How Israeli Lawyers Vet Bombing Targets

This past week, I was in Israel with a group of lawyers from the US, Canada, Bulgaria, and Latvia on a trip sponsored by the nonpartisan Center for Jewish Impact. CJI's general goal is to serve as a conduit between the Israeli private sector and domestic and foreign governments, but it has also run this trip and one before it to give interested "legal elites" more insight into the post-10/7 political and military landscape in Israel. I will probably have more to say about the trip later, but for now I thought I would share what I learned from a presentation from an Israeli military lawyer.

I have heard countless times since 10/7 that Israel has bombed Gaza "indiscriminately" or as "revenge." In fact, every single target has to be approved by Israeli military lawyers, who vet the target to ensure that it meets the international law standards for proportionality.

Several things stand out about how Israel approaches this matter. First, the military lawyers don't just give general advice about proportionality and then let the commanders in the field decide how to stay within its constraints. As noted, they literally vet every target, except of course when ground forces are under direct attack and need to call in immediate air support. Even then, local commanders are obligated, if time allows, to get approval from higher-ups who have more training in international law.

Second, Israel's military lawyers, unlike the US's lawyers, report only to other military lawyers, not to the general chain of command, so they can't be pressured by commanders who find the rules of engagement problematic or excessive.

Third, Israel's rules of engagement are stricter than NATO's. Israel can afford to be so strict because it has such a strong military advantage over Hamas. Otherwise, many of the rules that Israel's military lawyers require, so as making phone calls and dropping leaflets to warn residents to flee in advance of Israeli military action would be suicidal, given that Israel thus gives up the element of surprise. Relatedly, having spoken to other Israeli military lawyers over the years, it's clear that they believe that their mission is not simply to get the IDF to obey international law, but to so exceed international law that even  international tribunals that are highly biased against Israel will have a difficult time claiming systematic war crimes by the IDF.

That said, I recognize an obvious constraint on the lawyers' ability to ensure that the military complies with the rules. Local commanders can falsely claim exigency to avoid the process. Unless a commander does so consistently and somewhat egregiously, it's unlikely he will be caught. But there is no military in the world that has figured out how to ensure 100% compliance with the rules of engagement. (On a related note, I was curious what percentage of soldiers in a typical conflict engage in illegal actions. According to academic papers on the subject, about 8-10% of soldiers in a Western army will do something illegal during a war, and 1-3% will engage in serious illegal conduct. Even if Israel managed to cut those figures by 75%, with 200K soldiers serving in Gaza, that leaves room for a great deal of illegal conduct.)

In any event, the military lawyer who spoke to us provided a slide, translated from the Hebrew, showing the complex process required for approving an air strike.

The obvious question that may come to mind is that if the targeting is so precise, why has there been so much destruction of Gaza's infrastructure. And the answer is that Hamas's vast tunnel network had entrances and exits just everywhere, and Israeli ground forces couldn't operate safely if Hamas combatants could pop out of a tunnel any time, any place. So the tunnels had to be neutralized, and the only way to neutralize a tunnel below ground was first destroy the building on top of it. Hamas's use of civilian infrastructure in this manner was both immoral and illegal, and promising solutions like flooding the tunnels were ultimately untenable.

Comments

[Krenn]

Call me crazy, but if Israeli lawyers KNOW that they're demanding mitigation efforts in excess of what the law requires, but they get away with doing it ANYWAY, at the direction of their bespoke lawyer-only chain-of-command, that rises some serious legal issues about who's 'really' in charge of the military chain of command, there.

From a certain point of view, 'forcing' your client to do more than he actually needs to do, because it will better accord with your policies as his lawyer, but not with anyone else's policies, seems like it should be some sort of crime or disbarment offense.

[Rossami]

Why? They are doing so at the direction of the civilian leadership of the country. In US legal ethics terms, it's a question of who your client really is - the Israeli military or the Israeli government.

[Krenn]

Are they? Israel is famous for really insulating it's governmental or military lawyers, and Netanyahu and his cabinet have been on an anti-government-lawyer crusade for a long time now. I have serious doubts that either Netanyahu as PM or the Israeli Minister for Defense actually told Army Lawyers to do this.

