Among the around 1,000 military targets of the strikes carried out by the IDF in
Operation Pillar of Defense in the past five days have been police stations,
media locations and political buildings.
The first question related to
the legality of attacking a specific target is regulated by Article 52 and the
related articles of Protocol I of the Geneva Conventions.
The article
itself is quite complex, but basically it says that one cannot attack a target
which is not military in nature.
Although Israel is not a party to
Protocol I, the IDF has said that it consistently makes sure that it complies
with its general provisions, including Article 52.
Police stations are
generally viewed as only relating to internal law enforcement issues and not
considered military in nature. Media stations and political buildings likewise
appear to be inherently nonmilitary, fulfilling information and governance
functions only.
How is it that these types of places have become targets?
According to a July 2009 Foreign Ministry publication on Operation Cast Lead, of
Hamas’s approximately 30,000-strong military force, 13,000 were internal
security forces, including police.
In times of battle, Hamas has
considered the police forces an integral part of its military forces and they
have been directed to aid in fighting the IDF, even at the expense of preserving
internal public order.
The report also indicated that Hamas police
possessed not only assault rifles, but also hand grenades and anti-tank weapons.
Similarly, Hamas’s naval police had a record of, and responsibility for, firing
on Israeli naval patrol and attack boats.
To the extent that initially
non-military locations make “an effective contribution to military action,” they
can become valid military targets.
Intelligence would need to have
confirmed that the above trends regarding Hamas’s police force were still in
effect more recently, but presuming such confirmation, the police stations could
be valid military targets.
Political buildings that are primarily used
for governance, but are also used for other purposes – including military
planning – can also move from the non-military side of the coin to the military
side.
Media installations are somewhat more complicated. Not only are
they initially presumed not to be military targets, but the motivations for
attacking them lead to different legal conclusions.
For example, in 1999
the US was heavily criticized for attacking a television station in the former
Yugoslavia. The criticism was that it had attacked the station simply because it
broadcast propaganda for the Yugoslav government.
The US military
responded that not only had the station been used for broadcasting propaganda,
but the Yugoslav government had also made dual use of it, including the station
within its command and control network.
Experts commissioned by the
International Criminal Court of the former Yugoslavia found that the station was
a valid target, because it had been used for command and control functions.
However, the experts also questioned the validity of targeting a media station
simply because of its propaganda use.
Still, if, as in the case of the
Rwandan genocide in 1994 – when a government radio station called for the Hutus
to attack the Tutsis and often even informed of the whereabouts of Tutsis – one
could demonstrate that a media station was used directly for inciting the
population to violence and not merely for general propaganda, more commentators
would accept considering the station a valid military target.
After
deciding whether the above installations have changed from their default state
to becoming military targets, the rule of proportionality comes into
play.
The IDF on Sunday hit SkyNews Arabia and Al-Arabiya and injured a
group of journalists in the process of targeting what it said was the antenna of
a station being used by Hamas to facilitate terror operations.
This
“collateral damage,” aside from being obviously regrettable from the perspective
of civilian casualties, is also highly embarrassing to Israel, because of the
prominence and voice of these media outlets.
Despite all of the above –
while the ultimate result may even lead the IDF to question whether hitting the
alleged Hamas antenna was worth the very problematic public relations
consequences – there is nothing illegal per se, according to the rule of
proportionality about collateral damage, if the target was important enough
militarily, and in light of the fact that so far only a small number of injuries
have been reported.