Operation Protective Edge has brought unprecedented attention to tunnel warfare, and we can expect tunnels to remain center stage as the conflict winds down and inquiries – legal and otherwise – related to the conflict are launched.

Though tunnels were used by the British Army during World War I, the Vietcong in Vietnam, Al Qaeda in Afghanistan, and even the rebels during the current conflict in Syria, tunnels have not been seen as a key strategic threat in decades – until they formed the Israeli government’s main justification for Operation Protective Edge this July. As the military effort comes to an end, Israel will certainly assess whether the security establishment (wrongly) downplayed the security risk posed by the Hamas-built tunnels.

Other questions, this time related to the legal issues surrounding tunnel warfare, will also emerge. Tunnels have been used as a tactic of war since ancient times, but, unlike other military means and methods which are regulated by international law, tunnels as such are not addressed in the law governing war. Some would interpret this silence as indicating that tunnel warfare does not raise any unique legal issues. Dealing with tunnels, they might argue, does not significantly differ, from a legal perspective, from waging war in urban areas. But it does.

The tunnels built by Hamas in Gaza, in particular, present novel issues for international law. Gaza’s tunnels are different from traditional military objectives like army bases or weapons depots. In their design, the tunnels burrow under an internationally recognized border, they traverse civilian areas, and their primary objective and effect – contrary to international law – is to harm and endanger civilians, both Israeli and Palestinian.

While being constructed, Gaza’s tunnels pose a substantial risk to those building them – often children – and to the civilian structures under which they are dug. The last few weeks have shown us that most tunnel digging begins within homes, hospitals, mosques and other “protected objects”. Filled with explosives and weapons, tunnels can detonate at any time, risking not only the lives of the diggers and operatives who use them, but also the civilians living above them. And this is only on the Palestinian side of the border.

Equally challenging are the conditions in which these tunnels may be eliminated. In Gaza, which does not have the open spaces found in Vietcong-controlled Vietnam or al Qaeda-controlled Afghanistan, the destruction of a tunnel inevitably results in the destruction of civilian structures above the subterranean passage, and in many cases the loss of civilian lives.

Destroying a tunnel involves massive bombing from above or finding its access points and destroying it from within. An explosion on one part of a tunnel will inflict unforeseen damage on different and potentially unknown segments of the tunnel, or even to the land surrounding it – potentially damaging schools, civilian homes, and businesses. In legal terms, this means that the tunnel’s interconnected infrastructure impedes the assessment of proportionality prior to its destruction, i.e. the determination of whether collateral damage resulting from the destruction of the tunnel might be excessive in the relation to the military advantage anticipated from that destruction. Even careful mapping of the tunnel ahead of a strike may not suffice to ascertain collateral damage, since tunnels can be expanded rapidly and beyond the detection of intelligence services. Tunnels thus present the special danger of unforeseen damage to civilians and protected objects on both sides of a conflict (from civilian infrastructure to cultural and religious objects and the environment) during their construction and destruction.

For these reasons, the construction of combat tunnels under civilian populated areas and protected sites like hospitals, across borders, and/or with the intention of maiming civilians must be regarded as a violation of international law.

Unfortunately, the regrettable and unforeseen consequences caused by the destruction of a tunnel complex cannot be avoided. History teaches that there is no real alternative to destroying tunnels. Making them unwelcoming or ousting their occupants and munitions does not solve the problem for good. Tunnels can be “inherited” years later by the same or another enemy, as in the Vietnam War or the Afghan war. Tunnels must thus be destroyed in their entirety for the security threat to be eliminated, regardless of their location and purpose at the time of their dismantlement. This, too, sets underground warfare apart from urban warfare: in urban warfare where civilian buildings are used by armed groups to plan and carry out their operations, the buildings themselves need not be taken down for the threat to be eliminated.

Underground warfare raises additional legal challenges due to the “unknown factor” which permeates virtually every aspect of anti-tunnel operations – and in levels exponentially higher than in above-ground operations. Knowing where the enemy hides, assessing the extent of its destructive capabilities, and localizing the threat present a nearly insurmountable challenge in the context of underground warfare. Tunnels significantly diminish incoming intelligence and limit the means of communication that can be used inside the tunnels once they have been discovered. Providing “effective advance warning” of imminent strikes emanating from tunnels is practically impossible. And knowing which weapons and what level of force to use to counter the threat – without knowing what is going on underground – can be a difficult call.

