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Legal Humanitarian Issues in Israel's Conduct of Operation Cast Lead

 

The following document was prepared by the IDF to explain humanitarian and legal issues related to IDF conduct in the "Gaza War" ("Operation Cast Lead") and to deal with some of the spurious accusations of rights groups, and of the UN investigation, based on complaints of the Hamas and their sympathizers. Readers should also be familiar with The Ethical Code of the IDF.

Allegations that the IDF deliberately caused civilian casualties or violated rules of war during Operation Cast Lead are unproven. Of course, there might be one or two cases in which individuals either erred or deliberately harmed civilians. However, Gaza is a densely populated area and the Hamas deliberately implanted itself in the heart of civilian areas. They not only used civilians as human shields, they boasted that they would do so.

Israel's Operation “Cast Lead” – Legal Humanitarian Aspects

January 2009

Legal Counsel in the IDF

           The Military Advocate General’s Corps (MAG) regularly provides legal counsel to the IDF on matters pertaining to the Laws of Armed Conflict (LOAC) and “operational law”.

            Legal advisors are routinely positioned at the HQ and Command level and participate in various planning stages of operational plans and pre-planned targeting.

           A legal advisor also provides legal advice to the District Coordination and Liaison Offices regularly positioned in the Erez Crossing (under the Coordination of Government Activities in the Territories).

           During crisis – the emergency legal advisors’ element is activated, with legal advisors (both regular and reserve) dispatched to the Division levels, in addition to the thickening of legal counsel to the HQ and Command levels.

            Legal advisors participate in various daily situation meetings and forums in the HQ.

            Their availability to the commanders allows them to respond to legal questions which may arise quickly or raise issues of concern with the commanders in “real-time”.

            A MAG situation center is opened and is manned 24/7 so as to facilitate access to legal advisors and serve as an effective mechanism for providing updates and receiving information.

  Training and Doctrine

           The Geneva Conventions have been adopted into the General Commands of the IDF.

           Representatives of the IDF School of Military Law tour training bases across the country providing lessons and lectures on the principles of international law pertaining to hostilities and the LOAC.

        Between 2003-2008 over 500 such lessons have been held. In the course of such lessons, the instructors also collect “real-life” questions from the soldiers and integrate these into their classes.

            In addition, lessons on international law and behavior during hostilities are incorporated into the syllabus of various courses for both junior and senior officers in the IDF. Courses on international law are also a part of academic degrees obtained through military programs.

           Both junior and senior officers in IDF courses undergo tutorials on international law and the LOAC using computer software specially developed by the IDF School of Military Law. Versions of these tutorials are also available for home study for reservists, and can be downloaded to IDF computers connected to the intranet. Over 1500 copies of the software and tutorials have been distributed within the IDF and are accessible at most military schools and training facilities.

           Leaflets and “pocket guides” for combat soldiers are prepared and distributed on various matters pertaining to hostilities, such as: protection of personal property; carrying out of searches; etc. 

           A booklet on the LOAC is routinely distributed over the years to all commanders and military schools in the IDF.

           A comparative guide regarding LOAC was prepared in 2003, with comparative information on the military manuals of the US, Canada, Australia, Germany and the ICRC, relevant international conventions, etc. The Manual was prepared in both English and Hebrew and has already been cited in several HCJ decisions and academic articles.

           The MAG Corps and the operational legal advisors in particular, regularly and actively participate in IDF general exercises, so as to train and improve the mechanism of legal counsel in the course of hostilities; bring to light legal issues which may arise in the course of hostilities; and ensure legal advisors are involved.

           In addition, legal representatives act as observers in the training of combat soldiers and provide guidance and emphasis on legal issues which arise.

          In 2005, the IDF combat doctrine on “Warfare Against Irregular Forces” was published, with a chapter devoted to legal aspects of such hostilities, along with the preparation and ethics for such fighting.

        In 2006 the Head of the Doctrine Department of the Ground Forces Command determined that the LOAC are an elementary qualification and are therefore mandatory in all training of the ground forces.

