Legal analysis: Targeting Hamas police, media

Hamas has directed its armed police to aid in fighting the IDF.

By YONAH JEREMY BOB
IDF soldiers in urban warfare exercise 370 (photo credit: IDF Spokesman’s Office)
IDF soldiers in urban warfare exercise 370
(photo credit: IDF Spokesman’s Office)
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.
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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.