AI Distinction Proportionality IHL in Gaza

As civilians become more familiar with online applications of Artificial Intelligence (AI) in gathering information and preparing reports, it is important to consider the ethical and strategic use of AI in the warfare in Gaza.

AI and impact on death in Gaza

Military applications of AI include PID (positive identification) and prediction of weapons effects. International Humanitarian Law (IHL) requires military forces to apply distinction between civilians, civilian infrastructure and military targets and to take action to avoid civilian attack, injury, and death. Overall battlefield awareness applications of AI allow prediction of the effects of weapons systems and permits the choice of weapon that is proportional to the required military objective. 

John G. Thorne, Lt Col, USAF, has authored a paper, Warriors and War Algorithms: Leveraging Artificial Intelligence to Enable Ethical Targeting as a component of a course in Ethics and Emerging Military Technology at Naval War College, Newport, RI

The Department of Defense’s (DoD) primary form of Distinction is through Positive Identification (PID) PID is defined as “the reasonable certainty that a functionally and geospatially defined object of attack is a legitimate military target in accordance with the Law of War and applicable Rules Of Engagement.” More simply, it answers the Who?, What?, and Where? questions regarding an entity. PID is also acknowledged as the foundational consideration in the DoD’s collateral damage methodology, which its Proportionality assessments are based on. It states that an assessment begins with the question, “Can I PID the object I want to affect?” While PID can technically be achieved through a combination of different intelligence sources, invariably a visual component is required in the final analysis. Therefore, the most commonly known algorithms associated with PID are related to imagery interpretation.

The DoD’s Joint Technical Coordinating Group for Munitions Effectiveness (JTCG/ME) provides software that models the accuracy and explosive yield of warhead, guidance, and fusing combinations found in the Joint Munitions Effectiveness Manuals (JMEM). It also provides vulnerability data for potential targets, based on their size and construction. The JMEM software allows the human analyst to create a specific engagement scenario by manually selecting a warhead, guidance system, fuse combination, and target characteristics. The JMEM algorithm then analyzes hundreds to thousands of iterations of that scenario, usually leveraging a Monte Carlo method, to determine a probable level of damage that scenario would create. (Thorne, n.d., #)

Yuval Abraham, a journalist and filmmaker based in Jerusalem, in an article for +972 magazine, in partnership with Local Call, reports that the Israeli army has marked tens of thousands of Gazans as suspects for assassination, using an AI targeting system with little human oversight and a permissive policy for casualties.

A new investigation by +972 Magazine and Local Call reveals that the Israeli army has developed an artificial intelligence-based program known as “Lavender.” 

Formally, the Lavender system is designed to mark all suspected operatives in the military wings of Hamas and Palestinian Islamic Jihad (PIJ), including low-ranking ones, as potential bombing targets. The sources told +972 and Local Call that, during the first weeks of the war, the army almost completely relied on Lavender, which clocked as many as 37,000 Palestinians as suspected militants — and their homes — for possible air strikes.

“We were not interested in killing [Hamas] operatives only when they were in a military building or engaged in a military activity,” A., an intelligence officer, told +972 and Local Call. “On the contrary, the IDF bombed them in homes without hesitation, as a first option. It’s much easier to bomb a family’s home. The system is built to look for them in these situations.”

The Lavender machine joins another AI system, “The Gospel,” about which information was revealed in a previous investigation by +972 and Local Call in November 2023, as well as in the Israeli military’s own publications. A fundamental difference between the two systems is in the definition of the target: whereas The Gospel marks buildings and structures that the army claims militants operate from, Lavender marks people — and puts them on a kill list.

In addition, according to the sources, when it came to targeting alleged junior militants marked by Lavender, the army preferred to only use unguided missiles, commonly known as “dumb” bombs (in contrast to “smart” precision bombs), which can destroy entire buildings on top of their occupants and cause significant casualties. “You don’t want to waste expensive bombs on unimportant people — it’s very expensive for the country and there’s a shortage [of those bombs],” said C., one of the intelligence officers. Another source said that they had personally authorized the bombing of “hundreds” of private homes of alleged junior operatives marked by Lavender, with many of these attacks killing civilians and entire families as “collateral damage.”

B., a senior officer who used Lavender, echoed to +972 and Local Call that in the current war, officers were not required to independently review the AI system’s assessments, in order to save time and enable the mass production of human targets without hindrances.

“Everything was statistical, everything was neat — it was very dry,” B. said. He noted that this lack of supervision was permitted despite internal checks showing that Lavender’s calculations were considered accurate only 90 percent of the time; in other words, it was known in advance that 10 percent of the human targets slated for assassination were not members of the Hamas military wing at all. (Abraham, n.d.)

