The Gaza legal battle

Any judgment on the civilian death toll will have to be made by Israel’s judicial system and by the opinions of legal advisors of democratic states.

The Gaza legal battle (photo credit: REUTERS)
The Gaza legal battle
(photo credit: REUTERS)
OBTAINING THE support of world public opinion is a major political objective of any state involved in an armed conflict. For tiny Israel, which sees itself as part of the democratic Western world, it can be crucial. If a state action is seen to be illegal, the state involved will invariably lose public support in the democratic world. This is true even of a superpower such as the US. The “extraordinary rendition” of suspected terrorist prisoners by the CIA to Syria, Jordan, Egypt and, apparently, to Poland for interrogation was considered illegal by public opinion in the UK, Italy and Germany, America’s closest allies. The consequences were that these countries refused to cooperate with the US on this and, in Italy, even prosecuted their own intelligence officers for doing so.
As part of their political campaign, the Palestinians have consistently tried to brand Israel’s actions as illegal under international law. This “lawfare” has included trying to categorize the West Bank security fence as an “act of apartheid” and the Israeli administration in the West Bank as an “illegal” occupation. Moreover, Israeli military attacks have almost always automatically been defined by the Palestinians as war crimes. Is this correct with regard to the latest fighting in Gaza? And what are the possible consequences? Any military force involved in an armed conflict is subject to the laws of war. This is true even if the other party deliberately flouts and violates these rules. The fact that Hamas overtly aims its attacks against Israeli civilians and uses its own civilians as human shields does not absolve Israel from complying with the laws of war and Israel has never claimed to be absolved.
The laws of war stipulate that military operations should be directed only against military objectives and that civilians shall not be the object of attack. However, military errors or misjudgments that cause civilian casualties are not considered war crimes. Moreover, if a civilian takes an active part in hostilities, he loses his civilian status and becomes a legitimate target. Similarly, civilian buildings such as a dwelling, a mosque or even a school lose their civilian immunity from attack if they are used for military purposes such as storing weapons, sheltering combatants or as observation posts. However, following the rule of proportionality, even military objects may not be attacked if such an attack would cause a loss of civilian life or damage to civilian objects that would be “excessive in relation to the concrete and direct military advantage anticipated.” This rule applies the test of anticipation, namely what “a reasonable military commander” would anticipate. For example, if there are some civilians near a Hamas rocket launcher that is about to launch its rockets at Israel, the anticipated injury to those civilians would clearly not be excessive in relation to the military advantage gained by destroying the rocket launcher. However, when the enemy, for example, uses a hospital for military purposes, as Hamas did with the Shifa Hospital in Gaza, this creates a very real dilemma for the other side. In fact, Israel refrained from attacking the hospital because the anticipated civilian casualties were likely to be excessive. This rule gives an advantage to the side using civilians and civilian objects as shields but, as former Supreme Court President Aharon Barak observed, “Democracies have to fight with one hand tied behind their backs.” There is, of course, no rule of proportionality in attacking enemy combatants and military targets. One can use greater force than the enemy; this is a cornerstone of legitimate military tactics. However, even when attacking a military target with no anticipated “excessive” loss of civilian life, the attacking force must take “all feasible precautions” to avoid or minimize “incidental loss of civilian life.”
WHENEVER CIRCUMSTANCES permitted, the systematic policy of the IDF in Gaza has been to warn the civilians of impending attacks, even though that meant losing the element of surprise. These warnings were carried out by sending text messages to cell phones, and dropping leaflets and dummy bombs on rooftops. As far as we know, no other army involved in armed conflict has ever undertaken so many actions to warn civilians of impending attacks. The IDF was involved in battle in a built-up area for a month. Thousands of Israeli troops were involved, including tank brigades and artillery. The Israel Air Force is reported to have made over 4,000 sorties delivering high explosive munitions. This may sound callous, but if the IDF had been deliberately targeting civilians or if it had been attacking indiscriminately, the death toll would have been immeasurably higher than the reported deaths of 700-1,000 civilians. One has only to recall the horrific unintended French civilian casualties from Allied bombings before and during the Normandy landings in World War II, estimated at between 20,000 and 50,000 dead.
Hamas used civilians as human shields and aimed its rockets at Israeli civilian villages, towns and cities. The IDF at times risked the success of its operations and the lives of its own soldiers and civilians in order to minimize enemy civilian casualties. Clearly, Hamas was deliberately flouting the laws of war; the IDF was plainly not committing war crimes. But who is authorized to make such a determination? Democratic states with independent judiciaries prosecute any of their soldiers who violate the laws of war. Israel has done so in the past and the 1949 Geneva Conventions are part of the IDF’s standing orders. Other democratic states behave likewise. The international community, however, has no statutory body authorized to make binding judgments on such issues.
The UN General Assembly has debated the situation in Gaza, but it is a political body whose resolutions are not binding. The UN Human Rights Council is another UN body that has been involved. Like the General Assembly, it is a political body with an automatic anti-Israel majority. The constitution of the Council determines that a criterion for membership is “the candidate state’s contribution to the promotion and protection of human rights.” Among the 47 states elected to the Council, who apparently fulfill this condition, are Algeria, China, Cuba, Indonesia, Kazakhstan, Kuwait, Morocco, Pakistan, Russia, Saudi Arabia and the United Arab Emirates. The Council hurried to pass a resolution condemning Israel for committing war crimes in Gaza; the text did not mention Hamas, let alone condemn it. The Council also established a commission of enquiry. This poses a dilemma for Israel. Should it cooperate with a commission whose mandate is biased, whose members are on record with vitriolic anti-Israel statements and whose conclusions are predetermined? Israel faced this dilemma with the Goldstone Commission after Operation Cast Lead in Gaza in 2008-9 and was berated by the panel’s chairman, Judge Richard Goldstone, for not providing him with information to counter the charges made by Hamas. A possible compromise Israeli reaction this time could be to provide information, answer queries but not allow the commission to interview individual soldiers.
Individuals suspected of committing war crimes can theoretically be tried by any state under the principle of universal jurisdiction. This avenue has been used in the past by Palestinian and radical groups in attempts to bring prosecutions in Europe against American and Israeli leaders like George Bush Sr., Henry Kissinger, Donald Rumsfeld, Ariel Sharon and Tzipi Livni as well as IDF officers. All such attempts, however, have been rebuffed by European courts and governments unwilling to have their legal systems abused for political purposes.
The International Criminal Court in The Hague is authorized to try individual war criminals if, and only if, the states involved are either unable or unwilling to try the individuals concerned. The Court has dealt with cases of mass murders, genocide and systematic rape. The US, Russia, China and Israel are not parties to this Court, nor are any of Israel’s neighbors other than Jordan. The Palestinians have been considering applying for membership, which would allow submission of complaints against acts committed in “Palestinian territory.” But it would also mean that any Palestinian “citizen” – including Hamas political and military leaders – could be indicted by the Court for war crimes. The civilian casualties in Gaza are a human tragedy. There is no formal international body that can make an unbiased judgment as to whether the tragedy was caused by the Hamas use of civilians as “human shields” or because civilians were deliberately targeted by the IDF. This judgment will have to be made by Israel’s independent judicial system and by the opinions of legal advisors and military lawyers of democratic states. Personally I believe the answer is clear: Despite the behavior of Hamas, the IDF took measures to protect civilians well beyond the requirements of international law. 
Robbie Sabel is Professor of International Law at the Hebrew University of Jerusalem and the former Legal Advisor of the Israel Ministry of Foreign Affairs