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

by Janina Dill

[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.

http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/

69 Responses

  1. 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 .

  2. 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!

  3. Jens, I agree this part of Article 57 is also highly relevant. What we are talking about is the necessity of expected collateral damage: The expected collateral damage of an attack was necessary for the achievement of the (independently legal military advantage) in that it could not have been further reduced either by the means and methods of attack (Para 2(a) ii) or indeed by the choice of an alternative target of attack (Para 3).

    I don’t mention it here because I argue (in some more detail in the book) that necessity is a condition of proportionality. As expected civilian harm and anticipated military advantage are values that can be neither expressed in terms of each other nor translated into a common metric there is no natural ‘state of balance’ or proportionality between them. As a result any expected collateral damage can only qualify as proportionate if it was indeed necessary. Necessity is a logically necessary though not sufficient condition of proportionality.

    The Israeli Supreme Court has argued similarly that this ‘least injurious alternative’ criterion is part of proportionality. So I don’t think states can evade the obligation to minimize expected collateral damage (beyond making sure it is commensurate or proportionate strictu sensu) by not ratifying API.

    But I accept that this position is not universally accepted. Does that make sense?

  4. 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 voluntary human shields?

    I think that the right to consider voluntary human shields as combatants in certain circumstances, necessarily means that to not be counted voluntary human shields, civilians have a duty not to willfully place themselves in a place where they know an attack is imminent (I realize that I am freely moving between action and omission here, but I do not think this distinction has any merit in this analysis).

  5. 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.

  6. 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).

  7. 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.)

  8. 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 on by Israel, which in my view are not a legitimate military target), then I think your list of legitimate reasons to stay becomes a lot shorter than you originally suggest.
    .
    That is, I think that the reasons for staying need to be weighed against the military value of the target. I’ll give an example:
    .
    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?

  9. 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.

  10. 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.

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

  12. 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 it be better if Israel not use this system at all? Or rather, is the real underlying claim that it shouldn’t have embarked on this operation in Gaza to begin with (a claim that I think I might agree with)?

    Actually, I think the last point raises a question regarding the general discourse. We are trying to breathe into IHL a type of “deep” morality that I’m not sure it has, or can realistically have (since IHL is about regulating war, which is almost always immoral in itself – and I think you agree with this proposition). If we are talking about just-war then of course there is a lot to say about these issues.

  13. 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”.

  14. 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.

  15. 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 have gained acceptance by the practice of the international community and become part of customary international law. The Israeli High Court has ruled that these customary international law rules bind Israel under both international law and Israeli law.(8) In particular, Israel’s High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organisations, including Hamas, Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention,(9) (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions on 1949.(10) Israel is not a party to the Additional Protocol I, but accepts that some of its provisions accurately reflect customary international law.(11) http://goo.gl/ew2lW4

  16. 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.

  17. 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.

  18. 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.

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

  20. 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: Accepting that the conduct of hostilities is subject to regulation by international law means accepting that occasionally that law will interfere with the effective pursuit of military objectives. A belligerent wishing to avail itself of the considerable legitimacy that ‘compliance with IL affords needs to accept that. If at the first instance in which a belligerent discovers that a legal obligation means that a specific military objective is off limits, the conclusion is that the law must be wrong, reinterpreted or weakened, we do not need law for the conduct of hostilities to being with.

    As an objective (the missile workshop) is by no means immune from attack simply in virtue of civilians being present (upstairs), I don’t think IL ‘gets the balance wrong’ here. After all, a belligerent has considerable freedoms under the principle of proportionality to forseebly kill civilians that for whatever reason are in, on, or near a military objective.To simpluy discount them as VHS you need more intelligence than their presence.

    Sometimes the law works to promote military pragmatism against our moral intuitions (you may kill the women and elderly person she is looking after in the second floor over the missile workshop if the military advantage is significant enough, even if they are merely there because they could not possibly leave). Sometimes the law works to interfere with the pursuit of legitimate military objectives (a missile workshop is off limits because a 10 member family lives above it and there is no way of saying that they not welcome their shielding effect on the workshop.) The belligerent who abandons, weakens or reinterprets the law in the second instance does not deserve its legitimacy shield in the first.

  21. 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?

  22. 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 to use them.

    I am with you, we need more evidence than simply the practice and its ineffectiveness itself to allege that the (primary) purpose is inducing terror. But the question needs to be raised.

  23. 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 both with proportionality and precautions in attack) are as uncontested a part of customary international law as there is. The authorities you mention back that up!

  24. 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.

