Legal Questions Answered and Unanswered in Israel’s Air War in Gaza

Garlasco criticizes several aspects of Tischler’s statement, focusing especially on the IAF’s choice of weapons.

The general then directly addresses weaponeering—the process of choosing the right weapon to destroy a lawful target while minimizing civilian harm—a planning principle he calls “[s]electing the right munitions to minimize collateral damage.” He notes, “This allows us to accurately strike Hamas even though it operates within civilian areas.” The general’s statement on weaponeering is refuted by the facts on the ground. Time and again the IAF has used its largest, most destructive weapons in densely packed civilian areas where the resulting harm should be predictable, instead of using low-collateral-damage weapons, thousands of which the United States has supplied to Israel. When a military develops a target, it conducts a collateral damage estimate (CDE) to determine the anticipated level of civilian deaths. Either Israeli CDEs are woefully broken or Israel’s tolerance of civilian harm is far greater than what militaries like the United States’ would accept. 

But don’t just take it from me—an IDF investigation reached the same conclusion about its poor weapon choice. A day after Tischler’s statement on Israel’s operational choices, the IDF released the results of an internal investigation of a Christmas Eve strike on the Maghazi refugee camp that killed 70 Palestinian civilians. The investigation showed the wrong weapon was used in the attack, resulting in avoidable civilian harm and collateral damage. This investigation and public admission are important accountability mechanisms. One aspect of military accountability is the need to recognize when operations fail to meet legal or ethical standards, determine the causes of those failures, and institute corrective actions so they don’t happen again. Time will tell if this happens with Israel’s weapon choices, but I strongly disagree that weaponeering has been a strong point in this conflict.


Tischler gets specific on Israel’s weaponeering, defending the use of unguided or, as he puts it, “dumb bombs,” as well as defending the use of weapons with wide-area effects. This gets at the heart of President Biden’s criticism of Israel’s “indiscriminate bombing” of Gaza. The law of armed conflict requires bombs to hit military objects. Precision weapons help them do that—a GPS-guided bomb Israel uses has about a 5-meter margin of error. Unguided bombs can miss by up to 30 meters, increasing the chance of hitting civilians and for use in an indiscriminate attack. But missing the mark isn’t the only danger here—bombs may hit accurately but result in a very wide-ranging blast and fragmentation. They might destroy their target, but depending on how they are used they may have indiscriminate effects, encompassing homes and other civilian objects. Israel is doing both—using unguided bombs and bombs with wide-area effects, the kind that can level a city block. 

Even though Tischler defends the IAF’s use of unguided munitions by claiming that “[t]hese are standard munitions that are regularly used by militaries worldwide,” Western militaries have largely turned away from unguided weapons. In Iraq in 1991, only about 6 percent of all bombs dropped were precision guided. By the Libyan civil war in 2011, every bomb NATO dropped was guided. That is a sea change. However, not everyone does this. For example, some 95 percent of all aerial munitions Russia has used in Syria are unguided. The general further defends the use of unguided bombs by saying they can still target accurately. He is right. Thirty meters is far more accurate than what the U.S. military did in Vietnam with carpet bombing. But can they target accurately enough to be lawful in a dense area like Gaza? If you miss by 5 meters, the Hamas commander is probably still dead. If you miss by 30 meters, you might hit a home full of civilians. Looking at the historical use rates of precision weapons and how Israel is so well supplied by the United States with precision munitions, I am shocked Tischler would defend the IAF’s use of unguided bombs. When Russia hits Ukraine with unguided bombs, the world yells “war crimes.” I think we should be similarly aghast at Israel’s use of such weapons in a city. 

When it comes to wide-area effects, the general provides a better answer and one I think has merit: Most of the heavy munitions they use in Gaza have delayed fuzing, which makes them detonate underground. This has the effect of trapping the blast and fragmentation underground, so it won’t hit civilian areas. This is another “best practice” of civilian harm mitigation. The bigger issue is scale—Israel has dropped over 29,000 bombs in Gaza, and even the use of delayed fuzing will still level homes, as was seen in the Jabalia strike. 

Garlasco concludes:

The explanation of these principles is instructive, but the bigger—and unaddressed—issue is how the IAF is assessing proportionality, which is the amount of civilian harm acceptable for a military target. To date, that appears to be heavily skewed to a point where Israel will accept extreme levels of civilian harm for questionable military value. If I could ask Tischler one question, it would be to explain how the IDF assesses proportionality in strikes. In Iraq in 2003, for example, the targeting of Saddam Hussein was allowed if 30 or fewer civilians might be killed. Saddam was clearly a lawful target of the highest value due to his status as head of Iraq’s military. In Gaza, we are seeing over a hundred civilians killed in strikes on mid-level Hamas leaders, raising questions on the lawfulness of the IAF’s approach to proportionality. 

Gen. Tischler’s statement—the first such statement from the IDF—is welcome, and I hope Israel makes more of these. The source of the criticism of Israel’s air war in Gaza is a desire to see all parties comply with the law, protect civilians, free the hostages, and end this conflict. I recognize Hamas is not a lawful actor. Hamas uses Palestinian civilians as shields and has committed unspeakable war crimes. Israel has a right to defend itself, but that right isn’t unlimited. The IDF says it upholds international humanitarian law, but it’s hard to see how the conduct of the air campaign in Gaza is lawful.