Brian Cox on “The Al-Ahli Hospital Explosion in Gaza Indicates International Law Is the First Casualty in War (Part II)
Today we are treated to Part II of Brian Cox’s extremely important essay which concludes that we may be seeing the “death of international law involving armed conflict.” As you‘ll recall from Part I, Brian is explaining his rationale for his “bold” and “provocative” conclusion that “truth has now been displaced by the law as the first casualty in war.”
Again, Part I can be found here.
The Al-Ahli Hospital Explosion in Gaza Indicates International Law Is the First Casualty in War (Part II)
by Brian L. Cox
Part I of this post examines the factual background, global public and political reaction, and fundamental international law analysis involving the explosion at al-Ahli hospital in Gaza on October 17, 2023.
With the foundation for the analysis thus established previously in Part I, the inquiry continues now in Part II by investigating the roots of the popular perception that the law of armed conflict (LOAC) functions as a set of rules that seeks primarily to limit the effects of armed conflict or, similarly, primarily to protect civilians.
After examining the origins of this prevalent perception, the inquiry then continues by evaluating the effect of this conceptualization on political legitimacy and on the legitimacy of international law as it exists in doctrine. The combined analysis suggests that the law is now the first casualty in war.
International Humanitarian Law and Limiting the Effects of Armed Conflict
The perception that the law of war functions primarily for the protection of civilians in armed conflict has emerged gradually during the preceding fifty years or so.
The roots of this progressive rebranding can be traced to Jean Pictet’s endeavor, beginning in the mid-1960’s, to merge three distinct branches of international law – Hague law (mostly involving targeting), Geneva law (involving the four separate categories of persons protected pursuant to each of the four 1949 Geneva Conventions), and human rights law – under the unified legal framework that he referred to then as international humanitarian law (IHL).
This effort to combine the law of war (that is, the Hague and Geneva streams) and human rights law into a single body of law was inspired, as Pictet later describes, by an aspiration to “find what connected the two, until then regarded as alien to one another, instead of what separated them.”
With this purpose in mind, Pictet identified two distinct aims he considered to be common among both the law of war and human rights law: “to limit the evils of war and to defend man against arbitrary action.” (emphasis added)
Pictet’s vision for international humanitarian law – which now accommodated Hague law, Geneva law, and human rights law as one unified framework – encouraged then, as it continues to do today, a progressively constrictive interpretation of the law of armed conflict.
This understanding, for example, formed the foundation for what Theodor Meron famously articulated in 2000 as the “Humanization of Humanitarian Law.” Pictet’s vision likewise continues to be reflected in the description by the International Committee of the Red Cross (ICRC) for the purpose of IHL, which the organization describes as a “set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict.” (emphasis added).
Although a comprehensive examination of the progressive understanding of international law from 1966 to the present day is beyond the scope of this article, the inspiration to “limit the effects of armed conflict” for “humanitarian reasons” also gradually gave rise to a rather more recent phenomenon: the protection of civilians movement.
UN Secretary-General Remarks to Launch “Protection of Civilians in Armed Conflict” Debate
A comprehensive accounting of the gradual development of the protection of civilians (PoC) movement is also beyond the scope of the current post.
For present purposes, it is sufficient to canvas some relevant sources emphasizing the role of international law in protecting civilians in armed conflict that were extant prior to the current phase of active hostilities between Israel and Hamas. Doing so will set the stage for evaluating the nature of the public and political rhetoric that has emerged in the wake of the October 7 terrorist attacks.
The first resource to be analyzed here, an address by UN Secretary-General António Guterres to the Security Council in May 2023, is a veritable masterclass in rebranding the law of armed conflict in service of the PoC movement.
The Secretary-General begins by noting his “report on the protection of civilians in armed conflict in 2022 shows that war is devastating lives around the world.” He continues by asserting, “Explosive weapons continue to wreak havoc, especially in the cities.” Next, Guterres contends, “Last year, 94 per cent of their victims in populated areas were civilians.”
