Guest Post: Israel’s Use of Law and Warnings in Gaza

Guest Post: Israel’s Use of Law and Warnings in Gaza

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.]

In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel’s use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.

But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn.

The final paragraph of Article 57 provides a first strong indicator that warnings do not influence the legal obligations an attacker otherwise faces. It unequivocally states that ‘[n]o provision in this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects’. Only if warnings could somehow affect the status of persons or objects as civilian could they hence have legal implications. Can warnings change the status of the objects attacked? There is one and only one way in which an object can become a military objective under the principle of distinction: ‘by its nature, location, purpose or use [it] make[s] an effective contribution to military action’ and its engagement ‘in the circumstances ruling at the time offers a definite military advantage’. This is a test, enshrined in Article 52(2), the necessity or stringency of which is entirely unaffected by advance warnings. Civilian residences do not become military objectives only in virtue of their inhabitants having been warned.

By the same token, warnings do not take care of the attacker’s obligation to weigh expected collateral damage against the anticipated military advantage and make sure the former is not disproportionate, ‘excessive’ in the language of Article 51(5) b. While the IDF has never stated that warnings diminish other legal requirements, during Operation Protective Edge the sheer number of civilian residences attacked and the high ratio of civilian casualties (Human Rights Watch estimates 77%, the United Nations 73%) suggest that civilians who remain in their homes after a warning are disregarded or at least, as it were, attributed less ‘weight’ in the proportionality calculus than civilians who are taken by surprise. The argument for why civilians who remain in their homes, warnings notwithstanding, do not have an unimpaired claim to protection is that they must have decided to serve as human shields to the military objective that is the target of the impending attack. ‘Hamas exploits many of the IDF’s attempts to provide advance warning by using civilians as human shields in order to deter attacks’, the IDF charges.

Voluntary human shields may, under certain circumstances, be considered to directly participate in hostilities and hence, for such time as they do, lose their protection from attack under Article 51(3). Yet, staying put after a warning is not sufficient evidence for the warned civilians’ qualification as voluntary human shields. Staying in your home is not an affirmative step to block an attack either physically or legally. International law does not know of an ‘obligation to leave’ after being warned. That is true even if a warning is effective in the sense that it is unmistakable and civilians have the time and means to get to safety, all of which has been questioned in the case at hand. That children can never be considered voluntary human shields is self-evident.

All international laws asks of civilians is not to directly participate in hostilities, but that obligation cannot be considered violated by ‘not fleeing’. No hostile intent can be inferred from the decision not to leave one’s home in a war zone. Direct participation in hostilities is an exception to the most fundamental rule on which the entire idea of a legal regulation of warfare depends: civilians are immune from direct attack. It must be interpreted restrictively. Much as a person, in case of doubt, is a civilian, a civilian, in case of doubt, is not directly participating in hostilities.

By the same token, a belligerent may not simply assume that warned civilians leave so that the expected collateral damage of an attack that is preceded by a warning is zero or even at all diminished. Article 57(2) b demands that belligerents ‘cancel or suspend’ an attack if it becomes evident that ‘the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated’. There is no reason why that may not become evident after a warning when it turns out that the warned civilians have not in fact left.

At the end of the day, any interpretation of Article 57 that imposes an additional obligation on civilians, but weakens the obligations the attacker faces is an interpretation contra legem. While by no means all rules of international law for the conduct of hostilities have an overriding humanitarian purpose, Article 57 does. Its regulative goal is to spell out what it means to do justice to distinction and proportionality by protecting civilians as much as militarily possible. It does not spell out how the attacker’s obligations fall by the wayside if the presence of the civilian population interferes with a belligerent’s ability to conduct effective military operations.

A second concern is not that warnings are used to weaken other legal obligations, but that the practice itself violates international law. In circumstances in which the civilian population has in fact no means to leave do warnings violate Article 51(2)? The second sentence prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’. It is deeply plausible that a warning that one’s house will be bombed, in the absence of a real possibility to get to safety, does just that: it induces terror. Of course, from the practice alone we cannot infer that terrorising the civilian population is its primary purpose. Is their consistent ineffectiveness even counter-productiveness, as alleged by Amnesty International, Human Rights Watch and the United Nations, evidence enough that protecting civilians is not the primary purpose of warnings?

International law here asks us to make assumptions about the motivations of a belligerent, which is difficult enough in a court room. On a battlefield what we are left to do is look to a belligerent’s general concern for human life and commitment to international law. We tend to grant those to Israel and deny them to Hamas. When Hamas advises civilians to ignore warnings the IDF asks us to believe that the motivation is to use civilians as human shields, not to avoid panic and mass displacement as Amnesty International suggests might be the case. When Israel warns civilians we are meant to believe that the motivation is to protect civilians, not the old idea of terror-bombing civilians into withdrawing their support from a war-mongering government.

