Issues surrounding the IDF’s targeting of media centers in Pillar of Defense
remain on the legal agenda of the International Federation of Journalists.
By YONAH JEREMY BOBOffice of Hamas’s al-Aksa television channel 370(photo credit: Majdi Fathi/Reuters)
More has started to emerge about whether the IDF’s targeting media antennas and buildings in the last Gaza war was legal. So although it will still take some time for the picture to fill out, the debate is on regarding at least six incidents.The International Federation of Journalists (IFJ) is encouraging a UN investigation and accusing Israel of deliberately targeting journalists, while Israel claims it was targeting terrorists or military targets.IFJ Human Rights representative Ernest Sagaga said that even if terrorists were using an antenna on a building or if there were terrorists in the building, the IDF still could not attack media facilities if there were innocent journalists inside.The IDF has claimed that Hamas was using an antenna the army attacked on top of a media building on November 18, and that four Islamic Jihad terrorists were in a building it attacked on November 19.Sagaga based his claim on language from Protocol I to the Fourth Geneva Convention and UN Resolution 1738, which say that civilians remain protected as long as they themselves (as opposed to third parties) do not take any action adversely affecting their civilian status.At the same time, he said the IFJ “would unreservedly condemn any attempts” by third parties “to endanger the safety of journalists by turning their place of work into a military target,” while indicating that the IFJ had no evidence that terrorists were inside media facilities during the disputed incidents.A question for the IFJ would be: Is it really capable of knowing all the time whether terrorists have clandestinely infiltrated its facilities? This is an especially tough question if, as the IDF claims, some Gaza journalists play journalist and terrorist alternately – a claim the IFJ has vehemently denied.Regarding the IDF claim that terrorists were using the building’s civilian status to hide themselves or their use of the building’s antennas behind journalists as “human shields,” Sagaga said the “claim raises more questions than it offers answers to, such as what role the army considered these ‘terrorists’ were playing inside the buildings.”He may have been alluding to the argument of some legal scholars that if there was no evidence that the terrorists were engaged in combat and were merely meeting, even targeting them in a civilian media facility might have violated the proportionality principle.The argument goes that even a military target may not be targeted if the risk to civilians at that moment outweighs the military advantage.He said that “everyone will agree that a missile, however surgical and precise, will not just hit the antenna and bounce back in the air. It will most likely take out chunks of the buildings and cause serious risk of harm to those inside.”As such, he said, “the IDF defense would command more credibility if, at the very least, they had warned those inside those buildings to evacuate before launching their attacks.”The IDF said it always issues warnings, but the IFJ said there had been no warning of this particular attack.Assuming that terrorists were in the targeted building on November 19, the IDF can respond that International Committee of the Red Cross commentary to Article 28 of the Fourth Geneva Convention makes it clear that if an adversary uses human shields, one can attack the adversary anyway, provided that the proportionality rule is followed.The commentary clarifies that this applies equally to “resistance movements” and “small sites” as well as formal militaries in wide areas.Foreign Ministry Spokesman Yigal Palmor said that the overall pervasive Hamas tactic of using “human shields” was key in deciphering the real facts in these controversial incidents.He noted that “Hamas hides behind civilians” regularly, “fires rockets into civilian areas” and “publicly takes pride in carrying out military operations using civilian facilities.”Palmor was asked about the IDF claim that Hamas used the media facilities as “human shields,” considering there had not been reports that Hamas physically moved individual journalists into the line of fire.He responded that Hamas’s “use of civilian media facilities is tantamount” to using the facilities the way it uses individual civilians as human shields.The question is even more complex when it comes to the November 18 antenna attack.The same UN Resolution 1738 that the IFJ cited for protecting journalists and their equipment contains an exception if the equipment becomes a military objective.Hebrew University Law School president and international law expert Yuval Shany said that the legality of the attack would depend on what the antenna was used for militarily.Simply passing on general hate propaganda might be problematic and in some cases reason for arrest and prosecution, but for the army to attack the antenna, it would need to have been used for military communications purposes. Otherwise it would not provide a “concrete military advantage” as required under the law of armed conflict.Even if it were being used for military broadcasts, a simpler and possibly more proportional solution could have been to jam the transmission, which could have prevented what the IFJ claimed was damage to several floors below the antenna.On the other hand, the IDF can point out that while it strives to use the least dangerous munitions or tactics possible when attacking targets near civilians, the law of armed conflict does not demand use of one tactic over another, and relies more on general principles.What will happen next is unpredictable.The IFJ is seeking a UN and independent investigation.There is certainly precedent for these investigations, including the 2009 Goldstone Report after Operation Cast Lead and Israel’s own Turkel Commission. But with no ground invasion, there are fewer reported incidents of civilian casualties and buildings being hit, and there may be less public pressure for an inquiry.If there are further demands on the IDF and Israel to investigate the media incidents, Shany said, who investigates should depend on who approved the strikes. If a midlevel military lawyer approved them, then a different IDF lawyer who was not involved in the approval could perform the investigation.Shany is not one of those opposed to the IDF investigating itself in all circumstances.But he suggested that if the attacks were approved at a higher level, there should be an independent inquiry, since if lower-level officers then had to perform the investigation, he doubted they would be willing to criticize their superiors’ decisions.The media incidents are likely far from being a Goldstone II, but it is also likely that the story surrounding them is far from over
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