After canvassing the dire state of civilians in various armed conflicts throughout the world to set the stage, Guterres’s remarks pivot to a call to action for all UN Member States. Here, Guterres begins by lamenting, “[T]he terrible truth is that the world is failing to live up to its commitments to protect civilians; commitments enshrined in international humanitarian law.”
The Secretary-General goes on to encourage governments that exercise “influence over warring parties [to] engage in political dialogue and train forces on protecting civilians.” He also calls on “countries that export weapons [to] refuse to do business with any party that fails to comply with international humanitarian law.”
Guterres eventually closes his remarks by noting, “Civilians have suffered the deadly effects of armed conflict for too long. It is time we live up to our promise to protect them.”
This concluding portion of the address by the Secretary-General begins by framing Member States’ commitments to “protect civilians” as “commitments enshrined in” IHL. The preceding lengthy recitation of specific instances of human suffering during armed conflict is proffered as evidence of the widespread commitments – enshrined in international law – to protect civilians.
Protection of Civilians and Effects-Based Accountability
What is missing from Guterres’s remarks is an assessment of compliance (or otherwise) with doctrinal provisions of international law – whether jus ad bellum or jus in bello. War is irrefutably “devastating lives around the world,” but Guterres fails to demonstrate a causal relationship between this tragic reality and a purported failure to comply with LOAC.
Explosive weapons likewise undoubtedly continue to wreak havoc on civilians in populated areas, for example, but again this is not evidence of pervasive LOAC violations. The same is true for the assertion, which is drawn from a data set plagued with pervasive methodological limitations, that 94 per cent of casualties from explosive weapons in populated areas are civilians.
In this address, the connection between civilian suffering in armed conflict and compliance with international law is purely effects based. That is, the widespread and appalling suffering of civilians in armed conflict as an outcome is presented as evidence of a systemic failure to adequately comply with international law.
This rhetorical technique is a paradigmatic example of pursuing effects-based accountability in armed conflict. As Prof. Geoff Corn has emphasized repeatedly (here and here on Lawfire; here with Sean Watts on Articles of War), effects-based accountability is inconsistent with a doctrinal approach to assessing LOAC compliance.
By adopting the PoC approach, Secretary-General Guterres depicts the protection of civilians as the primary purpose of international law involving armed conflict – and widespread suffering by civilians is evidence of systemic failures to comply with international law. From this approach, improved “compliance” would ostensibly improve the plight of civilians in war.
However, no evidence of actual LOAC violations is offered in support of these characterizations. Instead, the law is rebranded as a rhetorical tool to condemn anecdotal (though compelling) suffering experienced by civilians in armed conflict.
The “commitment” to “protect civilians” and the “commitment” to “international humanitarian law” are merged as one, such that the existence of civilian harm becomes evidence of a failure to comply with legal obligations. As a rhetorical tool, existing provisions of international law are stripped of their doctrinal utility – and in the process, actual compliance with the law ceases to be relevant.
PoC Movement and Widespread Distortion of International Law
Although the analysis immediately above is limited to one address by Secretary-General Guterres in May 2023, these isolated remarks are by no means alone in fostering a prevailing environment of rebranding international law as a rhetorical tool for the protection of civilians. Capturing and analyzing every example of rhetoric that mischaracterizes international law in service of the PoC movement would generate a truly anthological text.
For present purposes, two representative examples prior to October 7 are offered, in addition to Secretary-General Guterres’s remarks analyzed above, to illustrate the effects of such rhetoric on public discourse before the current phase of the conflict.
One example is drawn from advocacy in support of a bill known as the Civilian Harm Review and Reassessment Act that was introduced by Rep. Sara Jacobs (D-CA) at the beginning of August and has made no movement since. In support of the bill, Lia Lindsey, a senior humanitarian policy advisor for Oxfam America reportedly claimed, “US forces should be kept to the highest standard for respecting the lives and rights of civilians and when it falls short, must be held accountable.”