While Hamas has done little to suggest concern for human life and nothing to demonstrate commitment to international law, recent statements by Israeli politicians would make it naïve to accept warnings as simply the practice of a belligerent that selflessly upholds international law against an enemy that only uses it to score points. Lawfare, ‘the use of law as a weapon of war’, is usually understood to mean imposing reputational costs on the belligerent trying to comply with law by alleging violations or making compliance difficult, a charge routinely levelled against Hamas. Using law to circumvent legal obligations in order to be able to continue to claim compliance is a new form of the ‘negative manipulation of international … laws to accomplish purposes … contrary to … those for which they were originally enacted’. Using warnings as a means to legitimise the disproportionate victimization of civilians is lawfare 2.0.

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These “warnings” of the IDF are a mockery. In fact, international law scholars agree that Israel is committing war crimes in Gaza by deliberately targeting civilians. The narrative of Hamas hiding behind civilians has been refuted numerous times and lacks proof. Israel has thereby violated fundamental international humanitarian law provisions and shown its utter disregard for human rights law. A very good and indepth analysis on the Gaza conflict from an international law perspective can be found on muslimlawyer.weebly. com .

Jens David Ohlin

Janina, this is a fascinating post.

What about article 57(2)(a)(ii) (“take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”).

Isn’t this the relevant provision? Assuming that the attack, even if the civilians stay, satisfies the prohibition against disproportionate collateral damage. Article 57(2)(a)(ii) imposes an additional duty to minimize collateral damage as far as possible –precisely why some countries refuse to sign API. So warning civilians might be one way of doing that.

There is a famous discussion of this in Walzer’s Just and Unjust Wars, where he says there may be a moral duty to warn civilians even if that imposes greater risks on the attacking forces. He talks about an infantry soldier announcing himself and shouting into a basement, just because there might be civilians down there (which increases the risk to the soldier).

What do you think?

Thanks for writing this post!

Cannot disclose
Cannot disclose

Janina, thank you for this fascinating post – I found the Lawfare 2.0 to be an exceptionally lucid explanation of something I had a hard time expressing (though I do not have empirical data to suggest that I am having a hard time with your Article 57 analysis. Both because of the reasons raised by Jens, but also because I think your analysis misses a substantive element of the balance between the ability to conduct military operations and the duty to minimize civilian casualties. Mostly, I am having a difficult time with your argument that civilians have no duty to leave a mixed use civilian-combatant target even after they have been warned that it will be targeted in the near future for attack. In instances where the civilians have no free will (held at gun-point by Hamas) you may have a point (though then we have a host of other questions to deal with), but isn’t the notion of “voluntary human shields” exactly that – civilians who voluntarily choose to stay in a place which they know is about to be targeted because it serves as a mixed civilian-target that is about to be attacked? How else would you define… Read more »

Kevin Jon Heller

CD,

But how are civilians not leaving their homes — where they have a lawful right to be — “wilfully plac[ing] themselves in a place where they know the attack is imminent”? Where does that positive obligation to leave come from? I don’t see anything in IHL that requires civilians to distinguish themselves from military objectives; the only obligation is on combatants to distinguish themselves from civilians. So I think the act/omission distinction has every merit in the analysis — just as civilians are prohibited from deliberately acting in such a way that they render it more difficult to attack a military objective (which is the lex lata definition of a voluntary human shield), they are not required to act in such a way that their homes become easier to attack.

Cannot disclose
Cannot disclose

Kevin,

First of all, I am not sure that civilians have a lawful right to be in their homes during hostilities.

Second, I don’t think leaving their homes has anything to do with “making it easier to attack”. It has to do with not making the damage that will be caused by the attack of an otherwise legitimate target less proportionate for the sole reason that civilians will be hurt.
.
Finally, I am also not sure how the decision to deliberately remain somewhere that you know is a legitimate military target (subject to proportionality, which you are trying to affect), is not deliberate action to render a target more “difficult” (using your term).

Kevin Jon Heller

The problem with your argument is highlighted in your final point — it is unjustifiable to assume that someone who remains in their home despite warnings is “trying” to affect a proportionality calculation. There are literally dozens of reasons why a civilian would not heed warnings that have nothing to do with trying to insulate their home from attack. (And if you have authority for the proposition that civilians are obligated to leave their homes in a conflict situation, please provide it. I’m genuinely curious.)