Distinction

           Hamas’ modus operandi entails the use of civilian structures – homes, schools, university, mosques, commercial centers – as launching sites, ammunition caches, command and control centers, etc. Such methods are in breach of international law and amount to war crimes.

           Under international law, a distinction must be maintained between military and civilian targets, and only military objectives may be subject to attack. However, civilian objects do not enjoy protection from attack if they serve a military purpose or use. This was the case with many targets in Gaza in the course of the Operation.

           Furthermore, Hamas exploited many sites with special status and protection – examples include the storage of ammunition in mosques; the disguising of Hamas fighters as doctors; the use of ambulances by Hamas fighters to travel in Gaza.

          The use of such protected sites for military purposes renders them legitimate military targets.

Proportionality

           Under international law, military targets may be attacked only if the commander assesses that the anticipated military advantage is not excessive in relation to the anticipated harm to civilians (“collateral damage”). This principle is instilled in IDF doctrine.

           Terror organizations, particularly Hamas, intentionally and systematically endanger civilians by imbedding themselves within the civilian population. The resulting affect is an increase in collateral damage when compared with classic warfare in the battlefield.

           Hamas’ despicable methods of warfare have forced the IDF to fight within densely populated areas. It is important to keep in mind that the alternative to this warfare was not to carry hostilities in the open battlefield – this was not an option – but to abstain from responding to Hamas’ attacks altogether. This is not an option for any democracy whose civilians are systematically and continuously under attack.

Proportionality

           When on the battlefield, proportionality is assessed by the commander in the field, based on the information available to him. Accordingly, the proportionality of an attack is weighed in advance and cannot be judged with the benefit of hindsight.

           As a result, Hamas creates a win-win situation – if the IDF abstains from an attack, Hamas’ capabilities are unharmed. If the IDF attacks, Hamas exploits the collateral damage for propaganda and attempts to portray IDF attacks as disproportionate.

           As part of its methods, Hamas also often booby-traps its structures; plants mines and explosives in them or underneath them using tunnels. This may also affect the result of an attack by causing secondary explosions which cause increased damage, skewing the proportionality of an attack.

Precautions in Attack

           International law requires that precautionary measures be taken, when possible, to minimize collateral damage.

           In accordance with this obligation, the IDF makes strenuous efforts to give specific warnings, prior to planned attacks, to civilians in places constituting military targets (such as buildings used by terrorists for storing weapons or launching attacks), as well as general advance warnings to the civilian population in the area of military operations.

           The warnings are carried out by means of the dropping of leaflets in Arabic, telephone calls and radio announcements. By encouraging civilians to leave such areas, these means have been found to be very effective in saving lives.

           It should be emphasized, however, that as indicated, the laws of war are not impervious to the fact that providing precautions is not always possible.

           For instance, the enemy may take advantage of such warnings to remove ammunition or to exploit civilians in order to “immunize” targets. For this reason, there is no obligation to provide advance warning of an attack if so doing would jeopardize the success of the operation.

           Nevertheless, the IDF resorts to precautionary measures whenever possible, even at the expense of certain military advantages. Sadly, Hamas has used these advance warnings to encourage the civilian population to group around such military targets as human shields in an attempt to prevent IDF attacks.

Weapons Containing Phosphorus

           There have been accusations that Israel made illegal use of weapons containing phosphorus in the course of its operation in Gaza.

           Weapons containing phosphorus fall under the category of incendiary weapons. The use of such weapons, in and of themselves, is not prohibited under international law.

           The use of such weapons is subject to the general principles of international law regarding the use of weapons – they may not be used in an indiscriminate manner and they may not cause superfluous or unnecessary suffering.

           The IDF, as part of its doctrine, ensures that these principles are respected in the course of its operations with regard to the use of all weapons, including weapons containing phosphorus.

           The Third Protocol to the CCW regulates the use of incendiary weapons. The Protocol does not prohibit the use of incendiary weapons; rather, it sets forth certain limitations on their use. It should be noted that Israel is not a member-state to the Protocol.