So while underground warfare may resemble ordinary urban warfare in many ways, concepts developed to contend with urban warfare will not fully answer the questions asked by legal experts in the aftermath of the conflict. Tunnel warfare raises uniquely challenging legal issues which will have to be tackled with.

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Tunnels are by no means confined to the Gaza Strip: most Western states have had to contend with subterranean warfare in the past decade, from the mountains of Northern Mali to Libya and Afghanistan.  Aware of the growing threat, the US has recently moved forward two legislative initiatives designed to increase military preparedness in relation to underground warfare.  In an age of satellites, UAVs and sophisticated signals intelligence, underground warfare has reemerged as a strategic equalizer between modern militaries and poorly equipped but highly motivated armed groups. 

In its Gaza report, the Human Rights Council’s commission had an opportunity to address this concerning trend for the first time.  But rather than acknowledging tunnels for the threat they have become – indeed the ascendance of tunneling tactics represents a paradigm shift in modern warfare – the commission treated the tunnels built by Hamas as a mere anecdotal detail without any real operational or legal significance.

Underground warfare, in Gaza, Iraq or elsewhere, affects military operations in deep and significant ways. The use of tunnels impedes the ability to distinguish between civilians and combatants and endangers civilian facilities under which tunnels burrow (homes, hospitals, schools).  War underground significantly hampers the collection of intelligence and exposes forces to heightened risks as soldiers need to search and seal tunnel openings as well as record vital information about tunnels’ routes, contents, and construction – all while fully exposed to enemy fire. Tunnels also increase the likelihood of kidnappings, a particularly sensitive issue in Israel where kidnapping through tunnels has forced the release of hundreds of imprisoned terrorists. And of course cross-border tunnels facilitate undetected infiltrations.     

But none of this is acknowledged by the commission’s report. 

The Human Rights Council report only addressed one, albeit key feature of underground warfare: the psychological impact it has on the civilian population when tunnels are located in proximity to urban areas.  The report stressed the sense of insecurity, anxiety and fear the tunnels caused to Israeli civilians, particularly given the tunnels’ location “close to residential areas.”  Yet it falls short of drawing any legal conclusions as to the legality of the tunnels or their use. 

In a weak and flawed analysis, and despite the repeated references to the tunnels’ threat vis-à-vis civilians, the commission of inquiry concludes that it “cannot conclusively determine the intent of Palestinian armed groups with regard to the construction and use of these tunnels.”  The report goes on to observe that “during the period under examination, the tunnels were only used to conduct attacks directed at IDF positions in Israel in the vicinity of the Green Line, which are legitimate military targets.”

The report’s only substantive finding in relation to Hamas’ tunnels thus legitimizes – without reservation – a subterranean threat that violates Israel’s territorial sovereignty, and has been used to terrorize Israeli border communities and carry out operations in blatant violation of the laws of war (when Hamas operatives emerged out of a tunnel on Israeli territory wearing IDF uniforms, for example).

The very fact that they pose a threat to the civilian population could (should?) have been sufficient for the commission to condemn them.  Numerous international instruments and states’ military manuals prohibit acts or threats of violence the primary purpose of which is to spread terror among the civilian population.  The report should also have condemned the well-documented presence of tunnel shafts under or near civilian buildings – which exposes civilians on both sides to inevitable danger.  

By ignoring the strategic significance of tunnel warfare the UN Human Rights Council once again missed an opportunity to contribute constructively to the fight against rogue actors who, as part of their strategy, violate the law and endanger civilians.  With ISIS building intricate underground tunnel complexes in Syria, Iraq and, most recently, along the Syria-Turkish border, there is little doubt that the anecdotal treatment of tunnels and the limited and hasty legal conclusions reached by the commission will resonate far beyond the limited context (and battlefield) in which they were adopted.  

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Last month, the United States targeted a “cash distribution site” where millions of dollars belonging to ISIS had reportedly been stored. The target was considered so valuable that it would have justified a high number of civilian casualties (rumors say that the magic number was 50). Yet, the determination of whether money is civilian or military in nature, assuming this test is even relevant, is not as straightforward as it seems.

