Guest Post: Brian Cox on the “Nuseirat Hostage Rescue and the LOAC Proportionality Rule”
In today’s post Lawfire® contributor Brian Cox does a deep dive into the oft-misunderstood proportionality rule in the Law of Armed Conflict (LOAC). He examines proportionality in the context of reports about the recent Israeli hostage rescue operation in Gaza’s Nuseirat camp.
Brian argues that “perspectives typically presented in the forum of contemporary public discourse…fundamentally misrepresent the LOAC proportionality rule as it exists in doctrine.” He explains how the proportionality rule is supposed to be applied and points out where many commentators go awry.
Among other thing, he contends that “public commentators typically do not “have access to the information that would be required to evaluate the doctrinal version of proportionality.” He believes that mischaracterization of LOAC rules ultimately erodes the perceived legitimacy of international law. Here’s Brian’s take on this important issue:
Nuseirat Hostage Rescue and the LOAC Proportionality Rule
by Brian L. Cox
The joint operation carried out by Israel in and around Nuseirat camp on June 8, during which four hostages were rescued from captivity, was swiftly commended and condemned in both official and public messaging.
Upon conclusion of the operation, for example, Israel’s Prime Minister Benjamin Netanyahu expressed that the entire nation salutes “the courageous fighters who today risked their lives in order to save lives.” U.S. National Security Advisor Jake Sullivan, meanwhile, commended “the work of the Israeli security services that conducted this daring operation.”
On the other end of the messaging spectrum, Josep Borrell Fontelles, High Representative of the EU for Foreign Affairs and Security Policy, declared on social media that “reports from Gaza of another massacre of civilians are appalling,” the EU condemns “this in the strongest terms,” and that “the bloodbath [in Gaza] must end immediately.”
Likewise, Norway’s Deputy Foreign Minister Andreas Motzfeldt Kravik announced he is “appalled by reports of another massacre of civilians in Gaza” and that “Norway condemns attacks on civilians in the strongest terms.”
As one would expect, messaging in the public domain runs the gamut as well, though public perspectives predictably push the bounds of extreme at either end of the spectrum. Framing an event in a particular manner in official and public messaging to advance a preferred policy agenda or sociopolitical perspective is, of course, not a new phenomenon.
Widespread reliance on rhetoric of a manifestly legal character to support such messaging is a rather more recent development. Indeed, this trend has become noticeably prevalent during the past several decades, to such an extent that the use of inherently legal rhetoric to support official messaging and public narratives is now routine practice in the current conflict between Israel and Hamas.
Emerging perspectives in the public domain involving the Nuseirat raid present a productive case study for examining this trend. In this post, I address discourse involving the proportionality rule of the law of armed conflict (LOAC).
In addition to the proportionality inquiry, a study of other topics related to the Nuseirat operation would also be productive, such as the LOAC prohibition against perfidy and exploring a number of false equivalencies that emerged following the operation that are also common in general public discourse.
Although I reach a different conclusion regarding whether perfidy actually applies in a non-international armed conflict in a recent media interview, for example, I generally endorse (and recommend) the analysis and conclusions regarding this topic by Todd Huntley on Articles of War.
These inquiries involving topics such as proportionality, perfidy, and false equivalencies, individually and as a collective whole, provide constructive context for assessing the ways in which international law is used—and habitually abused—in contemporary official and public discourse.
While a future occasion may provide an opportunity to analyze related topics, the present post is limited in scope to explore the LOAC proportionality rule in relation to the Nuseirat hostage rescue operation.
Examples of Proportionality Expressions in Public Domain
As illustrative examples, the present inquiry addresses three specific examples of articulations of the LOAC proportionality rule expressed by three separate commentators who specialize in public international law as well as a version of the proportionality rule articulated by journalists reporting on the Nuseirat rescue operation.
The first example presented herein is from a social media entry posted the day after the rescue operation by Professor Ben Saul, the current UN Special Rapporteur on Human Rights & Counterterrorism.
In the entry, Professor Saul indicates, in part, that the raid “may have been illegally launched in anticipation that civilian casualties would be excessive” (the second component of this social media entry, involving perfidy, is worthy of study but is nonetheless beyond the scope of the present post).
For a similar observation, a Washington Post media report involving the operation presents a quote from Professor Adil Haque suggesting the “foreseeable harm to civilians was disproportionate to the legitimate aim of rescuing the four hostages.”