Burak Elmali in an article posted to the Anadolu Agency (AA) web site notes that  Israel’s use of advanced software tools underscores a harrowing reality: AI, when misapplied, can facilitate atrocities of catastrophic proportions The TRT World Research Centre reports that the conduct of warfare is among the many domains influenced by AI, and the latter’s impact on this field is no longer theoretical. Gaza is a case in point. This evolution prompts profound questions about human agency and responsibility within AI debates. What if the person wielding the technological prowess harbours a militaristic ideology so extreme that it sanctions genocidal actions?

Over a period exceeding six months, Israel has conducted airstrikes with indiscriminate genocidal intent, as revealed through the candid admissions of numerous military intelligence insiders. Their confession-like statements about Israel’s use of advanced software tools, such as Lavender and Where’s Daddy, underscores a harrowing reality: AI, when misapplied, can facilitate atrocities of catastrophic proportions, and turn out to be as inhumane as possible.

The Israeli Defence Ministry’s communication often follows the path of censorship, obfuscation, and deflection tactics. This time was no different. The spokesperson dismissed the accusations with a mere denial. Yet, the stark reality reflected in the civilian death toll leaves little room to ignore the assertions made about the AI-driven genocidal undertaking attributed to Lavender. The algorithm used indicated the acceptance of 15-20 civilian casualties for one low-ranking Hamas member and up to 100 for one senior Hamas member. 

Such robotisation of inhumanity is very disturbing. Alas, the figures are aligned with the reported death tolls in Gaza. Furthermore, the use of unguided bombs, which cause enormous devastation in heavily populated areas in scenarios involving unconfirmed junior Hamas members, suggests that Israel is conducting more war crimes, this time pretexting the use of AI. (Elmalı & Kilavuz, 2024)

The Military Forces of Israel have access to very sophisticated AI supported tools, similar to those of the United States, that not only permit, but require, the strictest application of International Humanitarian Law in the areas of distinction and proportionality. Failure to do so exposes Israeli authorities to war crime accusations and further isolation from traditional allies in Western Democracies.

References

Abraham, Y. (2024, April 3). 'Lavender': The AI machine directing Israel's bombing spree in Gaza. +972 Magazine. Retrieved May 28, 2024, from https://www.972mag.com/lavender-ai-israeli-army-gaza/ 

Elmalı, B., & Kilavuz, İ. F. (2024, May 1). Israel Has Tainted AI with Genocide – TRT World Research Centre. TRT World Research Centre. Retrieved May 17, 2024, from https://researchcentre.trtworld.com/perspectives/israel-has-tainted-ai-with-genocide/ 

Thorne, J. G. (n.d.). Warriors and War Algorithms: Leveraging Artificial Intelligence to Enable Ethical Targeting. Ethics and Emerging Military Technology Graduate Certificate. https://apps.dtic.mil/sti/trecms/pdf/AD1181382.pdf 

Next US President and Relationship to Israel

Dahlia Scheindlin, a pollster, a Policy Fellow at Century International, and a columnist at Haaretz, reports on how Gaza has accelerated the social and political forces driving America and Israel apart.

Secretary of State Antony Blinken and President Joe Biden meeting with Israeli Prime Minister Benjamin Netanyahu and other Israeli officials, Tel Aviv, October 2023

On May 8, 2024, the Biden administration confirmed that it was withholding a major weapons shipment to the Israel Defense Forces. It was the biggest step that the United States has taken in decades to restrain Israel’s actions. The decision concerned a consignment of 2,000-pound bombs—weapons that the United States generally avoids in urban warfare, and which White House officials believed that Israel would use in its Rafah operation in the Gaza Strip—and did not affect other weapons transfers. Nonetheless, the administration’s willingness to employ measures that could materially constrain Israel’s behavior reflected its growing frustration with Israel’s nearly eight-month-old war in Gaza.

Washington prides itself on its tradition of bipartisan support for Israel, but in reality a partisan gap has been growing for years. Many Democratic voters, and younger Americans generally, have become critical of Israel’s long-standing denial of Palestinian human rights and national self-determination. Israeli Prime Minister Benjamin Netanyahu’s populist, illiberal policies and his theocratic governing-coalition allies have alienated them further. On the other hand, Republicans and many religious conservatives have seized on support for Israel—including unrestrained backing for right-wing Israeli governments—as an article of faith, and, increasingly, a political litmus test. (Scheindlin, n.d.)