[John 4]

“Yeah, we blow up a lot of civilians in these buildings, but think of the tunnels!”

Come on, man. This is ghoulish.

[David Bernstein]

The process requires an assessment of how many civilians may be killed, and the lawyers often require them to get the building evacuated or sometimes to call of the proposed strike. Yes, some civilians will be killed regardless. Saying "you can't fight a war in an urban environment used by terrorists if civilians will be killed" means (a) that you can't fight a war which means (b) you are giving militaries every incentive to embed themselves in civilian areas, to dissuade the other side from attacking. Of course, once a country's survival is at stake (as Israel's was post-10/7), it will attack regardless, causing more civilian harm than if you didn't come up with the ridiculous "no civilians get harmed" standard to begin with. Meanwhile, what would have been your strategy to neutralize the tunnels?

[Vryedni]

Saying Israel's survival was at stake post-10/7 is the equally implausible flip side to accusing Israel of genocide.

[Internet sloth]

3% of gaza's population has been killed, which is less than 100%, but still a lot. Maybe genocide in gaza is mostly implausible, but it is not 0% plausible.

[Internet sloth]

By way of comparison, less than 2% of iraq's population was killed in the us-iraq war, where estimates vary widely.

While 2% in iraq vs 3% in gaza are not that different numbers, it would still suggest that a greater amount of brutality has occurred in gaza than iraq.

[Internet sloth]

Can't they block the entrances?

[David Bernstein]

Put another way "don't take that hill, don't take that bridge, don't take the high ground, don't cross that river, etc, civilians may be killed" is not the way anyone fights a war, nor could they.

[John 4]

“Don’t destroy 91% of homes” seems significantly different?

[Social Justice is neither]

How about don't place your military logistics and command under civilians intentionally. Intentionally putting your own civilians in harms way is fucking evil. But apparently evil is perfectly acceptable to you.

[Incunabulum]

Literally no other country, including the US, pits much thought at all in about collateral damage to noncombatants.

When the enemy builds its forces into the civilian infrastructure it's because they expect the civilian infrastructure to take a hit.

The US calls it 'counter-value' and we have plans to destroy whole cities even without military forces in them solely as retaliation.

But sure, Israel is uniquely bad.

[Alan Vanneman]

According to Statista, as summarized by Copilot

• Around 70% of all structures in Gaza have been destroyed or damaged since October 2023.
• 92% of housing stock is damaged or destroyed, leaving most households uninhabitable.
• The road network, commercial/industrial facilities, and schools have also suffered widespread destruction.
Healthcare Collapse
• Over half of medical facilities are closed.
• Those still operating (hospitals, field hospitals, primary care centers) are only partially functional.
• This has severely limited the ability to treat war-related injuries and preventable conditions.
Water & Agriculture
• 58% of households face water insecurity and report worsening water quality.
• Croplands, agricultural wells, and greenhouses have been heavily damaged.
• Gaza’s fishing fleet has been destroyed, further undermining food security.
•
Education
• A large share of schools have been destroyed or severely damaged, disrupting education for children.
Humanitarian Impact
• As of June 2025, at least 55,000 Gazans killed directly by conflict-related trauma.
• Infrastructure destruction has contributed to thousands more preventable deaths due to lack of housing, healthcare, food, and clean water.
• The situation is described as one of the largest man-made humanitarian disasters in recent decades.

[David Bernstein]

All because Hamas started a war and refused to surrender even long after it became clear that it could not hope to win a military victory. But it was clever enough to understand that the more devastation it invited by entrenching itself ever deeper within population centers, the more it could count on rubes to blame Israel, regardless of what Israel did. Consider the stats you just recounted (even allowing for the fact that casualty stats always ultimately come from Hamas's "Ministry of Health"). If Israel hadn't taken all sorts of precautionary measures plus facilitated humanitarian aid despite Hamas being a huge beneficiary of the aid, that level of physical destruction would have led to at least ten times the number of deaths.

[Estragon]

Everyone always talks about the 55k we killed, rather than the 550k we didn’t. So unfair!