The nature of money makes it difficult to ascertain its origin or purpose. Perhaps for this reason, the law of armed conflict does not assign a status — civilian or military — to money. However, the well-established rule that civilians cannot be targeted based solely on the ground that they pay taxes to the state suggests that money does not turn people (or objects) into legitimate targets.

The strike against ISIS’s money marks a departure from this traditional interpretation. We have little information about the target itself — one possibility is that it was the Diwan Bayt al-Mal, ISIS’s finances and currency authority —or the legal rationale behind the strike, but we may speculate on what it might have been.

Unless the building itself was the target, which does not seem to be the case, the strike supposes that money may constitute a legitimate target; i.e., that money could be either civilian or military in nature. Whether or not money constitutes a legitimate target would depend, I assume, on its projected use. Funds destined for the military effort would be regarded as a legitimate target, but funds earmarked for the wellbeing of the civilian population would not.

While it is virtually impossible to isolate funds destined for the military effort from the broader pool of resources in a state apparatus, the situation might be different in a terrorist organization. Money held by a terrorist group arguably fulfills only a single purpose: allowing the commission of atrocious, barbaric acts against innocent civilians. That the cash is destined for a clearly designated purpose — one that the law condemns — might, under this rationale, justify its targeting. If the cash constitutes a legitimate target, it might justify civilian deaths, provided the foreseeable damage to civilian life and civilian infrastructure is not excessive in comparison to the military advantage anticipated from the strike. The more money is at stake, the higher number of civilian casualties would be deemed lawful.

Assuming this reflects the thinking behind the strike, where does ISIS fit in? One could argue that ISIS money was destined to finance the most atrocious acts and was obtained from illegal activity. But ISIS is a complex entity that, alongside its brutal and ruthless activity, also administers territory and governs people. Some of that money, given ISIS’s sophisticated bureaucracy and involvement with the civilian population it controls, was likely destined for the civilian population either through subsidies, social work, judicial services, or school funding. While we do not like equating ISIS’s governance to that of a state, its modus operandi has increasingly come close to the Weberian model of the state. I doubt we would accept an interpretation of the law that would regard states’ cash as a legitimate target because the funds are used to finance the military effort. We would likely object that the money also finances a plethora of other non-war related projects.

Whether or not we accept the (admittedly speculative) rationale that guided the strike, the targeting of money deserves a lot more attention than it received in the strike’s aftermath — precisely because ISIS operates and uses money much like a state. Had it been carried out against a smaller, contained, and not terribly powerful terrorist group, it would probably not raise as many questions.

Money plays a complex role in terrorism — one that does not call for simple answers. Domestic and international regulations have yet to account for the growing role of “supportive” institutions that operate thanks to funds obtained via terrorist activities (e.g., ransoms paid for hostages) or that generate revenues for terrorist groups (such as charities). Until January 10, the fight against terror financing had been left to international treaties, cooperation, domestic controls, and legislation. It has now entered the realm of targeting.

The views expressed in this publication are solely those of the author(s) and do not necessarily reflect the views of the International Institute for Counter-Terrorism (ICT).

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Published in the Harvard National Security Journal 

International law does not directly address intelligent defense systems (IDSs), of which Israel’s Iron Dome embodies the most successful implementation to date. This Article argues that international humanitarian law (“IHL”) should encourage the development and use of systems like Iron Dome by conceptualizing such systems as civil defense.

That IHL should incentivize IDSs is not as obvious as it may seem. While incentivizing IDSs would uphold humanitarian law’s ultimate purpose (i.e., the protection of civilians), the data suggests that IDS deployment can lead to an increase in rockets and the (re)emergence of violent tactics. IDSs also challenge the prevailing logic of IHL, which is typically focused on protecting the other side and not one’s own. But not incentivizing systems like Iron Dome flies in the face of IHL’s essence and leads to more casualties.

IHL should choose to incentivize intelligent defense systems for reasons grounded in humanitarian law itself, data analysis on Iron Dome, and offense-defense theory. Ultimately, conceptualizing IDSs as civil defense best addresses the complex legal and security dilemmas arising out of the use of intelligent defense systems.

For the full article click here

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