The Tuesday meeting of Palestinian Authority Foreign Minister Riad al-Malki with the International Criminal Court Prosecutor’s Office is likely far less significant than it seems.
First, the Palestinians threaten over and over again to file complaints against Israelis in the ICC, but have consistently failed to pull the trigger.
Also, though “Palestine” can probably overcome the statehood obstacles that blocked the Palestinians from filing war-crimes complaints against Israelis after Operation Cast Lead (2009), there are a myriad of other obstacles that could prevent an investigation, let alone a conviction.
But in the unlikely worst-case scenario where the PA somehow manages to overcome the many substantial difficulties, has the IDF just discovered a golden defense to war-crimes allegations in a “captured” Hamas manual it posted Tuesday? According to the IDF (and confirmed independently by CNN), the posted pages of the manual focus on urban warfare, and discuss the benefits to Hamas when its own civilians’ homes are destroyed.
It has two salient points relating to war crimes: The army said the manual reveals that Hamas recognizes the IDF is committed to minimizing harm to civilians and explains how civilians can be used against it.
Based on these two points, the IDF said that Hamas’s callous and systematic use of the Gazan population as human shields was intentional and preplanned.
The IDF said that in a section called “Limiting the Use of Weapons” the manual explains that IDF “soldiers and commanders must limit their use of weapons and tactics that lead to the harm and unnecessary loss of people and civilian facilities. It is difficult for them to get the most use out of their firearms, especially of supporting fire.”
The IDF concluded that Hamas knows the IDF will limit its use of greater firepower in support of infantry weapons in order to avoid harming civilians.
The manual goes on to explain that the presence of civilians among pockets of resistance causes three major issues for army forces: problems with opening fire, problems in controlling the civilian population, and problems assuring civilian medical care.
Lastly, the manual discusses the benefits for Hamas when civilian homes are destroyed: “This increases the hatred of the citizens toward the attackers [the IDF] and increases their [support] around the city defenders [i.e. Hamas].”
The IDF concluded that this proves that Hamas desires the destruction of homes and civilian infrastructure, knowing it will increase hatred for the IDF and support for Hamas fighters.
Back to the worst-case scenario where Israelis find themselves defending specific targeting decisions from warcrimes allegations.
From one perspective, the manual, while a potential PR coup, is not a concrete legal defense.
Just as Israel often points out that its soldiers cannot be accused of war crimes on the basis of a general civilian casualty total, but only on the specific circumstances of the targeting incident in question, any defense should be specific to a particular incident – and the manual is not.
However, the record of international war crimes tribunals is that specific cases are not decided in a vacuum.
Often a general factual picture is established about whether war crimes were or were not systematically taking place, which, correctly or not, influences how the judges interpret borderline evidence in specific cases.
The manual does not allege a single specific incident where Hamas used human shields in a way that justified a specific IDF attack that should have been illegal.
But the manual, which the IDF said belonged to Hamas’s Shejaia Brigade, does support the IDF’s general narrative of Hamas using human shields in a way that at least could convert certain civilian areas into military targets throughout Shejaia – where the IDF has been broadly accused of a massacre.
It shows that Hamas is educating its fighters about the benefits of fighting among its own civilians and that it tells its fighters to view destructions of its own civilian homes as increasing its support.
The manual also shows that Hamas itself believes that the IDF is trying to follow the rules of armed conflict to such an extent that it inculcates in its fighters tactically and concretely how to exploit this to gain certain military advantages.
To the extent Hamas would be the complainant before the ICC, the manual could be a powerful part of a general defense supporting Israel’s overall claim to following the laws of armed conflict when a judge has to decide to believe Israel about whether Shejaia civilians were killed by mistake or deliberately.