Legally Blind: The New York Times’ Muddled View of Law of Armed Conflict

In an investigative piece, “Israel Loosened Its Rules to Bomb Hamas Fighters, Killing Many More Civilians,” The New York Times reports that it found that “Israel severely weakened its system of safeguards meant to protect civilians; adopted flawed methods to find targets and assess the risk of civilian casualties; routinely failed to conduct post-strike reviews of civilian harm or punish officers for wrongdoing; and ignored warnings from within its own ranks and from senior U.S. military officials about these failings.”

The New York Times summed up its findings in a separate article, “Eight Takeaways: How Israel Weakened Civilian Protections When Bombing Hamas Fighters.” While there was actual acknowledgment that Jerusalem has complied with international laws of armed conflict, the Times reverted to type, revealing that their recent investigation found that Israel had “…severely undermined its system of safeguards to make it easier to strike Gaza.”

Critically, the paper fails to mention that following the October 7 massacre, the elevated threat level posed by Hamas provided a legally justifiable reason for Israel to change the way it interprets its rules of engagement. By not acknowledging this point, the December 26 piece displays a remarkable ignorance of the legal doctrine of proportionality regulating the conduct of hostilities.

“Eight Takeaways” claims that the IDF is using “…flawed methods to find targets and assess the risk to civilians.”

But according to the law of armed conflict, as long as an attack is proportionate to the concrete and direct anticipated military gains, any incidental wounding or killing of civilians may not automatically be deemed an unlawful act, subject to individual assessment. 

In other words, The New York Times is working off a false assumption, whereby the number of civilian casualties — potential and actual — between both sides of a conflict should be roughly even in order to not weaken one side’s “civilian protections.”

What Is Proportionality?

But, under the laws of armed conflict, an attack is only considered disproportionate, and therefore illegal, “if the anticipated collateral damage to civilians and civilian objects would be excessive in relation to the military advantage expected from the attack.”

Moreover, what is considered proportionate and legal can evolve based on changing circumstances.

Before October 7, Hamas was considered to be an ongoing security concern that Israel had managed to contain. But the post-October 7 reality is very different. Hamas now represents an existential threat to not only the citizens living in the region near Gaza, but the entire country. And let’s not forget Hamas’ Iranian connection.

Since the threat level is so much greater, Israel is legally justified to operate with more force.

The New York Times really needs better military reviewers. Their recent piece comparing targeting processes in counter-terror operations not in war against post-October 7th declared war military operations shows a major lack of understanding of the law of armed conflict,… pic.twitter.com/TaN6zGYntE

— John Spencer (@SpencerGuard) December 26, 2024

Who’s Really Driving Up the Civilian Casualty Numbers?

It is rich that a piece that includes “civil protections” and “Hamas” in the headline omits the very many ways that Gaza’s long-time rulers have for years embedded themselves and their terrorist command and control centers within the coastal enclave’s civilian population structures – including hospitals, schools, and houses of worship.

Indeed, the weakening of civil protections in Gaza is in no small part the result of the terrorist group’s human shield strategy, which its leaders acknowledge is deliberately intended to lead to elevated civilian deaths, thereby ratcheting international pressure on Israel to agree to a ceasefire that would leave Hamas intact.

Moreover, there is ample evidence that Hamas fighters have posed as medical staff, and journalists, and fought in civilian clothes so as to inflate the civilian death count.

From a legal standpoint as it pertains to armed conflict, Hamas is in violation of the Rule of Distinction, which demands that belligerents and fighters at all times distinguish between civilians and civilian objects on one hand, and combatants and military objectives on the other hand, so as to protect persons not taking part in the conflict.

Evidently, The New York Times was too preoccupied with depicting Israel as seemingly going out of its way to endanger Gaza civilians to note that it is, in fact, Hamas that is in violation of international law.

“Eight Takeaways” implies — by showing how Israel has expanded its list of targets, removed limits on how many civilians can be put at risk each day, used a simplistic risk assessment model, and dropped large, less accurate bombs — that the IDF’s approach to urban warfare is somehow unique.

The New York Times, inadvertently, is absolutely correct. Israel is creating a new standard for urban warfare. And there is a growing body of data to support the claim that the country has developed a way to reduce civilian casualties to historically low levels.

The UN, EU, and other sources estimate that civilians usually account for 80 percent to 90 percent of casualties, or a 1:9 ratio, in modern war. In the 2016-2017 Battle of Mosul, a battle supervised by the US that used the world’s most powerful airpower resources, some 10,000 civilians were killed compared to roughly 4,000 ISIS terrorists.

But with regards to Israel, and given Hamas’ likely inflation of the death count, the figure could be closer to 1 to 1.

The New York Times’ rather sophomoric attempt at legal analysis here is not the result of sloppy journalism. Rather, it is part of a pattern, whereby “findings,” such as those revealed in “Eight Takeaways: How Israel Weakened Civilian Protections When Bombing Hamas Fighters,” somehow dovetail with the talking points of Israel’s most vociferous detractors.

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