by Yael Stein, Research Director, B’Tselem Originally published 3 December 2012 as Haaretz op-ed, in Hebrew)
“As long as the number of civilians injured in Gaza by IDF [Israel Defense Forces] strikes is not perceived as excessive relative to the number of targets, their military nature and their indisputable importance, the IDF’s use of force is perceived as legitimate,” says Liron Libman, former chief of the international law division of the IDF’s Military Advocate Corps, (“Not everything is permissible,” Haaretz op-ed, 22 November 2012, in Hebrew) with regard to Operation Pillar of Defense [literally, “Operation Pillar of Cloud” in Hebrew]. Excessive? Military nature? Indisputable importance? These phrases will be interpreted differently by different people. And therein lies the crux of the difficulty with international humanitarian law: it is based on vague concepts such as “military needs” and “proportionality,” which are open to a variety of interpretations.
A bombed-out house in the neighborhood of a-Zeitun, Gaza City. Photo: Anne Paq, Activestills.org, 23 November 2012
Legal experts pronounced lawful all actions taken in Operation Pillar of Defense, just as they did with regard to Operation Cast Lead. They may be right. The interpretation of the principles of humanitarian law also depends on the facts and the circumstances of each case, and when authorizing the actions in question, the legal experts relied on information which remains classified. It is no wonder, then, that as Libman writes, “At this time, no serious contentions have been made as to the lack of proportionality of the operation.” We, as civilians, cannot possibly know whether a particular action was lawful. All we can do is rely on the assurances of security and legal authorities that proper judgment was exercisedin the decision-making process. Yet both the conduct of the military and statements made by officials make it very difficult to rely on these assurances. The legal experts seem to treatinternational humanitarian law as a combat manual designed to help them identify targets, rather than as guidelines designed to protect civilians from the dire consequences of warfare and to minimize, insofar as possible, harm to civilians.
This outlook may be illustrated by the way in which the Israeli military fulfills the “due warning” requirement of international humanitarian law, which obliges combat forces to warn civilians before an attack when they may be in harm’s way. How does the Israeli military fulfill this obligation? It drops warning leaflets from airplanes and in some cases makes telephone calls. Some leaflets warn civilians in general terms “to keep away from Hamas operatives” – an instruction impossible to implement. The military does not ascertain that civilians have an escape route or proper shelter, and does not always give enough notice to evacuate the proposed target. At other times, the military has launched small “warning” missiles at houses, as a cue to the people inside that they should hurry and leave. Obviously, the firing of such a missile cannot be considered a comprehensible warning, and on occasion the warning missile has actually injured civilians. Legal experts will argue that these actions fulfill the military’s obligation. However, they would be following the letter of the law, not its spirit.
Another example is the oft-repeated assertion by Israeli officials that Hamas is to be held responsible for harm to civilians in Gaza because it uses them as “human shields.” It is true that Hamas violates international law and even commits war crimes, including the intentional targeting of civilians, sometimes firing from within densely populated residential areas. Yet these facts cannot possibly justify harming Palestinian civilians, even if combat under these conditions indisputably makes things very difficult for the Israeli military. The fact that one side violates the laws of wardoes not license the other side to violate them as well. The principle of reciprocity is not recognized in the laws of war. Israeli reference to the crimes of Hamas might create the impression that the military views the unlawful conduct of Hamas as authorization for its own unlawful conduct.
During Operation Pillar of Defense, there were dozens of civilian fatalities, including of infants and children. Dozens of buildings, including homes and civilian offices, were damaged. These facts, in and of themselves, do not prove that the army’s conduct was unlawful. However, when coupled with the prevailing approach of Israel's military legal experts, they are enough to warrant a serious, independent investigation into the conduct of the military during Operation Pillar of Defense.
International humanitarian law, which the Israeli military asserts it abides by, is both complex and vague, outlining general principles that are open to a broad range of interpretation. Legal advisors should not exploit this haziness to justify harm to civilians. Rather, their role is to dispel it: to establish limits for the protection of civilians and remind military commanders that such protection is incumbent upon Israel. Protection of civilians is neither a matter of image nor of showing undue kindness to Palestinians in the Gaza Strip. In fact, Israel is duty-bound to protect civilians because it has signed the relevant international treaties and asserts that it operates in accordance with them.