In this media story that conveys Professor Haque’s analysis, the journalistic commentary asserts, “The principle of proportionality prohibits armies from inflicting civilian casualties that are excessive in relation to the direct military advantage anticipated at the time of the strike.”
As an example that blends the rhetorical techniques discernible in the versions of the LOAC proportionality rule articulated above, Professor Kenneth Roth observes in an opinion article posted on The Guardian, “International humanitarian law requires militaries to take ‘all feasible precautions’ to spare civilians, which Hamas violated by holding the hostages in two apartment buildings in Nuseirat, but that does not relieve Israel of the separate duty to avoid an attack that causes disproportionate harm to civilians.”
These characterizations are consistent with perspectives typically presented in the forum of contemporary public discourse, yet each one fundamentally misrepresents the LOAC proportionality rule as it exists in doctrine.
This post analyzes each characterization to clarify how each one deviates from the doctrinal version of proportionality before examining the detrimental effect of this deviation on LOAC theory and practice.
Doctrinal Articulation of Proportionality Rule
Although Israel has not ratified Additional Protocol I (1977) to the 1949 Geneva Conventions (AP I), this treaty presents the text of what is widely referred to as the proportionality rule.
Specifically, the formulation in AP I prohibits “an attack 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” (emphasis added).
A separate provision of AP I, in turn, affirms that the term “attack” means “acts of violence against the adversary, whether in offence or in defence” (emphasis added).
The corollary to the proportionality rule established in the Rome Statute (which Israel also has not ratified), proscribes, “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian …which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” (emphasis added).
Acknowledging the caution that must be exercised when drawing on text of a conventional source that has not been ratified by the country in question as a proxy for an expression of customary law, these passages from AP I are adequate for present purposes of evaluating perspectives quoted above related to the LOAC proportionality rule.
Indeed, an information paper published by Israel’s Ministry of Foreign Affairs articulates the LOAC proportionality rule in a manner that is almost identical to the doctrinal version reflected in AP I.
Specifically, the information paper notes that, pursuant to the LOAC proportionality rule, “it is prohibited to carry out an attack when the expected incidental loss of civilian life, injury to civilians, or damage to civilian objects would be excessive in relation to the concrete and direct military advantage that is anticipated from the attack” (emphasis added).
For present purposes, then, the articulation presented in AP I is adopted as the doctrinal standard for the LOAC proportionality rule, while the version established in the Rome Statute is also considered along with the AP I version.
Evaluating Incidental Damage Expected from Each Attack When Assessing LOAC Compliance
The first fundamental flaw in the characterizations of the LOAC proportionality rule presented above by Ben Saul, Adil Haque, and Kenneth Roth as a matter of doctrine is that each professes to evaluate compliance with the rule based on an assessment of the entire operation rather than on specific acts of violence. The doctrinal version of the rule requires an evaluation of each specific attack, or act of violence, rather than of the mission or operation as a whole.
Instead, Saul suggests the rescue may have been illegally launched, while Haque suggests the foreseeable harm “was disproportionate” without articulating a specific act of violence he professes to be evaluating. Roth’s observation presents the same error by treating the entire operation as “an attack” that, according to his estimation, caused “disproportionate harm to civilians” overall.
In some circumstances, it is reasonable to aggregate the incidental damage expected from multiple acts of violence when each one is directed at separate components of an integrated target.
Ian Henderson helpfully illustrates this point by considering the destruction of “modern communication nodes” since one “attack on a single node in a redundant system could be considered as having no effect” (p. 202).
For such a series of acts of violence, it may be appropriate to consider the expected incidental damage and anticipated military advantage collectively as a single attack when evaluating compliance with the LOAC proportionality rule.
Nonetheless, as Henderson suggests, “this concept is without prejudice to the fact that…distinct military objectives in an urban area cannot be treated as one objective” (p. 201, emphasis added).
Accumulating expected incidental damage is suitable only in exceptional cases, such as a networked and integrated military objectives for which the concrete and direct military advantage is anticipated from capturing, destroying, or neutralizing the system as a whole rather than its individual components.
This limited exception does not support evaluating the incidental damage expected from a mission or operation as a whole more broadly since each individual act of violence involves a separate expectation of incidental damage, if any.
The expressions by Ben Saul, Adil Haque, and Kenneth Ross profess to evaluate the LOAC proportionality rule based on the overall operation, and doing so is inconsistent with the doctrinal version of the rule.
