Legal Aspects of the Gaza Operation December 27, 2008 – January 17, 2009 Legal Aspects of the Gaza Operation December 27, 2008 – January 17, 2009 Office of the Legal Adviser Ministry of Foreign Affairs March 2009

Law of Armed Conflict (LOAC) Even though the conflict in Gaza was between: Nevertheless: IDF bound by LOAC Terrorist organization – resort to force unlawful Sovereign State - authorized to use force to protect its civilians Hamas explicit rejection of LOAC Commitment to respecting LOAC Rejection of ceasefire – escalation of conflict Strenuous efforts to extend ceasefire and avoid conflict

Some Preliminary Questions Self defence against non-state actors? Self defence against non-state actors? Status of Gaza Strip? Status of Gaza Strip? Internal or International armed conflict? Internal or International armed conflict?

Legal Input into IDF operations Pre- Operation During Operation Lessons Learned Prior to conflict  Geneva Conventions included in IDF commands  Mandatory training and Computer tutorials  Legal Advice at HQ and Command level  Operational planning and targeting  Legal advisers in daily situation meetings  24/7 MAG center  Investigation of incidents  Changes to command rules and Operational procedures

Basic Principles in Armed Conflict Military Necessity Military Necessity Distinction Distinction Proportionality Proportionality Humanity Humanity

Military Necessity

Necessity “ My great maxim has always been, in politics and war alike, that every injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary ” “ My great maxim has always been, in politics and war alike, that every injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary ” Napoleon Bonaparte

Elements of Military Necessity Confronting the adversary ’ s weapons and ammunition Confronting the adversary ’ s weapons and ammunition Confronting terrorist infrastructure Confronting terrorist infrastructure Force protection Force protection

Confronting weapons and ammunition Increasing range of missiles Missiles fired from Gaza Total 8, 827 rockets and mortars

Confronting terrorist infrastructure Weapons-smuggling tunnels discovered between Gaza and Egypt

Force protection Gilad Schalit 1000 days in captivity

The Principle of Distinction

Distinction Obligation to distinguish between adversary ’ s civilians and combatants … the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives … the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives Additional Protocol I, Article 48 The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Additional Protocol I, Article 51(2)

Violating the Principle of Distinction Hamas posters boasting of missiles destroying civilian homes in Sderot

Distinction (contd.) Obligation to distinguish between own side ’ s civilians and combatants The presence of a protected person may not be used to render certain points or areas immune from military operations. The presence of a protected person may not be used to render certain points or areas immune from military operations. IV th Geneva Convention, Article 28 The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations. Additional Protocol I, Article 51(7) Additional Protocol I, Article 51(7)

Abuse of the principle of distinction Firing from civilian areas Firing from civilian areas Weapons stores, R&D facilities in homes, schools and mosques Weapons stores, R&D facilities in homes, schools and mosques Training bases and headquarters Training bases and headquarters Dressing as civilians Dressing as civilians Recruiting children Recruiting children Booby-traps Booby-traps Human shields Human shields

Firing from civilian areas Rockets fired from rooftop Rockets fired from rooftop Firing into Israel from Beti lahia Mortar launching squad firing from front of School (2007) (click picture to view film) Rockets fired at Ashkelon from behind cemetery

Location of bases and training centers – Tel Al- Zatar Note proximity of firing points from schools and other protected sites Note proximity of firing points from schools and other protected sites

Location of bases and training centers – Jabalia Note proximity of firing points from schools and other protected sites Note proximity of firing points from schools and other protected sites

Rocket launcher in Shati refugee camp Launcher positioned next to medical center, center for disabled and soccer stadium Launcher positioned next to medical center, center for disabled and soccer stadium

Abuses of Distinction - weapons storage and factories Weapons storage Weapons storage Weapons found in Jabalia mosque Weapons factories Manufacturing rockets in private house in Northern Gaza

Combatants dressing as civilians … combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack Additional Protocol I, 44(3) “ The commander, shaheed Muhammad Salameh Hilles, head of the mortar shells unit in Saja ’ iya and a lion of the special unit. ”

Abuses of distinction - recruiting children The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities, and in particular, they shall refrain from recruiting them into their armed forces Additional Protocol I, 77(2)

Abuses of distinction - recruiting children “ I like to help the resistance and I am not afraid of the Zionist occupation … I charge their cell phones and serve them tea … A group of friends and I burned tires to keep the Zionist planes from attacking the resistance ” “ I like to help the resistance and I am not afraid of the Zionist occupation … I charge their cell phones and serve them tea … A group of friends and I burned tires to keep the Zionist planes from attacking the resistance ” An eight-year old boy in the Jabaliya refugee camp to Jabaliya refugee camp to Hamas magazine Al-Risala, March 7, 2008 March 7, 2008 Children in uniform train at a PRC camp (Hamas’ PALDF Forum, August 22).

