Barak checks legality of options against rocket fire

Foreign Ministry holds Hamas responsible for Palestinian casualties.

Barak Dimona 224.88 (photo credit: AP)
Barak Dimona 224.88
(photo credit: AP)
Hours after pulling ground forces out of the Gaza Strip, and facing international criticism for IDF activities against the Hamas-controlled region, Defense Minister Ehud Barak held a meeting Monday evening to weigh the legal possibilities of alternative responses to continued Kassam fire against Israeli communities. Barak called together a wide range of legal experts, including Justice Minister Daniel Friedmann, Attorney-General Menahem Mazuz, IDF Military Advocate General Brig.-Gen. Avichai Mandelblit, assistant Attorney-General Shai Nitzan and the members of the Defense Ministry's Legal Adviser's office to discuss the various legal concerns, particularly those surrounding artillery fire against launch sites in populated areas. The IDF has pushed for greater freedom of action against the Kassam-launching cells, which, Barak emphasized, intentionally use houses and populated areas as platforms for firing Kassam rockets, working under the assumption that the IDF would not launch retaliatory strikes on densely populated buildings or areas. Artillery fire has been used in the past to deter and respond to Kassam launching cells, but its use was discontinued following a series of incidents, including the November 2006 shelling of two houses in Beit Hanun in which 21 Palestinians were killed. Deputy Defense Minister Matan Vilna'i proposed that the IDF deploy bulldozers to destroy houses from which rockets were launched. Other proposals included a warning system, through which announcements would be distributed in the areas used by terrorists warning civilians to leave. After that, smoke bombs would be fired at the coordinates, in order to further warn civilians to depart, and only afterward would live fire be used to destroy buildings from which rockets were fired. At the end of the meeting, Friedmann was tasked with preparing a legal opinion to determine the feasibility of the various options, with an emphasis on providing a quick response to the rocket fire. In another development, the Foreign Ministry said Monday that Hamas was responsible for Palestinian civilian casualties because it used civilians as human shields. The allegation came in a background paper entitled, "Responding to Hamas Attacks from Gaza, Issues of Proportionality." "Clearly, the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who chose to locate such targets in these areas must bear responsibility for the injury to civilians which the decision engenders," the paper stated. It then quoted from a book written by Tel Aviv University international law expert Prof. Yoram Dinstein, who wrote, "Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk." Nevertheless, the Foreign Ministry continued, the "callous disregard of those who hide behind civilians does not absolve the state seeking to respond to such attacks from the responsibility to avoid or at least minimize injury to them and their property." Regarding the requirement that the injury to civilians caused by an attack must be proportional to the military advantage anticipated from the attack, the question was who was to determine the balance between civilian cost and military benefit. The paper answered this question by quoting from a report prepared by a committee established to review NATO bombings in Yugoslavia. The committee recommended that the question of proportionality be determined by "the reasonable military commander," who is effectively responsible for deciding whether to attack or refrain from attacking. Furthermore, proportionality is to be measured "not against any single specific attack but in light of the overall threat being faced," the Foreign Ministry said. Thus, "Israel's response has to be measured not only in respect to any specific cross-border attack, or even the total number of thousands of missiles and mortars which have already been fired at Israeli civilians in the vicinity of Gaza, but also against the threat posed by the stockpiles of missiles, weaponry and ammunition which Hamas still has at it disposal and threatens to use against Israel." The human rights organization B'Tselem said in response to the meeting Monday that "attacks on legitimate military targets are prohibited if they are likely to cause disproportionate harm to civilians, or to breach the duty to take caution not to harm civilians. If the military's intention is to allow shelling of general areas or whole neighborhoods from which rockets are fired, such an attack would be indiscriminate and a grave breach of the laws of war." Meanwhile, Noam Peleg, an attorney for Gisha, Legal Center for Freedom of Movement, wrote Barak and Friedmann that "fire directed at areas inhabited by civilians, even if hostilities emanate from those areas, is prohibited according to international law and can be considered a war crime." Furthermore, "the obligation to refrain from deliberate targeting of civilians or disproportional injury to civilians when attacking military targets is not conditional on the behavior of the other side," Peleg wrote.