Despite the Biden administration’s strong support for Israel after October 7 and through much of the war—and despite the fact that a large majority of American Jews have traditionally voted Democratic—Israelis show that they prefer Donald Trump to Joe Biden by a wide margin. Unlike in past decades, a majority of Israelis also approve of their leaders’ defying U.S. policy preferences. And it’s not clear that these Israelis are much concerned about a rupture in the U.S.-Israeli relationship or that Israeli defiance might one day jeopardize the extensive military aid on which Israel relies. (Scheindlin, n.d.)

By contrast, even before he entered the Oval Office, Biden’s lifelong record as a devoted pro-Israel Democrat left many Israelis cold. In October 2020, ahead of the U.S. election that year, a survey conducted by the Israel Democracy Institute (IDI) found that 63 percent of Israelis preferred to see Trump reelected; just 17 percent preferred Biden. Following Biden’s victory, an even larger percentage of Israelis—73 percent—said that Biden was likely to be somewhat or much worse than Trump for Israel, according to another IDI poll.

By contrast, in April 2024, after the United States gathered an international coalition that included even Arab states to provide extraordinary military support to Israel, using their combined air defenses to thwart a massive Iranian missile attack, Israelis seemed no more favorable toward the Biden administration than before. Following the attack, the IDI reminded Israelis of this highly effective coalition and asked if they would now “agree in principle to the future establishment of a Palestinian state, in return for a permanent regional defense agreement.” Israeli numbers didn’t budge: a majority of 55 percent rejected the idea, while just 34 percent agreed. The rate was even lower among Israeli Jews: only 26 percent agreed. (Scheindlin, n.d.)

Israeli political analyst Dahlia Scheindlin joined The Sunday Magazine guest host David Common to talk about how developments at the International Court of Justice (ICJ) and the International Criminal Court (ICC) are straining relationships with some of Israel’s traditional allies.

Israel is facing renewed pressure in the war with Hamas, between the International Court of Justice ordering the country to halt its Rafah offensive, and the International Criminal Court's top prosecutor seeking arrest warrants for Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. Israeli political analyst Dahlia Scheindlin joined Common to talk about how these and other developments are adding to tension in Israeli society, political divisions within its government, and strain in the country's relationships with some allies. (How ICJ, ICC Moves Are Playing Out in Israel Amid War With Hamas, n.d.)

The commentary by Israeli political analyst Dahlia Scheindlin reveals a drifting apart of American and Israel over the conduct of the war in Gaza and the trajectory of right wing political aspirations that are contrary to the two state target for Palestine and Israel.

References

How ICJ, ICC moves are playing out in Israel amid war with Hamas. (n.d.). The Sunday Magazine. Retrieved May 26, 2024, from https://www.cbc.ca/radio/sunday/the-sunday-magazine-for-may-26-2024-1 

Scheindlin, D. (n.d.). Can America’s Special Relationship With Israel Survive? Foreign Affairs. Retrieved May 26, 2024, from https://www.foreignaffairs.com/israel/can-americas-special-relationship-israel-survive 

Further Damage to Israel's international reputation

It was the second blow to Israel's international reputation this week after the chief prosecutor of the International Criminal Court (ICC) said he would seek arrest warrants for Netanyahu and his defence minister. The International Court of Justice is also considering allegations of genocide that Israel has strenuously denied. Norway, Ireland and Spain have announced plans to recognize a Palestinian state. The CBC posted an Associated Press article about  the recognition announcement.

Division Increases

The announcements are unlikely to have any impact on the ground. Israel annexed east Jerusalem and considers it part of its capital, and in the occupied West Bank it has built scores of Jewish settlements that are now home to over 500,000 Israelis.

The settlers have Israeli citizenship, while the three million Palestinians in the West Bank live under seemingly open-ended Israeli military rule. In Gaza, the war is still raging, and Prime Minister Benjamin Netanyahu has said Israel will maintain open-ended security control of the territory even after any defeat of Hamas. (Norway, Ireland and Spain to Recognize a Palestinian State, n.d.)

The move announced on May 23, 2024, could put more pressure on continental heavyweights France and Germany to reconsider their position. The United States and Britain, among others, have backed the idea of an independent Palestinian state existing alongside Israel as a solution to the Middle East's most intractable conflict. They insist, however, that Palestinian independence should come as part of a negotiated settlement.

"The president is a strong supporter of a two-state solution and has been throughout his career," a spokesperson for the White House National Security Council said. "He believes a Palestinian state should be realized through direct negotiations between the parties, not through unilateral recognition."

