Oona A. Hathaway, Azmat Khan & Mara R. Revkin
Yale Law Journal, Volume 134, Issue 8, 2025
The Geneva conventions prohibited the targeting of civilian objects such as hospitals, schools and private homes. Yet over the last 22 months, Israel has attacked 686 health facilities in Gaza and damaged at least 33 of the strip’s 36 hospitals, according to the World Health Organization. More than 90 percent of homes in Gaza have been destroyed or damaged, according to the United Nations, leaving most of its 2.2 million residents displaced. Since March, Israel has intentionally demolished thousands of buildings in depopulated portions of the enclave, razing hospitals, mosques, apartment complexes, tower blocks, schools and other critical civilian infrastructure.
How can a state argue that such wanton and widespread destruction of traditionally protected objects is legal? The answer largely lies in the rise of “dual use” targeting — when a state claims civilian objects also have military use, however modest or poorly evidenced.
In this 106-page Article in the Yale Law Journal, Oona Hathaway, Azmat Khan, and Mara Revkin use war zone reporting, a rigorous study of the history of targeting, and an analysis thousands of pages of military records to show how the rise of targeting alleged “dual-use objects” has eroded protections under international humanitarian law. The rise of dual-use targeting has created a porous category of targetable objects that are obviously critical to civilian life and yet are dubbed lawfully targetable, allowing states to dramatically expand the scope of targets to include almost anything under the standards used.
Dual-use targeting has been shaped heavily by the U.S. and its close ally Israel, with increasing use by states like Russia, Saudi Arabia and Iran. Its pernicious effects go beyond targeting; the “dual-use” justification has led to restrictions on essential items like pipes, water filters and pumps, spare parts of electrical generators, and even medical scissors — essentially thwarting efforts to meet the basic humanitarian needs of civilians. The Article offers avenues for reform, while demonstrating how failing to address this dangerous phenomenon will affect civilians for generations, while also further eroding the principles of distinction and proportionality.
Oona A. Hathaway & Azmat Khan
University of Pennsylvania Law Review, Vol. 173, No. 1, 2024
In December 2023, the Israeli Defense Forces (IDF) struck Maghazi, a refugee camp in central Gaza, killing eighty-six people in what an Israeli government spokesperson called a “regrettable mistake.” In March 2024, the IDF admitted that, in a strike that killed two people, “the bicycle carried by one of them was mistakenly marked as a rocket launcher.” In April 2024, the IDF killed seven World Central Kitchen workers in aid vehicles. The IDF later issued a statement calling the strike “a grave mistake stemming from a serious failure due to a mistaken identification.” A month later, Prime Minister Benjamin Netanyahu said that an Israeli strike that killed dozens of people, most of them women and children, living in a camp for displaced Palestinians in Rafah was “a tragic accident.”
Under the law, at what point does a “mistake” become a war crime? When “mistakes” occur repeatedly, in ways that are predictable and go unstudied and unaddressed, are they really “mistakes”? What obligations do states have under international law to make real changes to systems that repeatedly create predictable “mistakes”?
Many believe that civilian casualty incidents that states identify as “mistakes” cannot be war crimes because they lack criminal intent, but in this 88-page Article in the University of Pennsylvania Law Review, Oona Hathaway and Azmat Khan show how that prevailing view is false.
Based on years of ground reporting, an analysis of thousands of pages of military records, and a rigorous study of case law, they show that there is significant evidence that existing international humanitarian law can be applied to find criminal culpability in the disturbing phenomena of “mistakes” in war, that criminal intent can be met under a “recklessness” standard, that this is a real and frequently occurring problem with real world impacts that is going unaddressed, and that states — not just individuals — can be held responsible for failing to prevent certain mistakes. The Article does more than identify problems; it explores systemic reforms and ways to use existing law, while also demonstrating the human the impact of failing to address “mistakes” in war.