Cannot disclose
Cannot disclose

I’ll start with the end – I am not saying that civilians are obliged to leave their homes, I am saying that I am not sure they have the right to remain there. If I am not mistaken article 49 permits partial evacuation by force, this isn’t the same scenario, but it speaks, I believe, to the lack of right to remain at home. . I think I understand what you were trying to say before – when you say deliberately prevent damage, you are talking about something akin to specific intent to shield, as opposed to my use of the term intent, which is general intent. . But I am not sure why you think specific intent to shield is necessary and not general intent to stay in a place one knows is a legitimate military target. First, because I am not sure where you find the legal basis for specific as opposed to general intent. But also because I think you are discounting the legitimate military target side of the equation too much. . If we are talking about a truly military position (not, for example, the residence of a military leader, such as the ones attacked early… Read more »

alex
alex

I appreciate that Janina has taken up this subject. I agree with Jehns’ point that the “knocks on the roof” relate to the “civilian life, injury” parts of Article 57(2)(a)(ii) (“take all feasible precautions . . . to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”) and not to proportionality. Either the homes and other targets that under normal circumstances have been converted into military targets by Hamas and Islamic Jihad or they haven’t been (likely they have been); and if they have been, Israel must use proportionate force. The knocks on the roof don’t excuse them of that obligation (I don’t believe Israel argues that it does in any event). My main quibble is with the second point – that the warnings could somehow be interpreted to be violations themselves because their primary purpose is to cause terror. This is preposterous – Israel loses significant military advantage by giving Hamas and Islamic Jihad forewarning of where they will attack. Effectiveness may be arguable, but media accounts also routinely suggest that the warnings save lives as accounts abound of families that have successfully fled houses used by Hamas for military purposes targeted by Israel.

SteveLaudig

Under what theory does one engage with a “cannot disclose” participant. And not just ‘cannot disclose’ identity but even a general description of interests and possible bias. Credibility is always an issue. I, for one, cannot attribute any credibility to a completely anonymous, unknown. Unknown unknowns have no standing to be attended to in my, perhaps naive, opinion.

Quetzacoatl
Quetzacoatl

But Israel has not ratified The First Additional Protocol to the Geneva Conventions. The writer’s claim of customary international law should be proven.

Eliav Lieblich

Janina, I completely agree that advance warning does not have any effect on the legality of an attack in terms of distinction and proportionality. The proposition that Israel is absolving itself from making the proportionality “calculus” in places where it gives advanced warning is something that should be looked into. However, like other commentators, I have some issues with the second part of your analysis: (a) when looking at motivations for giving warning, there is a spectrum between “selflessness” and malice, which seems to be absent from your analysis. States can genuinely want to give effective warning and minimize civilian harm even for completely utilitarian reasons, such as international legitimacy. You don’t have to assume that states are “saints” in order to assume that they have no real interest in harming civilians. (b) we don’t know to what extent this warning system has in fact saved lives, since we only hear about the times in which it didn’t. (c) For these and other reasons, I think it’s quite of a leap to label a comprehensive system of advance warnings – effective as we would want it to be or not – as an instrument itself meant to spread terror. Would… Read more »

trackback

[…] The first nations did fight back and they were slaughtered…we today view that to be horribly wrong and reparations were and are being made, self rule is given, and ongoing amendments are being made/discussed. Luckily for all of us it isn't hundreds of years ago and we've advanced as a society and can see where our ancestors went wrong…and why many of us can see the atrocities going on in Palestine/Israel and know that its wrong. But perhaps the First Nations issue is why it's difficult for Americans to fully accept the plight of Palestinians. As they were far more brutal and less conciliatory to First Nations than Canada has been and continue to this day to harbour a great deal more hatred/racism towards the issue. Even if you were to agree with the stance of Israel you would expect them to act within the parameters of the law no? for instance take this argument about the "warnings" before bombing http://opiniojuris.org/2014/07/30/gu…warnings-gaza/ […]

Tali Kolesov Har-Oz and Ori Pomson

Quetzacoatl raises a very important point, particularly in light of the heavily reliance the Author places on the text of API. For instance, in relation to the proportionality analysis, scholars such as Dinstein have noted that under customary international law it is the user of human shields upon whom responsibility lies when harm occurs to them. Parks goes a step further, noting that “Protocol I is a conscious effort by the ICRC, Switzerland, and Sweden – working through the Third World – to shift responsibility for collateral civilian casualties from the defender to the attacker”.

Hostage
Hostage

Response…consistently issues warnings before air strikes against targets in Gaza.

But we all know from the attacks on schools and kids playing football on the beach that this policy is not applicable to the employment of artillery by its naval and ground forces and that even the civilians who receive warnings of impending air strikes remain under fire from those other forces. The UNRWA has complained that its requests to the GOI for a window to evacuate the thousands of persons who were advised to take shelter with them have gone unanswered.

