Lieutenant Colonel Jonathan Conricus said Hamas occupied “several floors” of the building.Īssuming that these descriptions are accurate, it is reasonable for the IDF to determine that the tower’s “present function” (to borrow the description from the DoD Manual) qualified the building as a military objective. At least according to the IDF, this Hamas R&D unit that was reportedly present in the tower “used capabilities against Israel in a number of incidents in attempts to sabotage and disrupt the actions of the IDF and of civilians in the area adjacent to the Gaza Strip.” More specifically, a senior Israeli military official told the New York Times that it housed equipment used to try to jam Israeli communications and satellite navigation systems. According to a statement by an IDF spokesperson, the tower “housed the Hamas Research and Development unit,” which “consists of subject matter experts (SMEs) which constitute a unique asset to” Hamas. I respectfully disagree with this analysis and the resulting conclusions – and the explanation presented to the public by the IDF after the attack supports my perspective.įirst, I disagree with the assertion that the tower was not being used by Hamas as a military objective at the time of the attack. Haque integrates the “purpose” aspect of this definition into his analysis when he observes that the “tower was a civilian object unless Hamas members had the intent ( purpose) to use the offices for military purposes in the future.” (emphasis in original)Īccording to Haque’s analysis, it is “highly unlikely that Hamas members would return to the tower and resume military activities” at the tower, and this observation leads Haque to conclude that it is “doubtful” that the tower thus qualified for the “purpose” aspect of the definition for military objectives.
According to the description in the Manual, “‘use’ refers to the object’s present function,” while “‘purpose’ means the intended or possible use in the future.” Prof. While treaty law doesn’t establish controlling definitions for the “purpose” or “use” components of the definition for military objectives, the DoD Law of War Manual presents a helpful description of both that, by my assessment, is uncontroversial. However, I reach a different conclusion than he does in applying the definitions of “purpose” and “use” – and this divergence leads he and I to different conclusions regarding the potential unlawfulness of the attack. This form of disagreement also produces different outcomes as to how we assess whether the strike violated the proportionality rule, that is, how we can or cannot tell whether the expected harm to civilians and civilian objects was excessive in relation to the military advantage the IDF commanders anticipated.Īpplying the “Purpose” and “Use” Aspects of the Definition for Military Objectives Haque’s analysis that the “nature” and “location” aspects of the definition of military objectives do not apply to the assessment of the attack on Al Jalaa tower. Military objectives are defined in international law, as Haque points out, as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
Haque correctly bases his analysis on the LOAC distinction rule, my assessment is that his application of the rule is mistaken and that this error produces an incorrect conclusion regarding the unlawfulness of the attack. Our disagreement is reducible, but only in part, to how one applies the law when facts needed to make a full assessment are not publicly available.Īs Haque notes, the LOAC distinction rule requires attacks to be directed against military objectives. The central point of divergence from which I begin the assessment of Haque’s analysis is this passage from his article: “The airstrike on Al Jalaa tower was illegal for the simple reason that the tower was not a military objective (a ‘lawful target’) at the time of the airstrike.” While Prof. However, on this occasion I respectfully disagree both with the analysis and the conclusions he presents on these pages. Haque I have read, I value his informed perspective. As is the case with all scholarly discourse from Prof. I read with interest Professor Adil Haque’s legal analysis of the widely criticized attack by the Israel Defense Forces (IDF) on Al Jalaa tower.