Evaluating Incidental Damage Expected Before and During an Attack
Compounding this error, all three suggestions likewise offer a post hoc assessment regarding the “excessive” (Saul) and “disproportionate” (Haque & Roth) nature of the incidental harm anticipated (of the entire operation, rather than of a specific attack) by Israel’s security forces without indicating the factual basis to support these conclusions.
All doctrinal articulations of the LOAC proportionality rule presented above require an ex ante evaluation of the expected incidental damage (AP I, Israel’s MFA), or knowledge of incidental damage (Rome Statute), at the time of the attack.
Only if the attacker expects, or knows, the incidental damage will be excessive in relation to the concrete and direct military advantage anticipated from that attack is the doctrinal version of the LOAC proportionality rule violated (“clearly” excessive for the Rome Statute).
This doctrinal version is incompatible with assertions that the rescue operation as a whole constitutes a violation of the proportionality rule. Neither conclusion assesses each individual attack, and neither describes the declarant’s basis for conclusively determining the degree of incidental harm expected by those responsible for each individual attack at the time.
On both counts, then, the assertions in public discourse by Professors Saul, Haque, and Roth presented above fail to articulate valid conclusions related to the doctrinal version of the LOAC proportionality rule.
Evaluating compliance with the doctrinal proportionality rule requires information regarding: 1) the incidental damage expected and military advantage anticipated by personnel responsible for an attack at the time; 2) for each attack as an “act of violence.”
As the DoD Law of War Manual helpfully points out, while citing similar observations from various other countries, the “military advantage” anticipated from an attack refers to “the advantage gained from the attack considered as a whole, rather than only from isolated or particular parts of an attack” (§ 5.12.2.1). This is intuitive since a single operation often involves multiple attacks on separate, but mutually reinforcing, military objectives.
For example, attacking only one adversary at an observation post (OP) who is providing early warning information for an enemy base of operations may result in only a limited degree of military advantage.
However, that lone adversary is providing intelligence support to the entire base of operations. As such, an attack on the OP may consider the overall military advantage to be gained from defeating the enemy base of operations as a whole rather than from neutralizing the sole adversary staffing the OP alone.
Even so, evaluating compliance with the LOAC proportionality rule requires information regarding the incidental damage expected and (overall) military advantage anticipated from each attack, or act of violence. None of the articulations of the proportionality rule analyzed above do so.
Effects-based Proportionality “Rule” and Unreliability of Incidental Damage Data
Each version of the proportionality analysis presented above impermissibly converts the doctrinal LOAC rule into an effects-based test by evaluating the apparent outcome of an attack (that is, the operation as a whole) rather than the process that led to the attack. This non-doctrinal version of the LOAC proportionality rule has, unfortunately, become all too common in the forum of public discourse.
The reporters responsible for the Washington Post story in which Professor Haque’s analysis is conveyed, for example, suggest, “The principle of proportionality prohibits armies from inflicting civilian casualties that are excessive in relation to the direct military advantage anticipated at the time of the strike” (emphasis added). Professor Kenneth Roth converts the proportionality rule into an effects-based test in a similar manner by claiming Israel has a duty to “avoid an attack that causes disproportionate harm to civilians” (emphasis added).
The components of these articulations that are emphasized constitute a subtle yet substantial deviation from the doctrinal version of the LOAC proportionality rule. Assessing the doctrinal version requires information involving the incidental damage expected, whereas this colloquial version is evaluated based on the degree of incidental damage reported to result from an attack.
Not only does this impermissibly convert the doctrinal proportionality rule into an effects-based assessment, but it also relies on data that is notoriously unreliable—reports of incidental damage that emerge after an attack—to determine whether the incidental damage was “excessive.”
Drawing from the Nuseirat mission as an example, media coverage conveys an estimate of “less than 100” civilian casualties as reported by Israel, “274 deaths” announced by the Ministry of Health in Gaza, while Jake Sullivan (U.S. national security adviser) suggests “we may never be able to definitively determine [the death toll]” from the operation.
Although all civilian casualties that occur as a result of armed conflict are regrettable, the inherent nature of active hostilities often makes the extent of incidental damage caused by an attack difficult to determine with precision.
Even when it is possible to develop a precise and reliable account, data accumulated in the wake of an incident does little to inform the extent of incidental damage expected at the time of the attack.