The policy doesn’t alter the fact that Israel has herded undesirable parts of its own population into the Gaza Strip and kept them interned there while denying them compensation or repatriation. It has kept the population under siege for nearly a decade now and its own officials admit they occasionally need to “mow the grass” by destroying homes, sources of sustenance, and vital infrastructure in what amounts to grand apartheid and persecution.

Hostage
Hostage

Response…But Israel has not ratified The First Additional Protocol to the Geneva Conventions. The writer’s claim of customary international law should be proven. I agree with the analysis done by Janina Dill (and then some). The government of Israel admits that the laws of armed conflict are entrenched in 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949 and that the customary provisions of The First Protocol are part of Israeli law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at ¶ 20 (11 December 2005). We are discussing Articles which are part of the laws of armed conflict. Israel (the MFA) states that they are part of the legal framework that applies to its operations in Gaza. FYI, it really isn’t up to Israel alone to decide whether the provisions of the additional protocol have attained customary status: THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS 29 Jul 2009 III. THE APPLICABLE LEGAL FRAMEWORK … Some of the rules governing the use of force in armed conflicts are set forth in treaties, such as the Geneva Conventions of 1949 and the Regulations annexed to the Fourth Hague Convention of 1907.(7) Others… Read more »

Gerald Steinberg

This is a classic example in which the rhetoric of international law is stripped on context and used for at best, an amoral, and more accurately, an immoral objective. The facts are 1) Hamas has turned Gaza into a aggressive strategic fortress, storing and launching 10,000 missiles in civilian structures (houses, schools, medical facilities, mosques, etc.) and building massive tunnel structures 30 meters underground for use in murdering Israelis. Every missile and every CM of tunneling constitutes a war crime. In addition, the organizations such as UNRWA, whose facilities are used by Hamas for these illegal and immoral purposes, and such as Human Rights Watch, which defends and abets these war crimes, are acting as immoral ancillaries. Therefore, rhetorical distortions of international legal principles promulgated to guide the application of military force in the implementation of a state’s obligation to protect its population from such assaults have no moral or legal claim. This post is simply an exercise in linguistic contortion that serves to further weaken the already battered perception of international law.

Gerald Steinberg

Corrected: my comment:

This is a classic example in which the rhetoric of international law is stripped of context and used for at best, an amoral, and more accurately, an immoral objective. The facts are 1) Hamas has turned Gaza into a aggressive strategic fortress, storing and launching 10,000 missiles in civilian structures (houses, schools, medical facilities, mosques, etc.) and building massive tunnel structures 30 meters underground for use in murdering Israelis. 2) Every missile and every CM of tunneling constitutes a war crime. 3) In addition, the organizations such as UNRWA, whose facilities are used by Hamas for these illegal and immoral purposes, and such as Human Rights Watch, which defends and abets these war crimes, are acting as immoral ancillaries.
Therefore, rhetorical distortions of international legal principles promulgated to guide the application of military force in the implementation of a state’s obligation to protect its population from such assaults have no moral or legal claim. This post is simply an exercise in linguistic contortion that serves to further weaken the already battered perception of international law.

André de Hoogh
André de Hoogh

Janina Dill writes “All international laws asks of civilians is not to directly participate in hostilities, but that obligation cannot be considered violated by ‘not fleeing’.”

Maybe just a slip of the tongue, but this observation suggests that you think civilians have an obligation not to participate in hostilities. This is not the case. Article 51(3) Protocol I indicates that they are protected unless they take (a) (direct) part in hostilities. However, in participating civilians are not violating any obligation and consequently cannot be held accountable for committing a war crime. They may of course be prosecuted under domestic law, since they lack the combatant’s privilege.

Relating this to the topic under discussion, this also means that any obligation to leave one’s home after being warned cannot be based on a supposed obligation not to (directly) participate in hostilities, but must have an independent source.

shmuel
shmuel

Gerald, not sure who has the major/real/original responsabilities for turning the Gaza Strip in what you claim it is.

Janina
Janina

INTENT TO STAY and VHS Dear Cannot Disclose, You say ‘Supposing a civilian family wishes to stay at home to guard its treasured possessions. And suppose that family lives in the second floor, while in the first floor there is a blacksmith’s workshop where they put together missile bodies. If I follow your logic, the civilians can render the missile factory immune (unintentionally) just by virtue of wanting to stay and protect their property? What weight does this requirement of specific intent assign to military objectives?’ It does not matter why a family wishes to stay in their home! There are a myriad of intentions some more sympathetic (elderly or sick family members you don’t want to leave behind) other slightly less so (wanting to guard your material possessions). It may even be that a family has these intentions and at the same time hopes to shield the workshop downstairs. The point is that as long as IHL does not create a positive obligation for civilians to leave their intent to shield a military objective cannot be inferred solely from their ‘failure to chose to become a displaced persons’. This boils down to a very fundamental if ultimately simple point:… Read more »