  25. 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 military necessity.
    Finally, Shmuel, it is clear that moral and legal responsibility for turning Hamas-controlled Gaza into an armed fortress for aggressive and illegal activity lies first with Hamas, second with the countries (Europe) and NGOs that coerced Israel into allowing the transfer of cement for this illegal purpose; third with missile suppliers Iran and Syria, and fourth with officials of UN bodies such as UNRWA and OCHA, which have cooperated closely with Hamas.

  26. 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.

  27. 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.

  28. 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.”

  29. 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.

  30. 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.

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

  32. 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

  33. 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 every precaution at its disposal to prevent such deaths, including but by no means limited to, prior warnings of attacks. To suggest otherwise on the basis of a random statement by an Israeli politician, as unfortunate as it may be, which does not reflect the stated policy of the Israeli government or represent the majority of the Israeli population, does nothing but weaken your legal argument. Finally, placing a party to an armed conflict in a position of “damned if you do and damned if you don’t” with respect to prior warning undermines this established IHL obligation and may place civilian lives in even greater danger in this and other conflicts.

  34. 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.

  35. 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

  36. 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.

  37. 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!

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

  39. 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.

  40. 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 that Hamas has refused to accept), to accuse Israel or the IDF of intentionally targeting civilians when there is clear evidence to the contrary is simply false and misleading.
    The fact that many refuse to believe the obvious, albeit astonishing, reality, that Hamas is hiding its weapons, military headquarters, or ‘death tunnels’ into Israel, in private homes, schools, mosques, and UNRWA shelters, and has thereby turned some of these into legitimate military targets, does not make it any less real.

  41. 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 as a huge amount of investment in concrete for tunnel construction. This conduct is typical of thugs. I have little doubt the senior figures have become quite wealthy and have probably stuffed bank accounts in the Gulf.
    3. Hamas War Crimes Are Ignored
    Indiscriminate firing rockets into Israeli civilians is legitimate?
    Using child labor to build tunnels is okay?
    Storing rockets and guns in UN facilities is acceptable?
    Conclusion
    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.

  42. 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.

  43. Dear “Ex-Bronx”:

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

  44. 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.

  45. 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.

  46. 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.

  47. 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.

  48. 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.

  49. 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

  50. Response…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.

    In reality, my comments here, at EJIL Talk!, and at Mondoweiss have routinely condemned Hamas for war crimes and called for the prosecution of the responsible individuals on both sides of the conflict who target the respective civilian populations in the absence of any apparent military objectives. FWIW, the customary definition of the crime of aggression makes it inapplicable to non-state actors. The International Law Commission noted that: An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.” See the report of the International Law Commission on the work of its 48th session: http://goo.gl/PH4oND

  51. Hostage “FWIW, the customary definition of the crime of aggression makes it inapplicable to non-state actors.” Exactly, which divorces the technical legalese that NGOs like Amnesty and HRW, the UNHRC etc. repeat ad infinitum from the central moral principles. How do such statements provide citizens with protection against mass terror from a non-state actor? If you cannot answer this, there is no substance to the discussion.

  52. Janina, I appreciate your post and taking seriously what I think are mainstream criticisms of IHL.

    IHL, due to the lack of sufficient reasoned elaboration through adjudication or other means of setting detailed standards, provides only broad guidelines such as proportionality, but does not provide specific guidelines as to what that that means under every circumstance. It cannot be that the default position of IHL due to insufficient adjudication is that any complicated conflict is bound to violate the laws of war due to the very lack of requisite adjudication mechanisms.

    Moreover, accepting your hypothetical, that would suggest there is something wrong with IHL, not the actions taken by a state during war.

    If the ultimate goal of IHL is to decrease civilian casualties and misery it doesn’t make sense for IHL to not provide credible guidance to a state facing a threat to its citizens. Law is meant to shape action, not simply create liabilities.

  53. KJH – I’m still interested in what you meant other than “the IDF as a general rule targets children” by your 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?”

  54. More context: Today, under the facade of a “humanitarian ceasefire”, Israeli forces fired on and killed four Palestinians in Rafah.

    Even Fox News notes — accurately — that the attack on the soldiers and the kidnapping took place after the Israeli tank fired on the Palestinians:

    http://www.foxnews.com/world/2014/08/01/gaza-crisis-humanitarian-cease-fire-underway/

  55. Alex,

    I was simply using one of the most notorious IDF war crimes (in 2004) to mock the claim by “Gerald Steinberg” that everyone on Earth other than Israel is responsible for the many deaths Israeli forces have caused in Gaza. I was not claiming (nor do I believe) that the IDF has a general policy of targeting children.

  56. Yaniv,
    the article is not about Article 19. There is no doubt that under certain circumstances civilian objects, including those specifically protected, can become military objectives… That transition cannot be affected by warnings alone, is what the article is about (among other things).

