What does int'l law say about bombing homes used to fire rockets?

Legislation barely addresses wars against terrorist organizations.

By DAN IZENBERG
idf artillery gaza 29888 (photo credit: AP [file])
idf artillery gaza 29888
(photo credit: AP [file])
Defense Minister Ehud Barak is due to hold a meeting on Monday morning with Justice Minister Daniel Friedmann, Attorney-General Menahem Mazuz and senior Defense Ministry and army lawyers to discuss the legality, according to international law, of attacking military targets in densely populated residential areas. During Sunday's cabinet meeting, Barak asked Friedmann for his opinion on the matter. In the last few days, news agencies have photographed rockets heading toward Israel from homes in such densely packed areas. In an interview 10 days ago with Yediot Aharonot, Friedmann said, "Many areas of international law are vague. They can be interpreted in different ways. The situation in Gaza, for example, has no parallel anywhere else in the world. It's all open. So there are interpreters who want to interpret the law in such a way as to limit us as much as possible, and there are interpreters who are more convenient for us." The dilemma facing Barak in Gaza is not a new one for Israel. The pictures of Kassam or Grad rockets sailing out of dense urban neighborhoods where houses often stand centimeters away from one another are just a new version of an old problem. The government often faced similar situations during the second intifada and the Second Lebanon War and was often harshly criticized for the decisions it made. But international law barely addresses wars against terrorist organizations. It primarily deals with armies representing countries fighting against each other. The application of international law to wars against terrorism is problematic. According to Human Rights Watch, "the two fundamental tenets of international humanitarian law are those of 'civilian immunity' and 'distinction.' They impose a duty, at all times during the conflict, to distinguish between combatants and civilians and to target only the former." Thus, a party to an armed conflict may only direct its operations against military targets. According to the 1977 First Additional Protocol to the Geneva Conventions, "military objectives are combatants and those objects which, by their nature, location, purpose or use, make an effective contribution to military actions and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." According to this definition, a residential home used by terrorists to fire rockets is a military target. Nevertheless, international law forbids indiscriminate attacks that "are not directed at a specific military objective" or that use means "that cannot be directed at a specific military objective." Thus, carpet bombing of an area from which a rocket was fired is also illegal. Even when one party can accurately identify a specific military target belonging to the enemy, the attack must be proportional. According to the First Additional Protocol, disproportionate attacks are those that "are expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objectives which would be excessive in relation to the concrete and direct military advantage anticipated" from the attack. Based on these constraints, it would be "very problematic" if Friedmann and Attorney-General Menahem Mazuz gave Barak blanket approval to attack any home from which a rocket was fired, according to international law expert Yuval Shani of the Hebrew University of Jerusalem. "Each case must be considered on its own merits," he said. The decision-makers would have to take into account variables such as how many civilians live in the house, whether there is an alternate way to take out the target that would inflict fewer casualties, and whether there is a way to remove the civilians from the military objective before it is attacked. "It's not impossible to attack a residential home within the boundaries of international law," said Shani. But first, the decision-makers must assess the incidental harm inflicted on civilians stemming from the attack on the military target and compare it to the military benefits offered by the attack. According to Shani, the dilemma Israel faces in Gaza today belongs to the same group of problems it faced when it decided to drop a one-ton bomb on the home of Hamas military leader Saleh Shehadeh in Gaza during the second intifada. The building was clearly a military target. On the other hand, it was located in a densely inhabited neighborhood in Gaza City. Fourteen civilians, including eight children, were killed in the blast along with Shehadeh and an aide. That bombing can only be considered to be in accordance with international law if, in weighing the balance between the end achieved by the action and the damage caused by it, the former outweighs the latter.