Israel’s military operation to stop rocket fire at Israeli cities and to destroy Hamas tunnels under the Gaza-Israel border has drawn increasing criticism due to civilian casualties. To discuss the legal aspects of the conflict and some of the dilemmas facing Israel’s political and military leaders, BICOM Director of Research Dr. Toby Greene spoke with Pnina Sharvit-Baruch, former head of the International Law Department of the IDF and now a senior researcher at the Institute for National Security Studies (INSS) at Tel Aviv University. A podcast of this interview is available here.
Many critics of Israel’s military operation are looking at the number of casualties on both sides and concluding that Israel’s actions are disproportionate. From an international legal perspective, what does the legal demand for proportionality actually mean? And how is Israel applying it?
There are indeed many casualties, especially on the Palestinian side, and that is a very sad thing. But, from a legal point of view, proportionality is not measured by comparing the number of casualties from each side. In asymmetric conflicts it is not uncommon to have higher casualties on one side than on the other. In the NATO operation in Kosovo for example almost all the casualties were on the one side while the NATO forces operated largely from the air.
The two basic relevant requirements are first, the principle of distinction: according to which you can only aim your attack at a military, rather than a civilian object.
Second, even if you do engage a military target, you still have to take into account the potential civilians and civilian objects that might be harmed and make a balance, and see whether the civilian damage is not excessive in relation to the military advantage sought by the attack.
Hamas is operating from within the civilian localities, and according to some reports forcing civilians to stay there and be shields for their attack. They are using civilian areas and objects as launching pads for rockets, to store rockets, use them as entrances to their tunnels, and they are also booby-trapping the buildings for the soldiers operating there.
This makes these civilian objects into military targets, so it is legitimate to target such buildings. When engaging such objects, of course the fact there are civilians needs to be taken into account, but it is very difficult to operate. The whole area is civilian in nature, any attack, whether by air or ground forces, entails massive damage to civilian objects, or civilians that stay there.
In order to avoid as much as possible harm to civilians, civilians were warned in advance to leave these areas. Many have done so, but many still remain and this leads to civilian casualties, which as I say is very unfortunate, but this is not something Israel is doing on purpose. It is against both our moral ethics and also our interests.
The devastation to civilian property is vast, because the most densely populated areas are the ones being used [by Hamas and other militants] to attack soldiers and Israel. Many are booby-trapped; I have heard cases of soldiers returning fire to a building and the whole building exploding.
On the Israeli side have been happily very few civilian causalities but there have been quite a few soldiers killed. This is not due to the fact that Hamas is not aiming its attacks at Israeli civilians, on the contrary. We’ve had thousands of rockets fired every day. The only reason there are almost no civilian casualties on the Israeli side is because we have defensive capabilities, Iron Dome, which manages to intercept most of these rockets as well as good shelters.
But this is a threat which no western country has faced since WWII; a situation where its main cities are being attacked every day, more than once, meaning that we all have to enter shelters. This makes normal life impossible. On top of this, you also have the tunnels. Which means that people living in residential areas in the South could suddenly have a tunnel underneath their house, from which terrorists could come out of at any time and murder whoever is there. These serious security concerns are what we have to balance with the casualties on the other side, not simply the amount of casualties.
You’ve been a very senior lawyer in the IDF; can you describe the role taken by lawyers when decisions are being made about targeting, for example, an airstrike in a densely populated civilian area?
Legal advisors offer advice to senior commanders from the Chief of Staff (sometimes even the Minister of Defense and Prime Minister) down to the divisional level. The idea is that legal advisors are involved in the planning stages: their job is to see that the laws of armed conflict are incorporated into the plans and into what we call the ‘target bank’. This is mainly about pre-planned targeting. Sometimes there are other issues with regard to tactics or methods, where legal issues may arise.
When we are talking more about a tactical level, the issues for forces on the ground are much simpler. The rules of armed conflict were created by the practice of those involved in fighting, so they cannot be too complicated.
They are essentially the issues of distinction and proportionality, that is something the soldiers are trained for and are supposed to apply, but they don’t need a legal advisor to tell them how to apply it. According to the laws, the standard for assessing proportionality is that of ‘a reasonable military commander’. They must take into account the relevant factors, including what can happen to civilians. There is no formula for this balancing process; this is weighed according to the information the commander has at the time of making the decision. The laws take into account that commanders on the ground have limited knowledge of what is happening and that there is a lot of pressure and uncertainty and they assess this without the benefit of hindsight. The number of casualties is not necessarily the most relevant factor, but rather, the anticipated damage at the time of the commander’s decision.
The IDF gives many accounts of its attempt to warn civilians and move them away from areas of military conflict. How is that built in to their attempt to fight within the laws of war?
What must be stressed is that there are no alternative military targets for Israel to engage. All the targets, all the operatives, the firing and the weapons are entrenched within the civilian population. That is where we have to fight. In order to minimise the harm to civilians, Israel has issued warnings in advance. The laws of armed conflict require giving notice in advance to civilians so they can leave the area and protect themselves in order to minimise harm to civilians.