Hostage
Hostage

Gerald the mere possession of conventional weapons is not a war crime. I accept the proposition that the way Hamas has employed them is a crime. But Israel routinely violates the airspace of its neighbors and has bombed conventional arms shipments of defensive anti-aircraft systems based upon the doubtful proposition that it has a right to maintain its own technological edge. See for example Larry Derfner, Goading Putin: The insanity of Israel’s military policy http://972mag.com/goading-putin-the-insanity-of-israels-military-policy/76899/

According to Haaretz, Netanyahu told European foreign ministers that if the Russian S300 anti-aircraft missile defense systems get into Syria, Israel’s ‘entire airspace will become a no-fly zone’ and therefore it ‘cannot stand idly by.’ I imagine that many of the EU ministers would welcome a no-fly zone over Palestine right about now. But seriously, what other UN member state is allowed to bomb other member states to prevent them from obtaining defensive conventional weapons?

Janina
Janina

SECOND CONCERN Dear Eliav I absolutely agree the lawfulness of warnings cannot turn on the disinterestedness of the warning belligerent. Of course, any belligerent when issuing warnings does not ONLY only have the protection of human life in mind but also public perceptions, the ability to launch certain attacks while being seen to comply with IL etc. Nothing of that should surprise us or is worthy of criticism or indeed undermines the lawfulness of the practice. The question I am raising is, what if warnings consistently fail to do any of these legitimate goals (on the spectrum from disinterested protection of human life, to bringing military objectives within reach of legitimate attack that are not unless civilians leave, to needing the legitimacy shield of IL against an international audience with an ever better view onto the battlefield). What if warnings do not do any of this? I take your point that the facts here are subject to some disagreement, but bear with me regarding the question. If warnings consistently fail to fulfil any of their legitimate purposes, they 1) can be assumed to induce terror as they are ineffective 2) there must be a reason for why a belligerent continues… Read more »

Janina
Janina

CUSTOMARY LAW Dear Ori and Queztacoatl it is rather impossible to prove beyond contestability that a certain rule in a certain wording has the status of customary law. I think the task is less urgent though when the belligerent in question repeatedly argues that it not only adheres to but goes beyond the rules in question. The customary implications of being a voluntary human shield may be genuinely unclear. Yet, my argument does not turn on whether you come down on the side of the Israeli Supreme Court of the ICRC as I argue that the civilians who do not heed warnings cannot be assumed to qualify as such purely in virtue of remaining in their homes. Maybe we need a separate discussion of what the current conflict suggests regarding the leap from VHS to DPH, what I am concerned here is the evidentiary burden to the claim of being a VHS. I argue it must be higher than to warn and to witness that a civilian is not leaving. The obligations of proportionality and to take precautions in attack and (as I have argued above) the obligation to minimize expected collateral damage in virtue of its being bound up… Read more »

Harris
Harris

Ori is right: there is not a one-size-fits-all proportionality test, contrary to what Janina argued. The test changes when human shield are involved, even when they are involuntary. That’s what Yoram Dinstein explains in his book “The Conduct of Hostilities” (2nd edition). Louise Doswald-Beck pointed this out in her article “The Civilian in the Crossfire”. The UK Manual also accepts this approach. Yoram Dinstein also observes that under custom harm done to involuntary human shields is not taken into account when assessing the proportionality of an attack. This why the status of the First Protocol under customary law (which Israel considers itself a persistent objector to) is so important.

Gerald Steinberg

Hostage — seriously, as you write, quoting a fringe blogger (Derfner)does not help your case, nor do trite and irrelevant observations like “the mere possession of conventional weapons is not a war crime.” If you are both serious and relevant, moral logic and international law in these situations hinge on the issue of intentionality, (among other factors, such as military necessity.) In the case of Hamas, the intentionality is clear — from declarations, media broadcasts, written instructions and handbooks located by the IDF, evidence from captured terrorists, etc. The intention is to kill Israelis with missiles, tunnel under the border to kill at close range, and wipe Israel off the map. There is no ambiguity — these are war criminals. So to complete your point, “the mere possession of conventional weapons is not a war crime; the possession of weapons with the explicit objective of mass murder is a war crime.” And therefore, Janina’s initial post and follow-up, which excludes this core context, is more rhetoric than substance. In addition, among other missing data, one needs to know how many civilians would have been killed had the IDF not issued the various warnings prior to undertaking legitimate action based on… Read more »

Cannot Disclose
Cannot Disclose

SteveLaudig and everyone else who has issue with my anonymity – I apologize, because of my current employment I cannot publicly conduct discussions like this under my full identity (imagine I am a lawyer at the State Department – I am not – but something similar). I chose anonymity over silence.