[David Bernstein]

Actually, what's unfair is that you don't differentiate between civilians and combatants, rely on Hamas statistics for the figures to begin with, and hold Israel to entirely unrealistic standards that no military in the world could meet. But in terms of both international law and morality, yes it absolutely matters that Israel could have inflicted much greater death on the Palestinians but chose not to, even though this put its own soldiers at greater risk--Israel could have entirely leveled Gaza from the air and not suffered hundreds of death and thousands of serious injuries.

[Estragon]

“you don't differentiate”

I’m going off your numbers from above.

“Consider the [55k] you just recounted…

would have led to at least ten times the number of deaths.“

[David Bernstein]

Those weren't my numbers.

[Estragon]

You disputed the 55k number, but then used it as your baseline for asserting that IDF could have killed 10x (at least!) more people, 550k, had they not been such outstanding humanitarians.

[David Bernstein]

Saying that if Israel hadn't taken precautions, easily 550K people would have been killed in Gaza, 10X Hamas claim, is not endorsing the original claim.

[Swede425]

Wow.
Looks like Hamas should have surrendered.
Seems they don't care about any of that.
Weird.

[Roger S]

Yes, Hamas should have surrendered. That is the most astounding part of this story. Hamas continued to fight a hopeless war.

[David Bernstein]

And I think it's one reason that the IDF made what seem in retrospect some baffling or counterproductive strategic choices, eg withdrawing from territory cleared of terrorists and then having to go back in, sometimes more than once. They seemed to have expected that once Hamas was clearly defeated, they would be willing to surrender and take safe passage elsewhere like the PLO in 1983 in Beirut, like rational people would do. Not the first time the IDF misjudged Hamas's rationality.

[Stupid Government Tricks]

Let me fix that last point of yours:

• The situation is described as one of the largest man Hamas-made humanitarian disasters in recent decades.

[SJKofNJ]

"Man-made." Yes, by the men of Hamas. Hamas started the war, built the tunnels from which they fought under civilian structures, and explicitly stated that they wanted as many civilian casualties as possible to generate international pressure against Israel. And don't forget that the war would have stopped immediately if Hamas agreed to release all of the hostages, both the living and those Hamas had murdered, and lay down its arms.

[Riva]

It's called war. And if you don't want to suffer the consequences of a a war, you probably shouldn't start one.

And by the way, I suspect your Statista summarized by Copilot relies on casualty numbers provided by the Gaza Ministry of Health. They're no more reliable than the trolls wallowing here.

[Please, Daivd, Seek Help]

Isn't there some tension between "the bombing is not indiscriminate" and "the bombing is indiscriminate but it's Hamas' fault that the entire territory is effectively a military base"?

This maybe speaks as a broader rebuttal to the piece -- the critics you are responding to already know that the Israeli military is bureaucratized; they just disagree that bureaucratic process absolves responsibility for outcomes when the outcomes are so devastating.

[David Bernstein]

Devastating outcomes from a war fought in urban territory against an enemy that entrenches itself in said territory and cares not a whit about its civilian population? Who'd have thunk it! What they really want is for Israel to not have fought the war, and they dress up that desire in worse-than-dubious legal and moral claims. My evidence: if you challenge critics to explain how *they* would have fought the war to their own satisfaction, their *only* response is that Israel should have agreed to an (unfavorable) cease-fire much earlier. That, again, is ultimately an argument against pursuing the war, not how it was pursued.

[Martinned2]

So what you're telling me is that the IDF didn't kill tens of thousands of civilians by accident, but that it killed tens of thousands of civilians after careful deliberation? And that's somehow better?

[Estragon]

They could have killed 10x more, you see, so actually they should get a lot of credit!

[Drewski]

Even Hamas isn't claiming tens of thousands of civilians. Congratulations, you hold more extreme beliefs than Hamas and win the "I hate Jews" competition this week.

[David Bernstein]

I'll give you the challenge I noted above: "if you challenge critics to explain how *they* would have fought the war to their own satisfaction..." You, Martin, run the IDF. How would you have fought the war differently? And if you give the copout that you would have agreed to some much less favorable ceasefire earlier, just note that this is not a legitimate answer to the question.

[Roger S]

I do not think that I would have let lawyers call the shots.