From your experience, how do the IDF’s practices compare with other armies, such as British or American forces?
Israel’s sensitivity to collateral damage is very high. For example, the warnings which Israel issue prior to attack are unprecedented; no other military issues such concrete warning so many times.
I wrote an article a few years ago about the legal aspects of warning prior to attacks and legal advisors in other militaries requested that I clarify, when describing the Israeli practice, that it is not required by international law, because they do not plan to adhere to such high standards.
It must be understood that when the Israeli forces are being attacked all the time, fire is used as cover, or as part of a retreat, or firing back at a source of fire, and it is more difficult to limit civilian casualties. However, when you compare Israel to other examples, such as the US forces in Fallujah, I think Israel is more restricted even when we are talking about ground operations.
In this situation we have new targets being determined by the IDF all the time. When a rocket is launched and the launch site identified, that becomes a new target. Are the legal advisors involved in this?
If it is an immediate target – places that rockets are fired from or you are responding to fire – you do not have the whole process of having the legal advisor ‘in the loop’. These examples often do not raise legal questions.
When there is more time to deliberate, especially if it is a sensitive target or there are question marks about the legality of the target, then there are more relevant questions or insights by a legal advisor. The act of balancing itself is not one for the legal advisor, but for the individual commander.
Israel has faced considerable scrutiny in the past, for example the Goldstone Report after Operation Cast Lead in 2009 (although Judge Goldstone ultimately distanced himself from the accusation that Israel deliberately targeted civilians). Has Israel learned lessons from its past experiences?
The fact that Israel abides by the rules of armed conflict has never changed. When talking to Israelis I say that we abide by these rules not to avoid another Goldstone Report, but because this is part of our being a democratic state which abides by the rule of law. If our soldiers come back from Gaza having disregarded the law or acted immorally, that is more frightening to me than any report.
However, I think there is an understanding that we have to keep track of what we are doing, because one of the main things I took from the Goldstone Report was that they didn’t believe us.
They came after the facts, they saw houses destroyed or damaged by Israeli forces. Israel would say that someone fired from that building or that ammunition was stored there. When they came, they obviously didn’t see anyone firing from the building. When they asked the civilians about what happened they were accompanied by Hamas representatives. The people unsurprisingly denied that anything had happened, and claimed the Israelis fired for no reason at all. There was even an admission in one part of the report that people might have been hesitant to say anything due to the presence of the Hamas representatives. But apart from mentioning it they did not apply that rationale in any other part of the report.
Seeing as the Palestinians denied anyone fired from the property. In the report’s eyes the purpose was to damage a civilian object, which is of course a war crime.
My take was that we had to do better in proving our case. This is very difficult because soldiers are operating under fire; they don’t have time to stop and take notes of every specific incident. So we have to find a way to face these accusations afterwards and this is difficult to do.
We do see the IDF producing a lot of footage from Drones and other aerial reconnaissance of fire coming from buildings. Is that consciously related to the desire to prove their case afterwards?
I think it is. I know that there is an attempt, it is just very difficult.
We hear of the ‘Dahiya doctrine’ (following the large-scale destruction in the Dahiya neighbourhood in Beirut in the Second Lebanon War), the idea that destruction of the civilian area may be necessary to deter and insurgency which is acting from within that civilian area. Do you think there is such a doctrine in play in the IDF and is it legal?
I don’t think there is such a doctrine. In Dahiya the impact was very strong due to the fact we managed to get to the headquarters of Hezbollah. The targets there were related to Hezbollah and that had an impact because they felt that the area was secure.
With Hamas, there is no such rationale. The only place they would be surprised if we attacked is the basement of al-Shifa Hospital, where they have their headquarters. They know that we have a big problem in attacking the main hospital in Gaza, which is why they are using it as their headquarters, and I don’t see Israel attacking that.
Also, Hezbollah appeared very much as the protectors of the Shia community in Lebanon. I think that civilians in Gaza view themselves as victims of Hamas. Deliberately harming civilians in Gaza is not going to achieve anything, not to mention the fact it would be a war crime. It also has no operational logic and I don’t think anyone in the IDF supports this logic.
Finally, Hamas and other armed groups clearly use Israel’s desire to avoid civilian casualties as a weakness to be exploited. Do the laws of war need to be amended to take into account these asymmetric conflicts?
I think the laws of war work. What doesn’t work is the way the international community is applying them. When the international community has sympathy to the less sophisticated military, it tends to put the onus on the stronger side and does not demand or expect the other side to avoid using these tactics. The Hamas tactics are illegal; it is illegal to use civilians as human shields. All the pressure is on Israel and this sends a message to non-state actors that they can carry on with what they’re doing and the world still sympathises with them, without any pressure or criticism. Putting the pressure on Hamas would eventually help the civilians in Gaza much more than pressuring only Israel.