By Adv. Ido Rosenzweig*
Publication Date: February 10, 2013.
Type: A summary of a lecture given at the Joint IHL Forum - January 7, 2013
A discussion about a few questions related to the Israeli and Palestinian conducts during the recent November conflict.
The discussion is not a political one, focusing instead on the legality of Operation Pillar of Defense and the conduct taken throughout it in order to raise some of the debates arising from the operation, despite the fact that a “bottom line” decision has not yet come forth.
Four main issues were discussed:
(i) Jus ad bellum — self-defense;
(ii) Targeted killings;
(iii) Military Objectives;
(iv) Media explanations by spokespersons.
Operation Pillar of Defense began with the targeted killing of Hamas military chief Ahmed Jabari and lasted 8 days —14-21 November 2012 — between Israel and the Gaza Strip, before ending in a ceasefire agreement. Israel (predominantly using air capability) launched roughly 1500 strikes against objectives in Gaza, and Hamas and various other armed groups launched about 1500 rockets towards Israel (which, interestingly, somehow makes the conflict symmetrical).
The Operation’s legal basis was the ongoing armed conflict between Israel and terrorist organizations in the Gaza Strip, with Operation Pillar of Defense merely representing a more intense episode of hostilities. Even so, many Israeli spokespersons and leaders (including the Prime Minister) spoke of an Israeli right to self-defense against ongoing rocket attacks launched from the Gaza Strip in the run-up to the Operation. Use of the term “self-defense” seems to invoke jus ad bellum terminology — which would be inconsistent, as Israel claims that an armed conflict has existed since October 2000. Of course, we must differentiate between a "colloquial" use of the term self-defense (as a figure of speech) and the very specific legal term of art, but spokespersons and leading figures (such as ministers and even the Prime Minister) ought to be very aware of and sensitive to the distinctions in the terminology invoked. The lawful measures available to Israel vary greatly according to the framework.
Thus, the existence of Iron Dome, the proactive Israeli defense measure, affects the legal analysis under the jus ad bellum, where its existence may at least somewhat diminish the necessity of a response, but not necessarily under the jus in bello. Under IHL, there is no obligation to avoid from attacking an enemy solely because you have a good defense system.
As a working definition a “targeted killing” is an attack directed against an identified person. This differs from the regular “anonymous” on the traditional battlefield, where soldiers don’t know their opponents’ names — only that they are military objectives. Since the fighters of the Palestinian armed groups in Operation Pillar of Defense were not entitled to combatant status, they ought to be considered as civilians. Thus, attacks directed against them are only justified if and while they take direct part in the hostilities.
According to different publications, from day one of Operation Pillar of Defense", Israel executed at least seven major targeted killings:
1) Ahmad Jabari – military wing commander;
2) Hab’s Hassan Us Msamch — senior operative in Hamas’ police
3) Muhammad Abu-Jala — commander of the military wing in Al-Muazi
4) Khaled Shaer — senior operative in the anti-tank operations
5) Osama Kadi — senior operative in the smuggling operations in the southern Gaza Strip
6) Muhammas Kalb — senior operative in the aerial defense operations
7) Ramz Harb — Islamic Jihad senior operative in propaganda in Gaza city
Legal Frameworks Governing Israeli Targeted Killing Operations
Although one might argue that there is a difference between targeted killings during particularly intense operations such as Operation Pillar of Defense (or the 2008-9 Operation Cast Lead), such claims ought to be rejected. Since the Israeli position asserts that an armed conflict has been ongoing since at least October 2000, any targeted killings under even particularly intense operations must be conducted under the same framework that governed such previous operations. (It is notable that the entire analysis of the Israel High Court of Justice in the targeted killings case [below] was based on the assumption that an armed conflict exists and that targeted killing operations are being conducted within that framework)Two major frameworks govern Israeli targeted killing operations. Under IHL, there are two major considerations: is the target legitimate and what is the expected collateral damage?
The Israel High Court of Justice posits the second framework in the targeted killing case (HCJ 769/02, December 2006), identifying 5 considerations: A targeted killing must be preventive and not punitive; it must be directed against direct participants in hostilities; avoids excessive collateral damage; less-lethal measures not causing excessive threat to the operating power are unavailable; and collateral damage must be examined ex post facto by a special committee established following the judgment. It is important to note that under the HCJ framework, targeted killings are only permissible because of and within the context of an armed conflict.
Currently, it’s unknown whether the external committee is reviewing any of the Operation Pillar of Defense targeted killings, but (assuming that there was collateral damage) these targeted killings ought to be investigated. For example, the question of whether or not Jabari was directly participating in hostilities at the time of his death (and whether being a mere member of Hamas would suffice to trigger a continuous combat function role) is crucial given the HCJ’s narrow interpretation.1 This is because the HCJ specifically requires that a targeted individual be currently directly participating in hostilities or otherwise working towards planning a specific attack. Otherwise, the targeted killing may not comply with the HCJ requirement that the measure be preventive in nature.It would also have to be examined whether Jabari's mere membership of Hamas would suffice to trigger a Continuous Combat Function role (as stipulated from the ICRC's DPH Interpretive Guidance (although this may not necessarily be invoked under the HCJ framework).Albeit speculative pending more information, these questions may serve as a basis for future investigations and perhaps even a call on the Government to provide answers.
The Human Rights Watch (HRW) report on Israeli conduct during Operation Pillar of Defense concentrates on four attacks against media-related targets:2
(i) Two cameramen;
(ii) An antenna that served as part of Hamas’s “operational communications infrastructure”;
(iii) A media building of the Al-Aqsa station;
(iv) The office of a pro-Hamas journalist and analyst.