From this perspective, compliance with doctrinal provisions of international law is irrelevant. The highest standard US forces much uphold – and for which they must be held to account by the government – is “respecting lives and rights of civilians.” (emphasis added) The proposed legislation, according to Lindsey, would constitute an “important step to ensuring transparency and oversight” in support of this version of effects-based accountability.
A similar assertion was offered by Udo Jude Ilo, interim executive director of the humanitarian advocacy organization known as CIVIC, when the group launched its current “Not Collateral Damage” messaging campaign in early September.
As a call to action in support of the launch, he asserts, “Protecting civilians in conflict is both a legal and moral imperative.” (emphasis added) He then observes that among the “many solutions available to protect civilians from armed conflict and address harm when it occurs” is for countries, global institutions, and warring parties to adhere “to the letter to international humanitarian law and international human rights law.”
Setting aside for present purposes the problematic amalgamation of international humanitarian law and human rights law, this perspective yet again repurposes international law as an instrument that exists solely for the protection of civilians. The actual “letter” of the law becomes irrelevant if it fails to adequately protect civilians in conflict.
These two representative examples of PoC rhetoric join UN Secretary-General Guterres’s remarks to outline the state of public discourse as it existed prior to the terrorist attacks by Hamas on October 7. With this rhetorical foundation in place, it should come as no surprise that international law has been systemically distorted by calls for Israel to constrain or cease its military response to the attacks in order to better “protect” civilians and, in doing so, to comply with international law.
Protection of Civilians Rhetoric in Israel-Hamas Conflict
Capturing every example of PoC rhetoric that has permeated public – and political – discourse since the current phase of the conflict began on October 7 would similarly constitute a rather extensive catalog. Once again, I will relate just a few representative examples of the hundreds – perhaps thousands – that have surfaced since then.
One such example is from a social media post by Rep. Sara Jacobs involving the attack by Israel directed against Hamas fighters located in, around, and under the Jabalia refugee camp. In the post, Jacobs describes the outcome as “horrific” before claiming, “States have an obligation to protect civilians. Even if the strikes were aimed at legitimate targets, repeatedly bombing Jabalia refugee camp is completely unacceptable.” (emphasis added)
In reality, states have an obligation to comply with relevant LOAC rules. As I have previously noted while analyzing this attack, external observers and commentators “not directly involved in an attack or tasked with assessing compliance afterward simply do not have access to the information necessary to draw authoritative conclusions.” This is true even for all external commentators – even for members of Congress.
Returning next to rhetoric from António Guterres since the current phase of the conflict began, the UN Secretary-General suggested during a press conference on November 6 that the “protection of civilians must be paramount” for those engaged in the conduct of hostilities. In contravention to this paramount obligation, Guterres then expressed his deep concern “about clear violations of international humanitarian law that we are witnessing.”
As a separate example of similar PoC rhetoric, a joint letter signed by a coalition of 33 “humanitarian, national security, human rights, faith-based, civilian protection, and grassroots organizations” published a letter in November to Defense Sectary Lloyd Austin urging him to “refrain from granting the government of Israel access to the U.S.-origin 155mm munitions currently stockpiled there.”
According to the letter, “granting the government of Israel access to these munitions would undermine the protection of civilians, respect for international humanitarian law, and the credibility of the Biden administration.” (emphasis added)
Finally, also on the topic of arms exports and security assistance, Sen. Bernie Sanders (D-VT) claimed in an op-ed published by the New York Times on Thanksgiving that the United States “must demand an immediate end to Israel’s indiscriminate bombing, which is causing an enormous number of civilian casualties and is in violation of international law.”