Janina

Thank you for your answer. I agree, of course, that adhering to IL (or any law for that matter) has costs, which we should be willing to pay as a condition to being members of a community. I also don’t think IL has it wrong here, I think (I apologize for being blunt) that your analysis (though fascinating and thought provoking) is what is tipping the balance.

But I think this is as far as this medium will take us. Thank you for your thoughts.

Janina
Janina

Dear Harris
I strongly disagree with the notion that involuntary human shields have anything, but an unimpaired civilian status and claim to protection. There is a reason that the law distinguishes between immune and non-immune persons in a different way than between immune and non-immune objects. The location of an individual does not impair their status! You do not even need API for that argument. The Geneva Conventions have laid to rest the concept of a quasi combatant. There is nothing between a combatant and a civilian in law. The only time ever that a civilian looses protection is if she is directly participating in hostilities. While a VHS can under certain (contested) circumstances be considered to DPH, an involuntary human shield lacks all three constitutive criteria for DPH even if you interpret the concept less stringently regarding the temporal restriction than the ICRC. A civilian directly participating in hostilities can be disregarded in a proportionality calculus as their engagement may be the anticipated military advantage of an attack. I am not sure what you mean by one size fits all, but there is no circumstance under which a civilian ever counts less than one civilian in a proportionality calculus.

Hostage
Hostage

Response…Hostage — seriously, as you write, quoting a fringe blogger (Derfner)does not help your case, nor do trite and irrelevant observations like “the mere possession of conventional weapons is not a war crime.”

You asserted that possession of the rockets is a war crime, but didn’t cite any authority to support that proposition. You haven’t answered my question regarding the use of preemptive strikes by a UN member state to prevent another UN member state from obtaining defensive conventional weapons. Israel has done that on several occasions.

Larry Derfner isn’t a fringe blogger as you suggest. His bio at 972 Magazine explains “I was a columnist and feature writer for The Jerusalem Post, as well as the correspondent in Israel for the U.S. News and World Report, for many years. I wrote feature articles for the Sunday Times of London during the second intifada, and have been writing for American Jewish publications since 1990.”

Tali Kolesov Har-Oz and Ori Pomson

Dr Dill, it is indeed correct that involuntary human shields may not be the object of attack(Parks accepts this: Air War and the Law of War, 32 A.F.L. Rev. 1, 168). However, it is a separate issue when examining the excessiveness of the harm to involuntary human shields in relation to the military advantage, where responsibility lies upon the defender (Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 131 (2004)). Article 51(8) to API in relation to human shields is a novelty. As long as State practice and opinio juris does not reflect this change in approach, the law shall stay as it is.

Carrie McDougall

Last I checked, Yoram Dinstein did not dictate the laws of war. The idea that proportionality differs when IHS are involved than when they’re not finds no support in conventional IHL, and state practice hardly indicates that custom supports a more relaxed rule. To offer one example, the US unequivocally takes the position that the presence of IHS does not affect proportionality analysis.

Carrie McDougall

Ori, AP I has been ratified by 174 States. Art 51(8) is hardly a novelty.

Kevin Jon Heller

My question: when will Hamas, Europe, NGOs, and the UN stop forcing Israel to shoot terrified 13-year-old girls walking away from IDF soldiers — and then kill them by shooting them twice in the head as they lie on the ground wounded?

http://www.theguardian.com/world/2004/nov/24/israel

Tamar Meshel

Dear Janina, Thank you for your post, which I think discusses an important subject. I won’t repeat comments on the legal analysis that have already been made, but I would like to comment on the rather one-sided presentation of information. First, to even compare Israel’s and Hamas’ approach to the conduct of hostilities and protection of civilians is absurd. Israel is a democratic country that is exercising its right to self-defense against a terror organization whose declared mission and purpose is to annihilate it, at whatever cost to its own civilians. Hamas has purposefully launched tens of thousands of rockets against Israeli towns and has dug underground tunnels with the clear and stated objective of committing terror attacks against Israeli civilians. Therefore, to state that Hamas “has done little to suggest concern for human life and nothing to demonstrate commitment to international law” is a gross understatement, and to present Israel and Hamas as having similar objectives in this violent confrontation (which may have been unintentional, but is nonetheless implied in the post), distorts reality and legitimizes Hamas. Second, while every civilian who has been killed in Gaza is a tragedy, there is overwhelming evidence that the IDF has undertaken… Read more »

Alex
Alex

Kevin John Heller again reveals his biases overcome any attempt at objective legal analysis when it comes to Israel. Taking an article from 2004 as evidence the IDF as a general rule targets children is ridiculous, more so because the article cites IDF soldiers as the ones who brought the crime to light.