[Reallynotbob]

"Tell me how you would have done it differently, so long as it's not one I don't accept."

The problem I see is that your phrase, "pop out of a tunnel, any time, any place," is carrying a lot of ethical water. Switch the hypothetical. A country fights the USA. That military realizes USA civilians can "pull out one of our millions of guns, any time, any place," and therefore all civilian structures are now military targets. That would violate the laws of war and would be unethical.

There are orthogonal approaches to the "tunnel" problem, e.g. soft power strategies, investment carrots, decapitation strikes, etc. Israel historically has not really leaned into those. (And the PLO/Hamas have certainly been difficult negotiating partners.) So when a grotesque attack like October 7 happens and the military has to frame the objective as "guarantee safety immediately," options shrink and unethical plans seem like fair ideas.

[David Bernstein]

That military realizes USA civilians can "pull out one of our millions of guns, any time, any place," and therefore all civilian structures are now military targets. That would violate the laws of war and would be unethical.

UMM, that's because these are *civilians.* We aren't talking about Gazan civilians popping out of the tunnels, we are talking about Hamas combatants. In fact, Hamas did not let non-combatants use the tunnels, even for shelter from military operations.

[Incunabulum]

Except we actually target civilian infrastructure already when someone pops out with a gun. How many buildings in Iraq do you think we flattened with artillery because some squad die got shot at from a window.

You are holding Israel to a standard no other country even pretends to hold.

[jb]

Other comments get at this as well, but the thing I was wondering about until I got to the last paragraph was: what fraction of proposed targets does this scrutiny actually reject? Because if the answer is "none" or close to none, then it seems like the process is just pageantry rather than a real check on illegal bombing. In the US, an obvious analogy is the FISA court, which seems to have served as nothing but a rubber stamp for the requests put before it.

And of course, the last paragraph of Professor Bernstein's post makes it clear this is exactly what happening: if you can justify blowing up any possible building because of the tunnel network, then this whole process is nothing more than a lawyer employment program rather than a meaningful check on the military. The thing sounds good in theory, but when you look at the actual results it's obvious that it's not doing anything to mitigate harm.

[Stupid Government Tricks]

And why are you not curious about Hamas' procedures? I imagine theirs is pretty much the opposite: the fewer military and the more civilians in the target area, the better.

[jb]

I'm pretty sure that Hamas tries to choose targets based on how to maximize the number of civilians they can kill, and no lawyers are involved. On the other hand, not sure why you think that's interesting, unless you think that Israel is also a terrorist organization.

[Social Justice is neither]

Fact is your argument absolves Hamas of their responsibility and directs it onto Israel.

[jb]

That's dumb. As an analogy: in the US, we all agree that murders are bad, but that doesn't mean the police are allowed to torture their friends and family to find out where they are so they can catch them. Sure, the murderer could just turn themselves in, but that argument doesn't shift responsibility for the torture away from the police to the murderer.

Hamas is responsible for the bad things they do, and Israel is responsible for the bad stuff that it does, even if it's in response to Hamas's atrocities.

[David Bernstein]

I don't have a figure, but they certainly cancel some. You can even watch videos of strikes in progress that are called off at the last moment because children suddenly appear in the vicinity, or because it becomes apparent that there are civilians in an area that was thought to be clear.

[jb]

The FISA court rejected something like 2% of the requests before it, so it's definitely possible to reject the occasional case while still being a rubber stamp.

I guess it's good that they don't intentionally bomb little kids when they're on video, but that seems like a very, very low standard to operate under. (It could be worse, I guess; the kids could be on a boat in the Atlantic.)

[Estragon]

One also questions whether any unwanted or inconvenient advice from these lawyers would be followed, or indeed even considered, before being brushed aside. Like, for example, the notion that soldiers who rape detainees should face discipline.

[David Bernstein]

The military (or anyone else, given Israel's ridiculous lack of standing rules) can appeal directly to the Supreme Court if the IDF brass isn't cooperative, and because the lawyers don't report to the brass, there is no one to stop them from doing so, and the brass knows it. (And while it's gradually changing, Israeli generals have and still do lean left politically, and have been the leading advocates of policies regarding captured terrorists in the past that would strike most observers as absurdly lenient.)