Just like for a doctrinal proportionality assessment, Sanders does not have access to information that would be necessary to credibly determine whether the IDF is engaged in “indiscriminate bombing.” In reality, then, Sanders’ claim that Israel’s conduct “is in violation of international law” must solely be founded on a value judgement regarding the “enormous number of civilian casualties” that have been reportedly caused thereby.
Three Traits Shared Among Prevailing PoC Rhetoric
These examples of public and political civilian protection rhetoric share at least three common traits.
First, each constitutes an attempt to convert the law of armed conflict into an effects-based legal construct, which is doctrinally impermissible.
Second, each involves an inherently subjective value judgement about the “excessiveness” of civilian harm, without attempting to preserve – indeed, even to consider – the delicate balance between military necessity and humanity.
Third, each one substitutes the protection of civilians for genuinely assessing compliance with relevant provisions of international law.
In this alternative construct, compliance with the law of armed conflict as it actually functions in doctrine becomes irrelevant. Civilians are harmed, this outcome is unacceptable, and therefore the conduct is characterized as unlawful.
Divergence in Popular Perception and Professional Application
This brand of rhetoric permeates contemporary public and political discourse involving armed conflict.
Whether for the United Nations bureaucracy, the chief prosecutor for the International Criminal Court, members of Congress, civil society activists, journalists, or indeed for any unskilled netizen wishing to join the discussion involving the protection of civilians, these observers have no responsibility or obligation to consider or to apply, in practice, the law of armed conflict as it doctrinally exists.
This attribute sets these observers apart from members of military organizations who are required to learn, study, and apply relevant doctrinal aspects of international law in preparation for, or during the actual conduct of, armed hostilities. The resulting disparity leads international law to be the first casualty of war even before hostilities begin.
Based on this characterization of prevailing popular perceptions of the purpose and function of international law, the recent observation by an AP journalist suggesting “it appeared uncertain that Israel would follow through on commitments it made to [U.S. Secretary of State Anthony Blinken] to protect Palestinian civilians from military operations in the southern Gaza Strip” as active hostilities resumed on December 1 is alarming for just how routine it seems to be.
The journalist brackets this apparent “uncertainty” between a quote from Secretary Blinken expressing the “imperative” for Israel to “act in accordance with international humanitarian law and the laws of war” and a claim by the Hamas-controlled Palestinian health ministry that more than 100 people were killed in airstrikes by the IDF that same day.
The appearance that is created, by a journalist with no responsibility for applying LOAC as it doctrinally exists, progresses in three distinct steps: 1) Blinken emphasized the need for Israel to comply with LOAC; 2) it is “uncertain that Israel would follow through on commitments it made to protect Palestinian civilians” (emphasis added); and 3) reports of massive civilian casualties are the cause of the uncertainty – both involving LOAC compliance and the “commitments” to “protect” civilians.
This perception is completely devoid of a doctrinal analysis that might conclude the reported civilian casualties are the result of actual LOAC violations. The “commitment” to protect civilians is utilized as a proxy for doctrinal LOAC compliance – and this approach is alarming for just how routine it is in popular public discourse.
Aligning Prevailing Perception with Doctrinal Reality
The combined analysis thus far may seem a rather grim assessment of the condition of the law involving armed conflict. However, the current state of the doctrinal application of international law in the context of the conduct of armed hostilities is, in reality, not nearly as dire as I portray above.
Rather, the focal point of the present inquiry is the prevailing perception in public discourse of the purpose and function of the law of armed conflict – widely rebranded, that is, as “humanitarian” law. Just under the wide but shallow veneer of civilian protection rhetoric – in operations centers and on training grounds and actual battlefields the world over – the law as it doctrinally exists is very much alive and well and functioning just as intended.
Realigning public perception with doctrinal reality is not an impossible task, though the sheer scale of the prevailing misperception means doing so would be no easy endeavor.
Widespread recognition that the law of armed conflict is not, as the venerable ICRC describes, a “set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict” represents a good place to start. This conceptualization invites and encourages a progressively constraining interpretation of relevant provisions of international law.
