international law, but it is uncontroversial to assert that a general obligation to take feasible precautions is customary.
A recent articulation of the rule published by the Israel Ministry of Foreign Affairs affirms, “Under LOAC, when conducting attacks, parties to a conflict must take precautions that are feasible under the operational circumstances to minimize civilian death or injury as well as damage to civilian objects.”
As this expression confirms, determining what precautions are feasible is highly contextual since it is based on the “operational circumstances” involved at the time of an attack. It is not uncommon to rely heavily on the feasible precautions rule in support of an assertion that a specific attack violated international law or that a military campaign in general may be inflicting too much damage to be “lawful.”
However, the highly contextual nature of applying the obligation to take feasible precautions in practice makes the rule difficult – if not impossible – to credibly assess from an ex post perspective, especially from outside the military organization responsible for the attacks.
Facts Matter: Possible Scenarios and Legal Implications
With the basic legal framework sketched, the foundational matter of attribution can return to the analysis. Attribution was temporarily set aside at the outset in order to outline the central LOAC rules that apply to the incident.
In reality, the relevant rules are impossible to credibly analyze if the explosion cannot be convincingly attributed to a party to the conflict. Even if attribution is established, it is also useful to develop as much reliable information as possible regarding the circumstances and intent involved.
The analysis would be considerably different, for example, if the factual circumstances indicate that a rocket fired by Hamas malfunctioned and landed at the hospital than if, say, it appears that the explosion was the result of an IDF air strike. If the factual circumstances suggest that the explosion were caused by a rocket fired by Hamas that was intercepted by Israeli counter rocket, artillery, and mortar system such as the renowned Iron Dome, the analysis would likewise be different.
Although the existence of various potential factual circumstances generates uncertainty regarding the process and eventual outcome of the LOAC analysis, a recent post written by Prof. Aurel Sari considers the various factual scenarios and the implications of each possibility. Even though there may be some very negligible differences in how I might conduct the same assessment, I enthusiastically endorse (and recommend) Aurel’s approach, analysis, and conclusions.
One of the defining characteristics of Aurel’s analysis is that he does not presuppose factual considerations regarding what happened, who is responsible – and, most importantly for present purposes – whether the incident constitutes a LOAC violation.
As Aurel notes near the beginning of his analysis (and I enthusiastically concur): “While it may be tempting to allocate blame in response to the suffering playing out on our TV screens and our social media feeds, rushing to conclusions and throwing around allegations of war crimes or worse without at least a reasonably firm understanding of the facts does not help. Get the facts, identify the law, assess. In that order.”
Getting the facts, identifying the law, assessing. In that order.
This is sound advice that should be universally applied for anyone purporting to reach conclusions regarding the prospective lawfulness of this or any other attack or similar incident that occurs in the conduct of armed hostilities. Unfortunately, this manner of balanced and impartial LOAC analysis is vanishingly rare in the forum of global public discourse.
As Gérard Araud, former French ambassador to the United States, remarked following the explosion at al-Ahli hospital, “The truth about who was responsible for the Gaza hospital strike is now irrelevant. Public opinion has decided: Israel is the culprit. All the explanations won’t do anything. This is a major defeat for Israel. It will have political consequences.”
Unfortunately, Araud’s remarks present a perfectly accurate portrayal of the current state of public and political discourse involving this “attack” specifically and the conduct of hostilities in general. Note the progression in Araud’s observation from the irrelevance of the truth to deciding one party (in this case, Israel) is the “culprit” (which connotes responsibility for unlawful conduct) to the political consequences in store for the apparent (but apparently not actual) malefactor.
If facts are irrelevant and the law is pervasively misrepresented, political consequences can be exacted against any party for any reason – indeed, it seems likely in this instance, for no reason at all. Hamas blamed Israel, Hezbollah called for a day of rage in solidarity with Hamas, and sympathetic partisans the world over responded in kind.
The factual circumstances involved in the explosion, of course, arose only after the current phase of active hostilities was initiated. However, international law involving armed conflict became a casualty long before the hospital explosion or the October 7 terrorist attack perpetrated by Hamas in Israel that initiated the current phase of active hostilities.
With the factual landscape, global public reaction, and fundamental aspects of international law thus addressed, Part I now draws to a close. The analysis picks up again in Part II by considering the popular perception that the primary function of the law of armed conflict is to limit the effects of armed conflict or, similarly, to protect the civilian population during hostilities.
The conclusion of the combined analysis, here in Part I and next in Part II, is that the law – rather than the truth – is now the first casualty of war.
(Look for Part II of this vitally important discussion on Tuesday, December 5.)
About the author:
Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School and a a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section). Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.
Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, Joint Firepower Certification, and Special Victim Unit Investigator Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.
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!