What would be interesting would be a real legal debate about how the laws of war ought to regulate combat with terrorists who use civilian structures and civilians as shields to target civilians. The answer, “it doesn’t change at all” and terrorists can figure out how to target civilians from places that will lead to civilian casualties such that legitimate attempts to defend oneself are a priori war crimes devalues the purpose of IHL. It cannot be that the laws of war bar a state from protecting its citizens and require it to simply give in to terrorists’ demands.

That doesn’t mean Israel has no constraints. But for IHL to be meaningful to the war in Gaza and other similarly complicated conflicts, it must give guidance that can be reasonably followed, not impossible standards that no country has ever been held to.

Pashwina
Pashwina

More than 140 scholars of international law have in a recent joint statement denounced Israel’s gros human rights violations. They agree that Israel does NOT act in self-defence but rather – being the belligerent occupying the power – committing war crimes by using excessive force.
On Israel’s tactic of issuing warnings, the experts say:
“It is inherently illegal under customary international law to intentionally target civilian objects, and the violation of such a fundamental tenet of law can amount to a war crime. Issuing a ‘warning’ – such as Israel’s so-called roof knocking technique, or sending an SMS five minutes before the attack – does not mitigate this: it remains illegal to wilfully attack a civilian home without a demonstration of military necessity as it amounts to a violation of the principle of proportionality. Moreover, not only are these ‘warnings’ generally ineffective, and can even result in further fatalities, they appear to be a pre-fabricated excuse by Israel to portray people who remain in their homes as ‘human shields’.”
For further indepth read follow http://muslimlawyer.weebly.com /blog/international-law-scholars-demand-justice-for-palestine

Kevin Jon Heller

Alex again reveals his biases overcome any attempt at objective legal analysis when it comes to Israel, as evidenced by his claim — meritless, and completely unrelated to anything I actually wrote — that “the IDF as a general rule targets children.” Hard to have a “real debate” with someone who simply attacks strawmen.

Janina
Janina

TM

I don’t see how an open ended comparison between two belligerents’ actions can ever be absurd. After all that is what Israel’s claim to the moral high ground entirely rests on.

Also, I am talking about IHL or the jus in bello here, which is independent of the reason for, legitimacy, legality, prudence or morality of a belligerent’s resort to force!!! Not that the it is not warranted to have a discussion about the morality, legality or prudence of Operation Protective Edge overall, but that is not the subject of this post!

Alex
Alex

KJH – what then did you suggest then with your post? I’m interested in what alternative reading you intended to communicate.

Janina
Janina

TM and Alex

you seem to share a concern that I would summarise as follows:

1) Israel has a right to self-defence and 2) Hamas breaks the law by commingling and using human shields, ergo Israel should be subject to different/weaker/reinterpreted/changed laws…because now Israel is damned if…

Let’s accept this as a hypothetical, what if violating IHL were the only way a legitimate claim to self-defence could be validated by military means? Could we have a more relaxed legal regime for the side that is, as it were, in the right? Or could we give dispensation from following the law?

Law can regulate its own exception only in the institutionally most dense environments, in which ‘access’ to the exception is effectively adjudicated. International relations, specifically regarding the use of force lack the requisite adjudication mechanisms. Any relaxed IHL or liscence to violate IHL supposedly reserved for the legitimate defender would be the only law ever applied and become the bottom line of permissible conduct.

‘Permissible under IHL’ for the just defender can only be that conduct which we want the unjust, illegal belligerent to get away with as well. In the current international order that is humanity’s best bet against unrestrained warfare.

Tamar Meshel

There is no doubt that intentionally targeting civilians is illegal, unlawful, and immoral. But one must be careful in attributing such intention and reaching legal conclusion on its basis. It is important to point out in this regard that some of the UN Fact-Finding Mission Report on the Gaza conflict in the aftermath of Israel’s ‘Operation Cast Lead’ in 2008-2009, which is extensively referenced in the expert statement, was in fact retracted by its own author, Richard Goldstone, who later stated that the U.N. committee’s report “indicate that civilians were not intentionally targeted as a matter of policy” by the IDF, while “the crimes allegedly committed by Hamas were intentional goes without saying.” (http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html) The same applies to the current operation. It is also difficult to see how Israel can be accused of deliberately targeting civilians when at the same time it offers them emergency medical care in field hospitals established on the border or in Israeli hospitals, and the IDF air strikes of military targets when civilians are identified. While the civilian deaths in Gaza are horrible and the humanitarian situation there is horrific (a situation, by the way, which Israel has attempted to alleviate with several humanitarian cease-fires… Read more »