That is, if the effects of armed conflict are considered to be “excessive” – by some ambiguous, inherently subjective standard – and the purpose of the law is indeed to limit those effects, then the law as it exists in doctrine is perceived to be ineffective. The “solution” to this problem is a more restrictive version of the law.
Then, if the observed effects are still considered to be unacceptably excessive, the law is once again perceived to be deficient, and an even more limiting formulation of the law is fashioned as the “solution.”
The same progressive phenomenon emerges, for the same reason, if the law of armed conflict is rebranded instead as a set of rules that exists to codify “protections for civilians during wartime.”
An alternative understanding of the purpose of the law of armed conflict can be drawn from the DoD Law of War Manual. As the Manual expresses, “prohibitions on conduct in the law of war may be understood to reflect States’ determinations that such conduct is militarily unnecessary per se.”
This doctrinal description of the law of armed conflict integrates military necessity, and doing so promotes a more objective balance between necessity and humanity. The alternative, popular conceptions disregard military necessity altogether – and this renders them deficient in both theory and in practice.
Evolving Irrelevance of Facts and Law
As Gérard Araud, former French ambassador to the United States, suggested following the explosion at al-Ahli hospital, “The truth about who was responsible for the Gaza hospital strike is now irrelevant.”
The reflexive global public and official political response indicates that the law was irrelevant as well. The truth was rendered immaterial immediately after the incident, but the law was irrelevant long before the terrorist attacks by Hamas on October 7 sparked the current wave of conflict.
The widespread movement seeking to rebrand the purpose of international law to limit the effects of armed conflict or, alternatively, to protect the civilian population, is responsible for rendering the doctrinal version of the law irrelevant in the court of global public opinion.
When conduct can be credibly condemned as illegal based on partial, unreliable information and in the complete absence of a balanced, impartial analysis, the law of armed conflict as it actually exists is rendered meaningless – at least in the forum of public discourse.
This condition is expedient, for example, for humanitarian activists and progressive politicians seeking to curtail U.S. arms transfers to Israel out of concern for harm to civilians rather than a doctrinal assessment of compliance with international law as it actually exists. But widespread popular misperceptions erode legitimacy and render the law as it functions in doctrine meaningless in the process.
Concluding Reflections: Reviving a Doctrinal Understanding of the Law of Armed Conflict
To reverse this popular, prevailing distortion, political officials of governments that care about the continued relevance of international law must become more active in pubic discourse in a manner that promotes and protects the delicate balance between military necessity and humanity.
Ideally, these governments would “flood the zone” with balanced messaging to contest the “external drumbeat of legal commentary” that erodes the legitimacy of genuinely lawful operations due to misleading or uninformed perceptions of illegality. At the very least, government officials must exercise discipline in public messaging in order to avoid contributing to distortions that erode legitimacy by fueling misperceptions of the law.
Scholars and other specialists with an interest in maintaining the legitimacy – and, therefore, the effectiveness – of international law as it exists doctrinally must actively and deliberately counter, head on, prevalent popular distortions that are based on uninformed or misleading interpretations of international law.
Humanitarian activists contributing to such distortions would do well to reflect on whether the nature of their advocacy actually puts civilians at greater risk by further encouraging armed actors to hide among the civilian population, with the intent and purpose of eroding the legitimacy of operations carried out with a commitment to complying with international law but that nonetheless result in harm to civilians.
The global outrage in response to the explosion at al-Ahli hospital constitutes a persuasive piece of evidence indicating that the law is now the first casualty of war. Even so, a revival of the law of armed conflict, as it exists in doctrine and functions in practice, is possible.
The sheer scale of the task may seem daunting, but many hands do indeed make light work. Little by little, perhaps the tide can be turned and popular perceptions of international law can shift to match doctrinal reality.
Until then, the law is, and will remain, the first casualty of war.
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!