A house bombed in Gaza. Photo: Muhammad Salem, reuters, 13 July 2014
According to B'Tselem's initial findings, from the start of Operation Protective Edge there were ten incidents in which Palestinians in the Gaza Strip were killed when the Israeli military bombed homes. 52 people were killed in these incidents, of them 19 minors and 12 women. An additional incident, in which six members of the same family were killed was defined by the military as a targeted killing, and was therefore not included in this figure.
Official spokespeople state that it is enough for a person to be involved in military activity to render his home (and his neighbors' homes) legitimate military targets, without having to prove any connection between his activity and the house in which he and his family live. This interpretation is unfounded and illegal. It is not a coincidence that the number of uninvolved civilians killed or injured by these bombings is growing. The law is meant to protect civilians and, unsurprisingly, violating it has lethal consequences. Euphemisms such as "surgical strikes" or "operational infrastructure" cannot hide the facts: illegal attacks of homes, which constitute punitive home demolition from the air, come at a dreadful cost in human life.
Is it legal for the military to bomb the homes of Hamas operatives?
From 8 July 2014, when the military launched Operation Protective Edge, to early Sunday 13 July, the military bombed dozens of houses in the Gaza Strip, according to media reports and statements by the IDF Spokesperson. According to the latter, these bombings are legal because the private homes of Hamas activists are "a legitimate military objective". Is that true?
What does the law say?
International humanitarian law defines a military target as follows:
"[…] military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." (Article 52 (2), Protocol I Additional to the Fourth Geneva Convention)
The official interpretation of the International Committee of the Red Cross makes it clear that objectives which, by their nature, make an effective contribution to hostile military action – such as weapon storage, military bases and communication centers used by the military – are considered military targets. Questions may arise regarding civilian sites, which may also serve military needs. For example, schools and hotels are, by definition, civilian sites, but if armed forces stay in them or use them as headquarters, they become legitimate military targets.
As full information is not always available prior to the attack, the law emphasizes that if any doubt arises as to the use of a civilian site and its effective contribution to hostile military actions, it must be considered civilian.
Another prerequisite for a legitimate objective is that attacking it must provide a definite military advantage.
What does the IDF Spokesperson say?
In an official blog, the IDF Spokesperson explained the reasoning behind the military's view that these bombings are legal. According to the military, Hamas operates within the civilian population in Gaza and often uses the homes of its activists for military purposes. For instance, the homes can be used for weapon storage, as command and control centers, or for establishing a communications center. When used in this way, they become legitimate objectives under international law. To decide whether a target is a military objective or not, the military has stated that it uses "advanced methods" – including intelligence, legal advice, and the longstanding experience of officers in the field.
Over the course of the current operation, the IDF Spokesperson changed the wording of statements concerning these bombings, apparently in an attempt to retroactively match his reports of reality to the requirements of the law. The first statement (8 July) reported that "among the targets attacked were four homes of activists in the Hamas terror organization who are involved in terrorist activity and direct and carry out high-trajectory fire towards Israel…”. The next day, another statement was issued reporting that the military had attacked additional homes of Hamas activists "which functioned as command and control infrastructure for the organization” or as "a control center for advancing terrorism". The same evening, the IDF Spokesperson stopped reporting that homes were destroyed, stating instead that "the operational infrastructure of a senior Hamas functionary was attacked".
There is a vast gap between the military's carefully-worded legal interpretations (in various versions) and its statements on specific cases of homes bombed. Only in one case did the IDF Spokesperson claim that weapons were hidden in the house and published video footage of the bombing, which shows secondary explosions of concealed ammunition. In all other statements, the military described the homeowner's involvement in hostile activity against Israel. Mentions of such activity included activity during the two previous military operations in Gaza – Operation Cast Lead and Operation Pillar of Defense – as well as involvement in harming soldiers, in current or past firing of rockets, or a general description of "taking part in terror activity against the State of Israel".
So, is it legal?
No. For the private home of an operative in Hamas (or any other armed organization) to become a legitimate military objective, the military must show that the house has effectively contributed to the organization's activity and that harming it would provide Israel with a definite military advantage. The military has attacked dozens of homes of operatives in Hamas or in other armed organizations since the current operation began; yet in the vast majority of these cases, it made no mention of any concrete military activity that took place in the house, which would meet the above legal requirements. Instead, the IDF Spokesperson chose to emphasize the history of the activist living in the house, which is irrelevant to these legal considerations.
The gravity of these illegal attacks is compounded by the resulting extensive harm to civilians. According to the IDF Spokesperson, the military does its best to minimize harm to civilians, including warning them of impending attacks. Indeed, in many cases, the military warned inhabitants and bombed the evacuated homes. However, in other cases, the inhabitants were not given sufficient time to leave their homes, and in some cases they refused to leave despite the warning given. In such cases, the military must not treat the houses as empty.
The military is not doing civilians any favors by warning them that their homes are to be bombed. International humanitarian law requires the military to warn civilians and to ensure that the warning is "effective". An ineffective warning breaches the military's legal obligations, with lethal results: if civilians are not given enough time to leave their homes, or if the military ignores their decision to stay, it is as though they were not warned at all.
The aim of international humanitarian law is to minimize harm to civilians under warfare and to restrict the warring parties. Some of its definitions are vague, such as "military advantage" or "proportionality", and do not always provide unequivocal guidelines for action. Many of its requirements leave extensive room for the discretion of commanders in the field. However, it is not open to any and all interpretations. The word of the law must be interpreted in its original spirit, in keeping with its overreaching aim: to provide maximum protection to civilians.
The IDF Spokesperson and the military's legal counsels state that it is enough for a person to be involved in military activity to render his home (and his neighbors' homes) legitimate military targets, without having to prove any connection between his activity and the house in which he and his family live. This interpretation is unfounded and illegal. It is not a coincidence that the number of uninvolved civilians killed or injured by these bombings is growing. The law is meant to protect civilians and, unsurprisingly, violating it has lethal consequences. Euphemisms such as "surgical strikes" or "operational infrastructure" cannot hide the facts: illegal attacks of homes, which constitute punitive home demolition from the air, come at a dreadful cost in human life.
List of cases:
Malakeh family, 3 fatalitie
Al-Masri family, 4 fatalities
a-Nawasrah family, 4 fatalities
Shalat family, one fatality
Al-Haj family, 8 fatalities
Al-Kas family, one fatality
Al-Ghanam family, 5 fatalities
Al-Batsh family, 17 fatalities
Al-Khatab family, one fatality