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Collateral Genocide: Inside Israel’s Official ‘Legalisation’ of Mass Civilian Killings

Israel’s key defence is that it is not intending to destroy Gazans, but to destroy Hamas – so whatever happens is therefore not intentional

Palestinians check the damage following Israeli bombardment on February 16, 2024
Palestinians check the damage following Israeli bombardment in Rafah, southern Gaza on 16 February 2024. Photo: UPI / Alamy Stock Photo

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An Israeli Government legal analysis published by the Ministry of Foreign Affairs inadvertently reveals how mass destruction of civilians in Gaza is built into the Israel Defense Forces’ (IDF) calculations of legitimate proportionate violence, according to an exclusive Byline Times analysis.

Drawing on two previous investigations, the analysis shows that the Israeli Government’s legal justifications for mass civilian casualties are consistent with an official policy of deliberately using disproportionate force against civilians, which is conducive to genocidal violence.

After six months, the IDF war on Gaza has resulted in the killing of 33,200 Palestinians and the destruction of over 70% of all homes in Gaza, leaving 1.9 million Palestinians displaced. Over 2% of Gaza’s children were killed or injured. Eight out of every 10 schools has been destroyed, along with 84% of all health facilities.

The scale of the violence has caused UN experts to accuse Israel of complicity in genocidal violence. Last year, South Africa launched an unprecedented application to the International Court of Justice calling for the Israeli actions to be recognised as genocide. The court has not yet issued a verdict, but did conclude that the case presented was “plausible” – and urged Israel to take measures to prevent a genocide.

It was only until seven World Central Kitchen aid workers were executed in IDF drone strikes in early April that Israel’s closest allies began to question the IDF’s conduct.

However, so far both the US and UK have largely accepted the IDF’s account that they were a result of grave errors in breach of IDF procedures.

A man displays blood-stained British, Polish, and Australian passports after an Israeli airstrike, in Deir al-Balah, Gaza Strip, in April. Photo: AP Photo/Abdel Kareem Hana/ Alamy

Two major investigations by Byline Times have unearthed evidence that contradicts this narrative. Our reporting revealed that the head of the IDF’s internal inquiry, Major General Yoav Har-Even, had numerous conflicts of interest which raise questions about his ability to conduct a credible inquiry. Not only was Har-Even a participant in the IDF’s “Dahiya doctrine” involving the deliberate use of disproportionate force against civilians in the 2006 Lebanon War, he directly supported the IDF’s war in Gaza from up to February 2024, and is connected to senior Israeli military figures who architected the Dahiya doctrine’s institutionalisation into official IDF policy.

We also exposed how the Obama administration had closely monitored the IDF’s adoption of the Dahiya doctrine, an IDF strategy that justifies countering an enemy by systematically targeting its national civilian population with overwhelming disproportionate force. Obama aides had received credible information that the Dahiya doctrine’s implementation during Operation Cast Lead had resulted in deadly targeting of civilians, and knew that the IDF was incapable of complying with international humanitarian law without significant international pressure. The US Government later colluded with IDF leaders to refute credible evidence of the Israeli military’s complicity in war crimes.

As early as 2010, the US Government was told by the Israeli delegation of the International Committee of the Red Cross (ICRC) that IDF commanders had considerable leeway in making decisions about proportionality when considering civilian casualty ratios, did not adequately distinguish between civilians and combatants, and routinely created kill zones in areas where civilians had been ordered to evacuate where soldiers could freely shoot “anything that moved”. As a result, even civilian aid convoys had been targeted.

In this context, IDF procedures purportedly created to protect civilians – such as leaflet dropping, roof knocking, warning calls and texts to residents – end up providing a pretext to justify disproportionate violence targeted at civilian areas on a huge scale.

As noted by Larry Lewis, former State Department advisor on civilian harm mitigation, the Israeli Government’s claim that the IDF operates a “gold standard” on civilian protection is “misguided” because: “… the gold standard for civilian harm mitigation is not a checklist of steps but rather an iterative process to learn and adapt. Israel has yet to demonstrate that it has embraced this process. More importantly, the data – not just the staggering death toll, but key attributes of the campaign – suggest Israel’s steps are not working.”

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‘Legalising’ Criminal Impunity

US support has created a climate of impunity allowing the IDF to categorise mass violence against Gazan civilians as a ‘legitimate’ strategy to destroy Hamas.

The way in which this has led to an inherently genocidal logic is reflected in a new Israeli Ministry of Foreign Affairs briefing on legal aspects of the conflict in Gaza, published in December 2023.