  57. Despite what you say Janina article 19 does introduce a significant problem for the whole argument. Its second part states:

    “The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered to be acts harmful to the enemy.”

    If this is the protection IHL offers a hospital (which is being used for military purposes) then the whole issue of proportionality seems to play a very minor role. Why then bother with the question of whether a family that decides to stay near a rocket factory remains protected under IHL?

    I agree that the IDF should do its best not to heart uninvolved civilians. But if after a warning civilians remain near a legitimate target (voluntarily or not) then the IDF can bomb it regardless of their presence nearby.

  58. The meta-question is whether LOAC and IHL are anything more than intellectual enterprises that entertain a few academics and members of the legal profession, or “war by other means” waged by the dictatorial regimes that make up the majority of the UNHRC and via other institutions (ICC, ICJ) etc.? If, as the evidence indicates, debates on LOAC and IHL are the 21st century theological equivalents of “how many angels can dance on the head of a pin”, this should at least be acknowledged. The debates would continue, with the realization that they are unconnected with the real world.

    Similarly, regarding implementation, if, as the evidence indicates, LOAC and IHL are invoked entirely selectively in order to target selected belligerents (i.e., Israel), with no hope of encompassing and limiting the actions of other belligerents (Russia, Syria, Iran, North Korea) or non-state actors (Hamas, Hezbollah, ISIS, etc.), this must also be acknowledged. Double standards and selective implementation of universal moral principles (as in the case of the Universal Declaration of Human Rights) is itself immoral, as seen in the UNHRC. The same applies to NGO activities that reflect personal ideological agendas (i.e., post-colonialism) and obsessive attacks as seen at HRW (particularly Ken Roth and his acolytes), Amnesty International, FIDH, etc. In these cases, LOAC and IHL, as well as the institutions intended to promote these values, are systematically perverted and used to fuel conflict and justify immoral behavior.

    Indeed, any legal system that ignores the fundamental principle of reciprocity (or as is often the case in the faith-based school of international law, whose adherents often invent transparent justifications) remains theoretical and confined to classrooms in legal philosophy and debating societies. In the real Hobbesian world of sovereign states, international anarchy and “the war of all against all”, claims that key aspects of international law “do not encompass non-state actors” are patently absurd – they are the equivalents of the charter of the flat earth society.

  59. Response…How do such statements provide citizens with protection against mass terror from a non-state actor? If you cannot answer this, there is no substance to the discussion.

    The fact that the crime of aggression doesn’t apply to non-state actors hardly makes attacks on a civilian population lawful in the absence of any military objectives. It’s odd that you don’t complain about all of the advantages that international law gives to state actors which are denied to non-state actors. For example, the Palestinian Arab communities of Israel cannot bring charges of apartheid against the State of Israel in the ICC, unless they are first recognized as a state. This despite the fact that the ethnic communities of Palestine were recognized and were the subject of international guarantees ever since the time of the Treaty of Berlin and the LoN mandate. How does international criminal law protect them against outrages like the Prawer plan so long as the US will veto any referral to the ICC? I don’t hear you complaining about that situation.

  60. In response to my analysis of faith=based LOAC and IHL discussions (“how many angels can dance on the head of a pin”) and the requirement for reciprocity, you avoid this basic reality. Instead, you change the subject, asking “How do such statements provide citizens with protection against mass terror from a non-state actor? If you cannot answer this, there is no substance to the discussion.”

    What makes your tendentious question the definition of “substance”? And then you add a series of opinions, to which you are entitled, but not be confused with substance. Indeed, your response simply provides further evidence that the high priests of LOAC, IHL etc. are warriors attacking their enemies by other means.

    First non-sequitur: “How do such statements provide citizens with protection against mass terror from a non-state actor?” Answer: No words protect citizens from mass terror — defense forces do that by destroying the weapons of war. If LOAC and IHL do not assist in protecting civilians, they are useless or counterproductive.

    Second non-sequitur: “The fact that the crime of aggression doesn’t apply to non-state actors hardly makes attacks on a civilian population lawful in the absence of any military objectives.” And what evidence do you have of attacks on civilians in the absence of military objectives”? And no, terrorist propaganda repeated by know-nothings like Ken Roth or Chris Gunness is not evidence of the absence of military objectives. If you erase the massive terror tunnelling under Gaza and 9000 rockets, including those stored in and fired from UN facilities, this discussion is in fact, without substance.

    Third non-sequitur: “It’s odd that you don’t complain about all of the advantages that international law gives to state actors which are denied to non-state actors. For example, the Palestinian Arab communities of Israel cannot bring charges of apartheid …” To score cheap political points, you confuse minority status with apartheid, and exploit the real suffering and war crimes of South African Apartheid. More empty rhetoric under the guise of international law as discussed in my post.