          Nonetheless – the majority of the Protocol’s limitations are regarding the use of such weapons primarily for incendiary purposes against military targets among civilian concentrations. Weapons containing phosphorus are often used for other purposes, such as: smoke-screening, illumination, marking targets.

           The Protocol does not set forth any particular limitations on the use of incendiary weapons, including weapons containing phosphorus, for smoke-screening or designating/marking targets, even when used in close proximity to civilians.

Detainees

           In the course of the hostilities, the majority of suspects apprehended by the IDF were released within 48 after initial questioning.

           Any persons further detained by Israel are held under one of two regimes: those suspected of involvement in criminal acts are held in accordance with regular Israel’s criminal proceedings, while those suspected of involvement in terror activities and hostilities are held as unlawful combatants under the Detention of Unlawful Combatants Law of 2002.

           Unlike the status of “unlawful combatants” in some countries – a loose term that allows the detention of persons indefinitely with very little supervision or limitations – the status of “unlawful combatants in Israel in regulated by law with detailed procedures and strict scrutiny.

           The principal guarantees under the law: the right to meet with legal counsel; judicial review by both the district and supreme courts on decisions pertaining to the detention and the legitimacy of the detention itself; suitable detention conditions.

Humanitarian Obligations

           In the course of the Operation, IDF commanders at the highest levels stressed the importance of ensuring the provision of basic humanitarian aid to the civilian population in Gaza. Direct orders were given regarding the need to facilitate humanitarian aid to Gaza.

           Despite attempts by Hamas to attack the crossings between Israel and Gaza, the crossings were nonetheless operated by Israel, at risk to those operating the crossings (since these are within Hamas rockets range) to ensure the flow of supplies into Gaza.

           Humanitarian windows were decided on by the IDF in order to allow the civilian population to travel within Gaza and receive supplies. Needless to say, these initiated recesses in hostilities were unilateral in nature and were disregarded by Hamas. In fact, a high percentage of launchings in the course of the day were during this corridor.

           In addition to already existing mechanisms for coordination through the COGAT (Coordination of Government Activities in the Territories), a special Humanitarian Operations Center was established for enhanced coordination with representatives of the international organizations working in Gaza. The Center, headed by a Brigadier General (Res.), was centrally located in order  to ensure easy access to foreigners.

           Representatives of organizations such as: OCHA, UNRWA, ICRC, WFP, and others would meet twice daily with MoD/IDF reps. to plan and coordinate the plans for entry of humanitarian aid into Gaza in the following days.

           It should be noted that many humanitarian convoys, rather than reaching their destination, were seized by Hamas for its own purposes or sold to Palestinian civilians on the black market.

Judicial Review

           In Israel the Supreme Court, when sitting as the High Court of Justice (HCJ), is the first and last instance for petitions against the state.

           The Court has extremely lenient rules of standing, making it accessible to many private and public petitioners.

           As a result, petitions against the military and its actions may be filed with the Court during military operations or hostilities. The Court may hear these petitions in the course of such hostilities, sometimes within hours of a petition having been filed.

           The State is obligated to response to such petitions, and has often brought professional experts from the field in support of its responses.

           In the course of the three weeks of Operation Cast Lead, 3 such petitions were filed and heard by the HCJ.

           In one such petition regarding the supply of electricity to Gaza and safety of medical personnel, dismissed by the Court after receiving the State’s response and hearing its oral arguments, the Court wrote:

        “We have asked and received from the Respondents [the State] detailed answers regarding the various humanitarian matters raised in the Petition. It has been clarified to us that the IDF and its senior commanders are prepared to fulfill their humanitarian obligations and are aware of these.”

Related materials:

BBC Interview of Col Richard Kemp discussing IDF operations in Gaza

International Law and Military Operations in Practice

Operation Cast Lead

Prosecuting Hamas for War Crimes

Gaza victims describe how they were used by Hamas

Hamas war crimes in Gaza

 

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