Abuses of Distinction - Booby traps Hamas map showing civilian homes wired and booby trapped to explode Booby-trapped residential building

Abuses of Distinction - Human Shields Armed terrorist uses child as shield to cross exposed road (click picture for film)

“Work accidents” resulting from preparing explosives in residential areas Result of Explosion at weapons factory in Beit Lahiya ‘ Work accidents ’ in December Kerem Shalom: Four rockets fired at the Kerem Shalom crossing fell on the Rafah Crossing. Egypt held Hamas responsible – Beit Hanoun: Two five-year old children wounded by an explosion, apparently caused by a rocket which fell in the Gaza Strip Tal al Hawa: Rocket falls on house of Imad al-Drimli, correspondent for a German news agency – Beit Hanoun: Explosion kills two girls aged 5 and 13. Palestinian man wounded by a rocket transferred to Israel for medical treatment December 27-31: (first five days of Operation Cast Lead) about 6.5% of the rockets fired at Israel fell in the Gaza Strip

Distinction – lawful responses What is a lawful ‘ military objective ’ ? ….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 ….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 Additional Protocol I, Article 52 (2)

Distinction – Precautionary measures in targeting Weapon selection – precision munitions, size of explosive Weapon selection – precision munitions, size of explosive Method of operation – direction of strike, angle, delay fuse Method of operation – direction of strike, angle, delay fuse Timing – time of least occupancy Timing – time of least occupancy Cross-Verification of intelligence Cross-Verification of intelligence Coordinated maps showing protected facilities – schools, medical facilities etc (1866 ‘ sensitive sites ’ in Gaza) Coordinated maps showing protected facilities – schools, medical facilities etc (1866 ‘ sensitive sites ’ in Gaza)

The Principle of Proportionality

Proportionality No general requirement of proportionality with armed conflict Obligation to refrain from excessive civilian harm Disproportionate attack: an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Disproportionate attack: an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Additional Protocol I, 51(5)(b) “ It may not be possible to limit the radius of effect entirely to the objective to be attacked … Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack ” “ It may not be possible to limit the radius of effect entirely to the objective to be attacked … Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack ” Major General A.P.V. Rogers, a former Director of British Army Legal Services

Principles of Proportionality Forward-looking test - expectation not result Forward-looking test - expectation not result Measure in relation to overall objective of attack Measure in relation to overall objective of attack United Kingdom declaration on signing API: "the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack". Reasonable assessment of the military commander at the time Reasonable assessment of the military commander at the time "It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. … It is suggested that the determination of relative values must be that of the 'reasonable military commander ‘” “ (Committee Established to Review NATO Bombings in Yugoslavia )

Proportionality considerations in urban warfare Force Commander Humanitarian Commitments Protect Israeli Civilians Force Protection Minimize Collateral Harm to civilians Legal Constraints Intelligence - verification

Abuse of proportionality principle - human shielding “ The defender has the primary duty of protecting the civilian population and removing civilians from military targets, if necessary ” W. Hays Parks, Air law and the Law of War Palestinian civilians used as human shields on the roof of Abu al-Hatal’s house in the Saja’iya area of Gaza City.” Al-Aqsa TV, March 1, 2007

Abuse of proportionality principle - human shielding “ The Palestinian people … created a human shield of women, children, the elderly and the Jihad fighters … We desire death as you desire life. ” Fathi Hamad Hamas leader Fathi Hamad praises human shield strategy shields on Al-Aqsa TV, March 1, 2007 (click picture for link)

Proportionality - Precautions Aborting planned attacks click for link Aborting planned attacks click for link Early warning: Early warning: Flyers Flyers Phone calls Phone calls Preliminary light attacks Preliminary light attacks “ effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit ” “ effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit ” Additional Protocol I, 57(2)(c))

The Principle of Humanity

Humanity - humanitarian efforts Establishment of MDA forward MDA clinic at Erez Crossing Point Establishment of MDA forward MDA clinic at Erez Crossing Point 68 chronically ill people and their escorts made their way from Gaza to Israel, the West Bank and Jordan 68 chronically ill people and their escorts made their way from Gaza to Israel, the West Bank and Jordan 37,159 tons of humanitarian aid on 1503 trucks were transferred via the Kerem Shalom and Karni crossings (food, medication and medical supplies) 37,159 tons of humanitarian aid on 1503 trucks were transferred via the Kerem Shalom and Karni crossings (food, medication and medical supplies) 449 dual nationals were evacuated via the Erez Crossing 449 dual nationals were evacuated via the Erez Crossing 120 humanitarian officers appointed 120 humanitarian officers appointed 24/7 Humanitarian Affairs Coordination Center 24/7 Humanitarian Affairs Coordination Center