[David Nieporent]

Because if the answer is "none" or close to none, then it seems like the process is just pageantry rather than a real check on illegal bombing. In the US, an obvious analogy is the FISA court, which seems to have served as nothing but a rubber stamp for the requests put before it.

If there is an intersection with a traffic signal, and virtually nobody is ever ticketed for running a red light at that intersection, do you conclude:

a) The light is just for show and people ignore it with impunity; or
b) People almost always obey the light, and so there's rarely a need to ticket people?

[Krenn]

Note that there are also two very different definitions of what "proportionality" means, and different countries have been drifting away from each other on that subject for a very long time.

One definition is that the weapons you use against a target must be proportional to the target you have reasonably selected.

The other definition is that the suffering you inflict in or near the target to relative 'innocents' must be 'proportional' to the military advantage you gain from destroying the target.

Those are two VERY different definitions, and Israel in particular really needs to do a better job of defining which definition it thinks is contained in the treaties Israel has actually signed.

In the first version, "weapon proportional to the target", it basically goes like this:

"This building has a tunnel entrance underneath it. I need to destroy the building to destroy the tunnel entrance. Does anyone know how big a bomb it will take to destroy a building of this size?
'About a thousand lbs'
'two five-hundred lbs ok? that's what the nearest fighter is carrying.'
'yeah, sure.'

In this version, as long as you don't start throwing 20,000 lb MOABs at urban buildings which only 'need' 1,000 lbs of ordinance to destroy, you're being 'proportional'. The question of who else is in that building when the bombs fall is someone elses problem; you did your job by selecting the smallest bomb that would do the job.

The other definition of 'proportional' is based more on counting lives and property damage. in that version, the discussion goes more like this:

"Ok, I'm pretty sure this secret tunnel entrance can support an ambush by a 10-man Hamas Squad, which would seriously inconvenience a 50-man Israeli platoon if it attacked them in the rear. Anyone know what the going rate is on saving an Israeli platoon from seriously dangerous hypothetical inconvenience this month?"
'It's about 10 dead suicidally stubborn civilians to 1 hypothetically wounded Israeli soldier, or 5 dead civilian relatives to 1 harbored hamas soldier killed in a bombing run while refusing to wear a uniform or stay away from civilians. This month.'
'Yeah, the building has too many inhabitants then, I'll have to schedule a bunch of measures to warn them to leave before I authorize bombing this building.'

For obvious reasons, those are two VERY different definitions of how 'proportionality' works. And the arguments over which one to use have been getting increasingly ugly for the last 50 years. It doesn't help that a lot of people, including a lot of military lawyers, don't even realize that there ARE two different definitions that different people might be using. It's not like these sorts of cases routinely go to trial where different witnesses can be hammered about different definitions while under cross.

[Rossami]

No military does what you're describing as the "first version" of proportionality except when you're trying to conserve troops and ammunition (which has been a standard military concern since the invention of warfare). But that's how we talk about it - conserving resources, not "proportionality".

Every military that worries about the international law defintion of proportionality uses what you're describing as the "second version" (though none of them think about it in the unsophisticated way you posit). "Proportionality" is always and only about balancing the violence of your response to the risk and military objectives.

[Krenn]

The US military does that all the time. That's why we don't fight minor wars using nuclear weapons, and why we only used a MOAB one time to destroy a very rural tunnel complex during twenty years of war in Afghanistan, and why we signed treaties about no longer fire-bombing entire cities to knock out one ball-bearing factory, and a lot of other things. The principle of "don't engage in egregious overkill just to create bragging rights or because you're lazy." is actually a surprisingly relevant lesson that actually needed to be written down following WWII.

[David Bernstein]

The answer as far as Israel's legal doctrine is concerned is *both*. Primarily, "the suffering you inflict in or near the target to relative 'innocents' must be 'proportional' to the military advantage you gain from destroying the target." But according to Israeli military lawyers, this is done on a case-by-case basis, there is no fixed formula. I understand the US JAG does have such a formula, something like 25 civilians are OK for on top terrorist commander. Honestly, the proportionality standard is so vague and ultimately subjective that I don't see how you can ever prove a country that makes any sort of good-faith effort to comply violated it.