Set against the background of the Dahiya doctrine, the foreign ministry briefing reveals that the very steps the IDF says it is taking to protect civilian life are being used to justify the disproportionate targeting of them. By defining Israel’s sought-after military advantage at such a high-level – requiring the total obliteration of Hamas capabilities – the obliteration of almost any degree of Palestinian civilian life to achieve this goal can be deemed ‘proportionate’.

The briefing sets out the IDF’s military objectives as follows: “The military advantages that the IDF is seeking include destroying enemy military assets, targeting militants, degrading and denying enemy ability to command and control operations, neutralising underground tunnels and infrastructure used for military purposes, and denying positions (such as sniper, anti-tank and surveillance posts) which endanger IDF ground forces, all of which contribute to the overall objective of securing the release of the hostages and removing Hamas’s capability to attack Israel and its citizens.”

Yet these objectives are so broad and comprehensive, that a proportionality assessment of the permitted civilian casualties incurred in pursuit of them becomes extraordinarily permissive: “LOAC [Law of armed conflict] provides that a proportionality assessment is based on the military commander’s judgement at the time of the attack, not on hindsight: the test is conduct-oriented, not result-oriented.

“As a matter of law, civilian casualties or damage to civilian objects, while tragic, do not of themselves allow for a conclusion in regard to proportionality without an informed assessment of both the expected civilian harm and the military advantage anticipated at the time of the attack.”

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The document is thus able to claim that while Israel “wishes no harm to civilians” and is solely targeting military assets and objectives, since Hamas assets are embedded throughout the civilian population and infrastructure of Gaza, these can all be destroyed in the process of targeting them.

This highlights how carefully crafted legal language is used to conceal the IDF’s intentionality in targeting civilians. However, the document reveals that far from being unintended, the IDF deliberately conflates civilian structures with Hamas combatants to the extent that the deliberate and foreseeable mass destruction of “civilian objects” becomes legitimate: “Given this reprehensible strategy, many ostensibly civilian objects may become legitimate targets, as LOAC prescribes that civilian objects become legitimate military targets when, inter alia, they make an effective contribution to military action by their purpose or use. Moreover, under LOAC, Hamas militants who fail to distinguish themselves from the civilian population are legitimate targets, as are civilians taking direct part in hostilities. As a result, it cannot be concluded from the mere fact that seeming ‘civilians’ or ‘civilian objects’ have been targeted, that an attack was unlawful.”

Legitimising the Partial Destruction of Gazans

Exactly how these pseudo-legal parameters are being interpreted by the IDF in executing its war was clarified in an eye-opening briefing by the Institute for National Security Studies (INSS), published about a week after the 7 October terrorist attack.

Its author is Colonel Pnina Sharvit Baruch, former director of the International Law Department of the IDF’s Military Advocate General (MAG), which advises commanders on the law.

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As Byline Times has previously reported, the INSS – which is the most influential think-tank in Israel among the military establishment – had documented the adoption of the Dahiya doctrine as official IDF policy since 2008.

The new INSS briefing illustrates how the above IDF interpretations of international humanitarian law invert the role of proportionality in the law of armed conflict to justify massive disproportionate targeting of the entirety of Gazan society: “According to the laws of armed conflict, even when attacking a military target, it is forbidden to attack if the collateral damage expected from the attack to civilians and civilian objects is excessive in relation to the military advantage expected from the attack. In view of the enormous threat that Hamas currently poses to Israel, the denial of its military capabilities is expected to give Israel a great security advantage. Without achieving this goal, Hamas will succeed in de facto denying Israel the exercise of its sovereignty in the areas adjacent to the border with the Gaza Strip. In light of this significant military advantage, even if many civilians in Gaza are harmed during the attacks, this is not necessarily excessive incidental damage and therefore would not be disproportionate attacks that are illegal.”

By this standard, due to the purported legitimacy of the military advantage to be obtained by seeking to completely degrade Hamas’ military capabilities – and the existential threat to Israel if this goal fails – the mass destruction of Gazan civilians in the process of achieving this goal can be categorised as “proportionate” even if it is on a huge scale.

In other words, the mere fact that the IDF’s military objective is to destroy Hamas is wielded to deny responsibility for the war’s conduct resulting in what the IDF knows will involve mass destruction of Gazan civilians. Such deliberate mass destruction is not being denied, but simply categorised as ‘proportionate’ against the law of armed conflict.

