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