In Ottawa, a non-binding motion concerning Palestinian statehood introduced by the NDP was carried 204 to 117 in March. It passed after a Liberal government amendment stipulating that Canada will "work with international partners" to "pursue the goal of a comprehensive, just and lasting peace in the Middle East," and work "towards the establishment of the State of Palestine as part of a negotiated two-state solution." (Norway, Ireland and Spain to Recognize a Palestinian State, n.d.)

Peter Beaumont in London and Sam Jones in Madrid ask the question in the Guardian: “How significant is Spain, Norway and Ireland’s recognition of Palestinian state?” Recognitions point to erosion of US ‘ownership’ of Israel-Palestine peace process and open a route towards statehood.

Sweden, Norway, Ireland and Spain have long been seen as sympathetic to the Palestinians. The UK has also indicated it could consider recognising Palestine amid a deeper frustration over the long refusal of Israel – not least during the Netanyahu era – to advance towards a two-state solution, even as Israel has continued appropriating Palestinian land for settlement.

As Hugh Lovatt of the European Council on Foreign Relations says, it also opens a meaningful route towards statehood. “Recognition is a tangible step towards a viable political track leading to Palestinian self-determination.

“This is a pre-requisite for securing Arab engagement in support of a sustainable ceasefire in Gaza. As part of their ‘Arab vision’ plan to implement a two-state solution, states such as Saudi Arabia have called for US and European recognition of Palestine.” 

A cliche in Israel politics for more than a decade – and coined by the former prime minister Ehud Barak – is that Israel risks a diplomatic tsunami because of its policies. In recent weeks that tsunami has begun crashing down on Netanyahu. The recognition falls hard on the heels of Netanyahu and his defence minister, Yoav Gallant, being told that warrants are being sought against them for war crimes by the prosecutor at the international criminal court. Israel is being investigated at South Africa’s behest for alleged genocide at the international court of justice too. 

While there remains a profound disconnect in Israeli society over the international distaste for its right/far-right government and the way it has been conducting its campaign in Gaza, Israelis are also aware that their country is increasingly being treated as a pariah and becoming ever more diplomatically isolated. That has, in part, driven the increasing and the suddenly more visible fractures within Netanyahu’s own cabinet, raising serious questions over how long his government can survive. (Beaumont & Jones, n.d.)

Criticism of the decisions made by the Netanyahu government in the war with Hamas continues to mount. This round of loss of agreement with allies may remind the Israeli population of the three strikes against Netanyahu back in November 2023.

References

Beaumont, P., & Jones, S. (n.d.). How significant is Spain, Norway and Ireland’s recognition of Palestinian state? the Guardian. Retrieved May 23, 2024, from https://www.theguardian.com/world/article/2024/may/22/significant-spain-norway-ireland-recognition-state-palestine 

Norway, Ireland and Spain to recognize a Palestinian state. (n.d.). CBC News. Retrieved May 23, 2024, from https://www.cbc.ca/news/world/palestinian-state-ireland-norway-spain-1.7210856 

War Crime Charges make a Difference

Kenneth Roth, former executive director of Human Rights Watch, and a visiting professor at Princeton’s School of Public and International Affairs, offers an opinion for the Guardian on whether war crime charges make any difference in the conflict in Gaza.

ICC prosecutor requests arrest warrants for Netanyahu, Gallant and three Hamas leaders – video

The Israeli government is not about to surrender Netanyahu or his deputies for trial. But their travel would suddenly be limited. Although the US never joined the court, European governments have, meaning that suddenly Europe and much of the rest of the world would be out of bounds for those charged without risking arrest. It would also make it more difficult for Washington and London to pretend that their ongoing arming of the Israeli military is not contributing to war crimes.

In addition, an initial round of charges would be an implicit threat of more. As Netanyahu contemplates a potential invasion of Gaza’s southernmost city of Rafah despite 1.4 million Palestinians sheltering there, he must worry about whether more civilian deaths would spur Khan to intensify investigation of Israel’s apparently indiscriminate and disproportionate attacks on civilians. The ICC thus may live up to its potential not only to provide retrospective justice, but also to deter future war crimes. (Roth, 2024)

Barak Ravid reports two Israeli officials told Axios that Israeli Prime Minister Benjamin Netanyahu asked President Biden to help prevent the International Criminal Court from issuing arrest warrants for senior Israeli officials in connection with the war in Gaza, The officials said Netanyahu expressed his concern to Biden in a phone call on Sunday April 28, where the two leaders also discussed hostage negotiations, Israel's defense against Iran's missile attack, and the need to increase humanitarian aid to Gaza, according to a White House readout.

The ICC, which is based in The Hague, Netherlands, has been investigating possible war crimes by both Israeli forces and Palestinian militants dating back to the 2014 Israel-Hamas war.