ex-Bronx
ex-Bronx

There are two distinct issues which bother me in the context of the discussion. 1. Different Rules for Israel. Example: The US silenced various wedding parties and social gatherings during the war years in Afgan and Iraq, (oops we made a mistake) via missile with a simple apology sometimes about “regrettable civilian losses.” Yet the US State Dept is “concerned” about civilian casualties in Gaza. I dont ever recall a US Defense Sec’y feeling bad for all the civilian casualties. No one seems to care about Assad and his butchering of Syrian civilians. Ditto, numerous other situations. I think there is a real double standard. If you read talkbacks on major global media you will see that many “liberals” chastise Israel for the “human suffering” and their hearts truly melt for the residents of Gaza but then opine that “Hitler was right.” While not all anti-Israel comments are driven by anti-semitism, lets face reality, many times anti-Israel sentiment is driven by anti-Jewish feelings. 2. Hamas Are Thugs Hamas has clearly looted the aid money given by global donors. Rather than this money being used to improve the lot of Gazans, they have stolen it for purchases of weapons as well… Read more »

Kevin Jon Heller

The Israeli govt is obligated to defend its citizens. Many of those screaming “bloody murder” about the civilian casualties are hypocritical liars for whom 10 holocausts would be 10 too few. The Israelis are being held to a double standard.”

Why do the trolls always eventually show up at Opinio Juris? They should stick to NewsMax and World News Daily where they belong.

Kevin Jon Heller

Dear “Ex-Bronx”:

Name one liberal who has ever said “Hitler was right.” If you can’t, go away.

Gerald Steinberg

1) Janina Dill: “When Hamas advises civilians to ignore warnings the IDF asks us to believe that the motivation is to use civilians as human shields, not to avoid panic and mass displacement as Amnesty International suggests might be the case.” Amnesty as an org or its “experts” are certainly not authorities on international law. They are political advocates that cherry pick legal rhetoric and raise money to perpetuate what’s left of a dying and corrupt institution.

2) Heller resorts to name-calling because he has nothing useful to write.

3) “Hostage” cannot distinguish between aggression (Hamas, Hezbollah, N. Korea, Putin, Bin Laden) and a state’s (Israel, Ukraine, US etc.) obligation to protect its citizens from this aggression. He/she cannot even bring her/himself to mention the word Hamas. By this illogic, the mafia’s possession of AK-47s and dynamite would be “legal”, “justified” and even qualify as “defensive”. Any legal framework that is exploited for immoral ends has no legitimacy.

Kevin Jon Heller

Only “Gerald Steinberg” — whom I am now convinced is actually Stephen Colbert — can call AI a “dying and corrupt institution” in one paragraph and then criticize me for “name calling” in the next paragraph. (For labeling someone a troll who claims liberals want 10 Holocausts.)

Priceless.

Yaniv
Yaniv

Article 19 of the fourth Geneva convention states the following:

“The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.”

The article above offers an interpretation that rips Article 19 (as well as a few other specific provisions) of its content. It may be true that the wounded, the sick, and the medical staff do not have any positive obligation to leave the facility after a warning, but that still doesn’t mean that the hospital hasn’t become a legitimate military target after such a warning is given.

ex-Bronx
ex-Bronx

KJH,
You are taking my comment out of context. I did not say liberals I said “liberals”. You know very well what I meant. The point is if you take any major online media portal you will see that many comments shed tears for the civilian injuries in gaza and then add a line or two about “Hitler should have finished them off”, or “too bad jews survived WW2” or “we fought on the wrong side, the Nazis were right”. These comments indicate that many (not all) anti-Israel comments are really anti-Jewish motivated ones.
Separately, if you have a rebuttal to Gerald by all means make one; you dont have to joke that he is Colbert. This is a serious topic isnt it? Or do you use it as a platform to make fun of people you disagree with. Very mature.

Gerald Steinberg

More context: Today, under the facade of a “humanitarian ceasefire”, Hamas forces (“militants”) emerged from a 30m deep tunnel to attack and kill Israeli soldiers along the Gaza border. A Israeli was reportedly kidnapped (not clear if dead of alive) and the IDF is searching for him.
In 2004, Human Rights Watch published and Ken Roth promoted a highly tendentious “report” – Razing Rafah: Mass Home Demolitions in the Gaza Strip – which erased the deadly tunnels. Ten years later, the results are clear.

Dr Florina Tufescu

Thank you so much for this brilliant article which demonstrates the complete illegality of Israeli attacks and the fakery of the so-called other side, as represented here by a couple of anonymous …government agents, I imagine?

It should be required reading for all politicians and anyone who claims or genuinely believes (if such people still exist…) that there are two sides to this story of utter and unacceptable cruelty and barbarism…..

(Dr:) Florina (tufescu)
dr_flow-er on twitter.com
florina [dot] tufescu [at] gmail [dot] com/skype.com