    However, I appreciate the exchange — as I add more examples in my book on the facade of international law, this discussion is helpful.

  61. Gerald S i wish to offer you my regards and thanks for your neutral, factual and balanced contributions to this discussion. As a student of International Law it is refreshing to see an argument constructed based solely on International Law and what the law states. So many self proclaimed experts visibly try to use cherry picked clauses and pieces of international law in an obvious attempt to distort their meaning for their own baised political opinion. I and many others studying International Law could do without these rediculous attempts to target individual parties and would benefit hugely by these discussions remaining in the arena of the law applies to all and that one should not distort clear legal clauses to try and bend them into a weapon to prevent states or parties from acting in self defense against aggression from a non state actor. Thank you for making the legal point of view clear for those of us who are not here to troll.

  62. I can’t help but wonder, what’s the evidence to state the warnings have not saved any civilians? Am I to believe that press reports stating quite clearly that thousands of them did heed the IDF’s warnings and left the affected areas are false or that a comparable number of civilians (or less) would have been affected by the hostilities if Israel has not warned them?

    Furthermore, if Israel had not warned Palestinian civilians prior to the attacks, would have some condemned it for not doing so? It seems to me that it doesn’t really matter whether Israel cares about Palestinian civilians or not, in practice it will be condemned under all circumstances anyway for what seems to be inherent to urban warfare in the 21st century.

  63. The two intelligent posts from “Anon” and “legal student” reflect the need for much greater discourse and criticism of the international law orthodoxy which ignores core requirements such as reciprocity. Janina Dill would be well advised to rethink her analysis so that is applicable to real war situations where choices must be made, and where core national security interests and many lives are at stake. The essay by Charles Dunlop at Just Security is a good example: http://justsecurity.org/13781/charles-dunlap-lawfare-hamas-gaza/

  64. Janina,

    You write:

    “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?”

    You are ignoring the obvious third possibility: where the only way a legitimate claim to self-defence could be validated by military means is through a strike on a legitimate military target that will necessarily include collateral civilian damage, the proportionality inquiry is satisfied so long as the collateral damage is no greater than necessary to strike the target.

    Thus: no special exemption to the laws of proportionality, no “weaker, watered down laws applying to Israel [or any other country in the same position]” – the circumstance you are describing is simply taken into account in the proportionality calculation itself, and the strike is not a violation of IHL at all.

    (Again, as you noted above, the limitation of necessity inherent in proportionality would still apply; the target would need to be struck using means calculated to minimize, to the extent possible, unintended but inevitable civilian casualties).

    This approach seems to neatly avoid the dilemma you are proposing, as it neither countenances violations of IHL nor allows a belligerent to strip its opponent of the right of self-defence by committing war crimes of co-location.

  65. Janina:

    You write:

    “the article is not about Article 19. There is no doubt that under certain circumstances civilian objects, including those specifically protected, can become military objectives… That transition cannot be affected by warnings alone, is what the article is about (among other things).”

    Indeed, and that is a fundamental flaw in your article: you are attacking a straw man. Nobody – least of all the IDF – contends that issuing a warning “transforms a civilian object into a military objective.”

    To the contrary, the warnings are issued because the IDF has already classified a site as a military objective, and therefore intends to attack it (as the warning informs nearby civilians). Whether you agree with that classification (or even whether it is accurate objectively) is beside the point. The question isn’t whether warning transforms a civilian object into a military target, but whether warning given of an attack on a military target impacts the proportionality calculation by minimizing the number of civilians who can reasonably be anticipated to be killed by a strike on said military target.

    Your article does not seem to address that question (particularly in light of numerous media reports of people actually fleeing due to warnings, which would seem to give the IDF reason to believe warnings *do* decrease the likelihood of civilian casualties – which likelihood is, of course, central to the proportionality calculation)

Trackbacks and Pingbacks

  1. […] 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/ […]

  2. […] be sure there are still plenty of legal scholars critical of Israel’s Gaza offensive. A few even decry its high-tech efforts to warn civilians as somehow being a cynical form of lawfare itself. For its part, the Israeli Defense Forces are […]

  3. […] by the work of Janina Dill (Politics and International Relations, Oxford) – particularly her discussion of Israel’s development of ‘Lawfare 2.0′ in relation to Gaza – and, as I say, […]

  4. […] be sure there are still plenty of legal scholars critical of Israel’s Gaza offensive. A few even decry its high-tech efforts to warn civilians as somehow being a cynical form of lawfare itself. For its part, the Israeli Defense Forces are […]