Connection Between Feasible Precautions and the LOAC Proportionality Rule
Even though compliance with the LOAC proportionality rule must be evaluated based on the degree of incidental damage expected and military advantage anticipated from each specific attack, it is possible to implement operational precautions that mitigate the overall risk of incidental damage. In doing so, the feasible precautions rule and the proportionality rule can be mutually reinforcing.
Returning to the DoD Law of War Manual again as an illustrative example, this doctrinal text presents a section (§ 5.11) describing the connection between the proportionality rule and the requirement to implement feasible precautions in the attack.
Some specific examples of feasible precautions noted in this section include: “assessing risk to civilians”; “adjusting the timing of an attack”; and “cancelling or suspending attacks based on new information raising concerns of expected civilian casualties.”
Although these LOAC rules can be visualized as mutually reinforcing, the Manual also emphasizes near the outset of this section that determining “what precautions are feasible depends greatly on the context” (cross-referencing § 5.2.3.2 (What Precautions Are Feasible)). Feasible precautions, in turn, “are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations” (§ 5.2.3.2).
This connection between feasible precautions and proportionality is relevant, for example, to an observation presented in the opinion article analyzed above. There, the author suggests one “obvious precaution is to launch military operations at a time of day when fewer civilians are present, but the Israeli military launched the rescue operation shortly before noon, hoping to surprise Hamas, which would have expected a night-time operation.”
Rather than transferring “the risk to the many Palestinian civilians who were out and about in the middle of the day, particularly in the nearby market, greatly increasing the death toll,” as the author suggests, adjusting the timing of the rescue operation in hopes of surprising Hamas may well have been a feasible precaution specifically implemented by those responsible for planning the operation.
Catching an adversary by surprise can support mission accomplishment by reducing the enemy’s ability to counter the operation, but this can also mitigate the overall risk of incidental damage by reducing the volume of fires anticipated from insurgents who are prepared for and expecting the raid.
In any event, as the DoD Law of War Manual emphasizes, determining precisely “what precautions are feasible depends greatly on the context.” Because the process of determining whether precautions are “feasible” is highly contextual, evaluating compliance with this requirement after an attack based on the limited information available in the public domain is problematic—just as it is for assessing compliance with the LOAC proportionality rule.
Although implementing feasible precautions such as adjusting the timing of an operation can mitigate the incidental damage expected from individual attacks in support of that operation, thereby supporting compliance with the proportionality rule, assessing the latter still requires information regarding the incidental damage expected and military advantage anticipated at the time from each specific act of violence—or “attack”—rather than from an overall operation.
Proportionality, Legitimacy, and the Divergence Between Perception and Practice
The doctrinal version of the LOAC proportionality rule that military operators and their legal advisors are required to apply in practice necessitates an assessment of the incidental harm expected before and during an attack.
The non-doctrinal version of LOAC proportionality often presented and analyzed in the public domain does not—nor do public commentators typically have access to the information that would be required to evaluate the doctrinal version of proportionality in the first instance.
The resulting divergence means public perception of “compliance” with the LOAC proportionality rule does not align with the manner in which the rule is applied and evaluated in actual practice. This, in turn, undermines operational legitimacy by supporting claims of illegality that may have no basis in fact or in law, while concurrently eroding the perceived effectiveness of international law as it is seemingly (but not necessarily actually) habitually disregarded or defied with impunity.
Condemnation based on a non-doctrinal, effects-based version of LOAC rules, in this case proportionality, has become the norm in contemporary public discourse, and it is commentators in the public domain who habitually mischaracterize or distort doctrinal LOAC rules with actual impunity. Popular perceptions involving the Nuseirat hostage rescue represent but one specific example of this general trend.
The present study of the LOAC proportionality rule supports the previous observation by the present author here on Lawfire that the law—rather than the truth—is now the first casualty in war. My prescription then, as it is now, is “a revival of the law of armed conflict [as] it exists in doctrine and functions in practice” to ensure public perceptions of compliance with international law may yet again align with doctrinal reality.
About the author:
Dr. Brian L. Cox is an adjunct professor of law at Cornell Law School and a graduate research fellow with the Centre for International and Defence Policy at Queen’s University. 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 a J.S.D. from Cornell Law School, an LL.M. from Queen’s Law, and a B.A. (International Studies) 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!