U.S. officials said they do not have a clear indication whether the ICC is going to issue arrest warrants, but said the prosecutor's office is under pressure from NGOs and several ICC member states to do so. (Ravid, 2024)

Patrick Wintour and Julian Borger report to the Guardian that G7 diplomats argue any move now in an investigation launched in 2021 could disrupt current ceasefire talks.

Israeli politicians including the prime minister, Benjamin Netanyahu, have suggested that the ICC could press charges imminently after an investigation launched in 2021 that covers events starting in 2014. The inquiry has also been looking at Israel’s construction of settlements in occupied territory. (Wintour & Borger, 2024)

Bethan McKernan in Jerusalem reports for the Guardian on the Karim Khan application for warrants relating to alleged crimes committed during the 7 October attack and the ensuing war in Gaza. The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant, a move that puts the post-second world war rules-based order to the test and presents new challenges for Israel’s western allies.

He named Yahya Sinwar, the Hamas chief in the Gaza Strip, and Mohammed Deif, the commander of its military wing, considered to be the masterminds of the 7 October assault, as well as Ismail Haniyeh, the leader of the group’s political bureau, who is based in Qatar, as wanted for crimes of extermination, murder, hostage-taking, rape, sexual assault and torture.

Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. (McKernan, n.d.)

The Economist article comments that in The Hague, the International Criminal Court (ICC) is considering war-crimes prosecutions against Israeli leaders, including Binyamin Netanyahu, the prime minister, over the conflict in Gaza.

The ICC, more like a criminal court, investigates people rather than states. But it can prosecute a broader range of offences—not only genocide but also crimes against humanity and war crimes. Independent prosecutors decide whether to issue arrest warrants, but rely on states to enact them. They can charge anyone involved in crimes committed on the territory of countries that have ratified the ICC’s statute, or by their citizens. The ICC can investigate a fourth crime, of “aggression”—regarded as the “supreme international crime” that leads to other atrocities—but only if suspects are citizens of state parties. The ICC's work is thus limited because dozens of countries have declined to join the court—among them America, Russia, China, India and Israel.

A finding of genocide would be grievous to Israel, a country born from the ashes of the Holocaust. Israel is said to be threatening retaliation against the Palestinian Authority (which, in effect, granted the court jurisdiction in Gaza). Israel’s supporters in Congress call for sanctions against the ICC. Mr Khan, in turn, has demanded an end to “all attempts to impede, intimidate or improperly influence officials”.

All of which is a quandary for the Biden administration. America is not a signatory but has supported the ICC in Ukraine. Yet it says the court lacks jurisdiction in Gaza. America urges Israel to do more to protect Palestinian civilians, but has for months supplied it with weapons. On May 8th America confirmed it had suspended a shipment of heavy munitions out of concern that they might be used in Rafah, where more than 1m Palestinians are sheltering. Despite an international outcry, Israel is starting to push into that city. Talks about a ceasefire continue. (The World's Rules-Based Order Is Cracking, 2024)

The difference that pressure from International Courts and advice from traditional allies of Israel can make is to clarify to Israel that failure to attend to violations of humanitarian law, particularly in the areas of civilian famine, loss of medical services, lack of distinction of civilians, and lack of proportionality in pursuit of military objectives has consequence most immediately in loss of military support and ultimately in possible arrest of war criminals.

References

McKernan, B. (n.d.). ICC prosecutor seeks arrest warrants for Israeli PM and Hamas officials for war crimes. the Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/article/2024/may/20/icc-prosecutor-seeks-arrest-warrants-israeli-pm-netanyahu-hamas-officials-war-crimes 

Ravid, B. (2024, April 29). Netanyahu asks Biden to help stop ICC arrest warrants over Gaza war. Axios. Retrieved May 20, 2024, from https://www.axios.com/2024/04/29/netanyahu-biden-icc-arrest-warrants-war-crimes 

Roth, K. (2024, April 29). What will happen if the ICC charges Netanyahu with war crimes? | Kenneth Roth. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/commentisfree/2024/apr/29/netanyahu-icc-war-crimes 

Wintour, P., & Borger, J. (2024, April 29). ICC urged to delay possible war crimes charges against Israel and Hamas. The Guardian. Retrieved May 20, 2024, from https://www.theguardian.com/law/2024/apr/29/icc-possible-war-crimes-charges-israel-hamas-g7 

The world's rules-based order is cracking. (2024, May 9). The Economist. Retrieved May 20, 2024, from https://www.economist.com/international/2024/05/09/the-worlds-rules-based-order-is-cracking