Abuse of humanitarian efforts Abuse of humanitarian window to launch increased amount of rockets (60% attacks) Abuse of humanitarian window to launch increased amount of rockets (60% attacks) Attacks on crossings (Nahal Oz and Karni) Attacks on crossings (Nahal Oz and Karni) Launching and firing from the immediate vicinity of international installations (UNRWA hospitals etc.) Launching and firing from the immediate vicinity of international installations (UNRWA hospitals etc.) Use of ambulances to mobilize terrorists Use of ambulances to mobilize terrorists Theft of humanitarian supplies Theft of humanitarian supplies Artificial creation of shortages (fuel) Artificial creation of shortages (fuel) Prevention of medical evacuation of Palestinians to Israel Prevention of medical evacuation of Palestinians to Israel

Abuses of humanitarian efforts - attacks on crossing points Truck bomb explodes at Erez Crossing Point Truck bomb explodes at Erez Crossing Point Two Israeli employees of the Nahal Oz fuel terminal were killed when Palestinian terrorists fired mortars at the terminal

Abuses of Humanitarian arrangements – attacks on crossing points in 2008 August 2: Sniper fire and three mortar attacks are reported at the Nahal Oz fuel terminal into Gaza. July 13: Two mortars are fired at Kibbutz Nahal Oz, approximately 875 yards (800 meters) from fuel crossing. July 8: A mortar shell fired from the Gaza Strip lands in Kibbutz Ein Hashlosha. July 7: Two mortar shells are fired from Gaza fall close to Karni goods crossing and Kibbutz Nahal Oz. July 6: Armed Palestinian terrorists open fire on agricultural farmers working close to the Nahal Oz crossing.

Abuses of Humanitarian arrangements – attacks on crossing points (2008) May 22: A truck bomb, containing four tons of explosives, explodes at the Erez pedestrian crossing into Gaza. April 19: The Kerem Shalom goods crossing is attacked by two car bombs, wounding 13 IDF soldiers. April 13: Five mortars are fired at Kerem Shalom crossing. April 9: Mortars fired at Nahal Oz terminal. Terrorists later infiltrate the crossing and shoot dead two workers. March 23: Two mortars fall in close proximity to the Sufa crossing. Feb. 29: A mortar falls next to the Sufa crossing.

Abuses of Humanitarian arrangements – attacks on crossing points (2008) Feb. 18: Two rockets fired towards Kibbutz Nahal-Oz, approximately 875 yards (800 meters) from fuel crossing. Feb. 16: Five rockets fired toward Kibbutz Nahal-Oz Feb. 12: Mortars are fired which fall near Nahal Oz fuel terminal Feb. 6: A mortar shell is fired at Sufa goods crossing, forcing its closure. Jan. 18: Eight mortars are fired at Sufa crossing.17 Jan. 12: A Qassam rocket falls near Erez pedestrian crossing.18 Jan.7: Palestinian Islamic Jihad attempts to bomb Erez pedestrian crossing; attack is thwarted.19 Jan. 1: Five mortars are fired at Sufa goods crossing

Abuses of humanitarian arrangements – hospitals and ambulances Two ambulances, marked “ Red Cross ” and “ UN, ” used to evacuate terrorists (click picture for film)

Humanity – Abuses of humanitarian protection Anas Naim – classified as a ‘ medic ’ in Palestinian fatality list Medicine bottles, brought in as humanitarian aid, converted to Hamas grenades

Finding a lawful balance

HCJ- Israel’s Supreme Court “ A military commander ’ s obligation does not end with avoiding harm to the lives and the dignity of the local residents, a “ negative obligation ”, but his obligation is also ‘ positive ’ – he must protect the lives and dignity of the residents, within the constraints of the time and place …. ” - Justice Barak HCJ 764/04 “ A military commander ’ s obligation does not end with avoiding harm to the lives and the dignity of the local residents, a “ negative obligation ”, but his obligation is also ‘ positive ’ – he must protect the lives and dignity of the residents, within the constraints of the time and place …. ” - Justice Barak HCJ 764/04 “ As long as Israel has control of the transfer of necessities and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations of international humanitarian law to allow the civilian population to have access, inter alia, to medical facilities, food and water, as well as additional humanitarian items. ” - Justice Beinisch HCJ 201/09 “ As long as Israel has control of the transfer of necessities and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations of international humanitarian law to allow the civilian population to have access, inter alia, to medical facilities, food and water, as well as additional humanitarian items. ” - Justice Beinisch HCJ 201/09

HCJ- Israel’s Supreme Court “ Democracies fight with one hand tied behind their hand – but that is why they have the upper hand ” “ Democracies fight with one hand tied behind their hand – but that is why they have the upper hand ” Justice Barak HCJ 769/02 Justice Barak HCJ 769/02