A Phony Defence

Israel’s key defence is that it is not intending to destroy Gazans, but to destroy Hamas – so what happens to Gazans in the process is therefore not intentional. The mass killings of Gazans is portrayed as tragically incidental to the Israeli military objective of eliminating Hamas. This logic would suggest that the war cannot be construed as falling under the definition of the UN Genocide Convention, which refers to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” including “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.

But this defence fails because the IDF’s military strategies rooted in the Dahiya doctrine show that this supposed distinction in intentionality is specious. 

US President Joe Biden meeting with Israeli Prime Minister Benjamin Netanyahu in Tel Aviv, Israel, in October 2023. Photo: White House/ZUMA Press Wire/ Alamy

According to the Israeli Ministry of Affairs’ own legal brief, IDF military doctrine explicitly calculates the disproportionate destruction of Palestinian civilian life and infrastructure, resulting in the partial physical destruction of the group, as a necessary and inevitable corollary of trying to secure its military advantage.

As indicated by numerous statements from senior IDF figures previously reported by Byline Times (such as IDF advisor Colonel Gabi Siboni or Major General Giora Eiland, an advisor to defence minister Yoav Gallant whose company supplies technology to the IDF for targeting purposes in Gaza), this calculation potentially encompasses the whole of the ‘enemy’ society.

The Dahiya doctrine and its extension to the Israeli operation in Gaza reveals that the destruction of Gazan civilian life is not ‘incidental’ at all to the IDF’s mission, but is an integral feature of its military objective (total defeat of Hamas) – precisely because that objective, by the IDF’s own calculation, cannot be achieved without the comprehensive and indiscriminate destruction of Gazan society and people.

Responsibility for Foreseeable Destruction

Adding to this picture, in 2004 the International Criminal Tribunal on Yugoslavia (ICTY) set a crucial precedent. It clarified that a person can be found guilty of genocide even if they do not have a specific intent to destroy an ethnic or religious group in whole or in part. As long as the person enters a joint criminal enterprise in which genocide is a reasonably foreseeable consequence, they can be found guilty. The comprehensive destruction of Gazan society in breach of international humanitarian law has clearly been a foreseeable consequence of the ongoing IDF operation.

Over the last 16 years, the Dahiya doctrine was institutionalised into standard IDF policy by senior Israeli military leaders who are directly involved in Israel’s operation in Gaza.

Leaked State Department documents examined by Byline Times confirm that this logic of disproportionate violence in Gaza has evolved under the watchful eye of the United States. Through years of US support, coaching, and international cover, the IDF has been empowered to construct a sophisticated legal justification for the Dahiya doctrine’s advocacy of disproportionate violence against Palestinian civilians.

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In the wake of the 7 October terrorist attack, the logic of the Dahiya doctrine has become increasingly radicalised. The greater the perceived existential threat, the greater the degree of collateral damage considered justifiable to eliminate that threat. The Israeli government’s legal constructions around the proportionality of collateral damage against perceived military advantage have thus become increasingly genocidal.

With the Hamas strike seen as representing a potential existential threat to Israel requiring the total annihilation of Hamas as a military objective, these legal constructions calculate that the disproportionate destruction of large sections of Gazan society is entirely ‘proportionate’ to the military advantage being legitimately pursued.

In effect, IDF military doctrine now makes any amount of destruction of Gaza appear ‘proportionate’ to the goal of annihilating Hamas. Far from actually protecting civilians, IDF civilian harm mitigation procedures instead become mechanisms to facilitate the deployment of overwhelming disproportionate force against civilian infrastructure across Gaza, seen by the IDF as operating symbiotically with Hamas.

This also means that the intentionality behind this destruction cannot be denied because it is inherently factored into the IDF’s proportionality calculations and rendered legitimate as an inevitable but regrettable corollary of pursing the military objective of eliminating Hamas. The simple moral mistake here is the false assumption that pursuing a military objective automatically implies that killing civilians in the process is unintentional.

That is why so many senior figures across the Israeli Government have been able to openly articulate the idea that the partial or even total destruction of Gaza is a necessary if perhaps regrettable mechanism to achieve the goal of eliminating Hamas.

Attempting to move Gaza’s wholesale destruction to the realm of collateral damage, however, does not negate its genocidal nature. When that scale of collateral damage entailing the collapse of Gazan society is recognised by the Israeli Government as a direct outcome of the pursuit of military objectives, then this remains an intended outcome of its actions even if it is cast as tragic and regrettable. 

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