[Bob from Ohio]

Good effort but as one can see from Estrogen and our Dutch friend, the IDF can do nothing right.

Hamas stated the war by killing hundreds of civilians without mercy and then used the Arab population as human shields when a decent military would have surrendered. That's ok with Estrogen and our Dutch friend though.

[Alpheus W Drinkwater]

You simply can't resist responding to ANY criticism of the Israeli government and the IDF with "You support Hamas" or "You're an antisemite." It's boring and stupid. If we all stipulate that Hamas is a terrorist death cult and its leaders should be eradicated for the good of mankind, could you all stop with the idiotic responses?

[John F. Carr]

There is no guarantee that a hypothetical war crimes tribunal will agree with Israel's lawyers on the permissible civilian-to-target ratio. A tribunal is unlikely while Republicans are in charge in Washington. The most likely outcome, in my opinion, is a John Yoo situation. Lots of people disapprove of Yoo's permissible torture-to-information ratio. He still has tenure.

[David Bernstein]

Under relevant international law and treaties, there is only supposed to be an international tribunal if the country in question is incapable of or refuses to investigate its own forces, which is not true w/r/t Israel. The ICC and ICJ cases against Israel, if allowed to proceed, will themselves be violations of international law--not that this has stopped the ICC before, Israel, not being a signator, and Hamas or the PA, not being a state to begin with, should mean zero jurisdiction over Israel, yet the ICC has heard cases anyway.

[John F. Carr]

Like the U.S. Supreme Court, the ICC is right because there is no appeal.

[nicmart]

Thank goodness Bernstein has a venue for his pro-Israel views in Reason. It's up there with putting Sally Satel — one of the most renowned drug warriors — on the cover, and doing a feature interview with her in another issue. But most readers aren't old enough to remember when there were principled libertarian publications and intellectuals not dependent on paymasters. You can count on one hand important libertarians today who are off the reservation. Bryan Caplan is one, Sheldon Richman another. Who else?

[gormadoc]

VC is just hosted by Reason. It's not part of it and most of the bloggers don't claim to be libertarians.

[David Bernstein]

Real libertarians, of course, support genocidal Islamist terrorist dictatorships.

[Y. Shiloh]

Sorry, but this kind of gaslighting just doesn't work anymore, not when there are so many eyewitness testimonies from individuals such as American physicians in Gaza and Israeli soldiers themselves who have witnessed and/or participated in the routine, deliberate targeting of civilians, including, but not limited to, children.

The results of just a few search terms will put paid to this piece:

1) Drs. Mark Perlmutter Mads Gilbert deliberate targeting
2) Breaking Ranks ITV documentary soldier testimony
3) IDF database says 83% of Gaza deaths civilian

This is just a short list. Moreover, David is either oblivious to the fact that the IDF itself has determined the Gaza Health Ministry's fatality counts to be largely accurate or he's deliberately hiding this fact.

No, David. Israel is, in fact, engaged in war crimes and genocide. Every reputable human rights organization affirms it, including Israel's own B'Tselem.

Shame on you for running interference for them.

[David Bernstein]

Just for example, there is no "IDF database" that says any such thing.

[Y. Shiloh]

Entering 'IDF database says 83% of Gaza deaths civilian', I received verifiable results from:

Brown University, The Guardian, and +972 Magazine, the last of which is Israeli.

The Guardian article states, "Figures from classified IDF database listed 8,900 named fighters as dead or probably dead in May, as overall death toll reached 53,000."

It goes on:

"The Israeli military did not dispute the existence of the database or dispute the data on Hamas and PIJ deaths when approached for comment by Local Call and +972 Magazine."

[musicbob]

I think Noam Chomsky's reply (brief clip below, only about a minute or two) to this MIT student's question addresses just about every reply-comment that this article's author (Bernstein) brings up, about so-called "human shields" (the author seems to be coming at this from the exact same angle as the MIT student).

Chomsky's reply makes perfect sense...

https://www.youtube.com/watch?v=FvoUJgzSKYg