Putting aside the critical question of HRW’s information-gathering methodology, the report raises important operational law questions. Additional Protocol I (API) Article 52(2) addresses defining legitimate military objectives while API Article 51(3) grants protection to individuals unless and for such time as they directly participate in hostilities. Both are generally considered as reflecting customary international law. HRW reports that the two cameramen targeted during Operation Pillar of Defense just came out of a hospital (after filming victims of an Israeli attack) and were on their way home. Assuming the report’s veracity, arguing they were directly participating in hostilities (as suggested by IDF spokespersons) is unconvincing and problematic, absent further information to credibly defend the attack’s legality.
Regarding the media building antenna attack, media buildings enjoy special protection under IHL — but, once used for military purposes, lose their protection and become dual-use or full military objectives. An often cited example of this is the NATO bombing case, where a media station was accepted as dual-use by the Prosecutor of the ICTY, since it was being used for command-control communications (C3) and not solely propaganda. According to the official spokesperson’s statement, the antenna was targeted for propaganda use — a basis directly rejected by the NATO case. It further remains to be seen that less-harmful measures were unavailable3 (e.g. Israel has the capacity shut down the antenna without resorting to bombing).
Regarding spokespersons, IDF spokespersons (and ministers or politicians) apparently fail to understand that what they say counts. For example, after the NATO bombing of the RTS media station, the Prosecutor relates very specifically to NATO officials’ statements in trying to understand the purpose of the attack; and because (inter alia) these statements talk about command-control communications and not solely propaganda, the attacks were deemed legal. For example, both IDF and MFA spokespersons insinuated that the Hamas journalists were targetable due to their membership and role in Hamas propaganda efforts. Of course, the statement alone does not ipso facto mean that these individuals were not targetable; but direct participation in hostilities must be proven and the fact that mere Hamas membership may be criminal and thus prosecutable in Israel does not necessarily suffice to render them targetable.4
Another letdown is the IDF MAG's position paper on Operation Pillar of Defense (published on the MAG's website on December 19, 2012).5 Although the 8 page paper aims to shed light on legal issues related to the operation, it limits itself to little beyond a base affirmation that the IDF “follows IHL.” With regard to direct participation in hostilities, they relate solely to the narrow HCJ ruling on targeted killing (above — looking for actual contribution). If such a document is to be published, something promoting this claim (rather than merely restating it) ought to be produced. For example, the report could have addressed the legality of specific targets (rather than stating that all targets were in accordance with IHL). Another important issue raised (rather than answered) by the position paper concerns legal advice. The paper asserts that a legal advisor both pre-approved and later re-approved the legality of the attacks; however, Prof. Yuval Shany and Dr. Amichai Cohen have spoken at ALMA's Joint IHL forum in the past about a joint-paper that criticized this very practice of “dual-capacity” legal advisors.6 The position paper also praises the IDF internal investigation mechanism; indeed, IDF and Israeli officials often invoke the Spanish universal jurisdiction case where an Appeals Court allegedly held that Israel’s system in high regard. This claim ignores the fact that the Court didn’t actually refer to the IDF’s internal investigation mechanism — but rather to the specific targeted killings commission (e.g. the ‘Shehadeh Commission’) established following the HCJ targeted killing case. Even then, the Court only noted that there was no case for applying universal jurisdiction until the commission concluded its analysis, at the very least. It is interesting to note that the Turkel Commission is investigating the IDF internal investigation mechanism as we speak. Ultimately, the IDF should make great effort to shed light on the targeting process — and future position papers ought to follow the lead of reports published in the wake of the Second Lebanon War and after Operation Cast Lead (which provided very detailed explanations about the legality of targets).
HRW also issued a Report condemning Hamas’ rocket attacks. Although HRW’ criticism is rare and welcome, the focus on Hamas’ transgressions is limited to the 8 days of Operation Pillar of Defense — in spite of 12 years of rocket attacks — so why focus on this specific week? To balance versus the Israeli report? Ultimately, this lends credibility to the contention that HRW merely pays lip-service to such violations — neither benefitting the report or HRW’ work at large.
That said, the Tel-Aviv area rocket attacks in particular do raise very interesting and pertinent questions: the presence of high-profile military targets in civilian urban environments.7
Ultimately, Israel continues to fight with “one hand behind our back” — but when the fighting comes to a halt, Israel ought to display our clean hands with pride through the clear supply of information. The more transparent the IDF operates, the better Israel will appear.
*Adv. Ido Rosenzweig is ALMA's Chairman and a researcher at the Israel Democracy Institute. The author is thankful to Mr. Adam Broza for his help in summarizing the lecture.
2. http://www.hrw.org/news/2012/12/20/israelgaza-unlawful-israeli-attacks-palestinian-media; see also Yuval Shany, Amichai Cohen and Ido Rosenzweig, "HRW Issues Two Reports on Unlawful Conduct during Operation “Pillar of Defense”", Israel Democracy Institute Terrorism and Democracy Newsletter issue 48 (December 2012).
3. Regarding precautions to be taken in attack generally see API Article 57 (also widely considered as reflecting customary international law).
4. It ought to be borne in mind that various interpretations as to direct participation in hostilities do exist. For example, Prof. Michael Schmitt and Kenneth Watkin state that direct participation in hostilities and continuous combat function ought to be interpreted as widely as possible with regard to particularly organized armed groups (such as Hamas and Hezbollah), whose greater resemblance to armies may render mere membership direct participation in hostilities. However, The IDF Military Advocate General (MAG) doesn’t take this approach.
7. See Ms. Shavit Rissin's op-ed on this topic on ALMA's website (Hebrew).
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