Israel, Gaza and Humanitarian Law: Efforts to Limit Civilian Casualties
Lt. Col. (res.) David Benjamin
Addressing an audience in New York on November 6, 2014, the highest ranking officer in the U.S. military, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, acknowledged that Israel went to “extraordinary lengths” to limit civilian casualties and collateral damage during its Operation Protective Edge in July-August 2014. He also related that the Pentagon had sent a team to see what lessons could be learned from the operation.1
Gen. Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, praised Israel for its efforts to avoid civilian casualties in Gaza.
This chapter contains a brief outline of the measures adopted by Israel’s military to minimize the impact on civilians of its campaign to neutralize the rockets and terror tunnels of Hamas and Islamic Jihad in the Gaza Strip. It should be borne in mind that during this time the rulers of Gaza were engaged in a parallel effort to maximize the exposure of their own civilians to the dangers of the conflict (as described elsewhere in this study).
The Overall Picture: Selective Application of Military Force
The IDF is selective in its application of military force. As in past operations, airstrikes during Operation Protective Edge were clearly directed at specific sites, while ground operations were focused on destroying tunnels leading from Gaza into Israel. The IDF does not engage in “carpet bombing,” as some have alleged, or any other form of indiscriminate attack. Had the IDF wished to simply inflict destruction on the Gaza Strip, it could have done so on a far greater scale and in a much shorter time.
Satellite maps published by the UN Office for the Coordination of Humanitarian Affairs (OCHA), showing the locations of damage incurred in the Gaza Strip, confirm that the IDF campaign was focused on specific targets.2 Subsequent images released by the IDF Spokesperson illustrate the overlap between concentrations of military targets and the areas most affected by IDF operations.3
On Aug. 15, 2014, the United Nations published maps of the Gaza Strip with markings on damaged areas. As this IDF video shows, the UN maps failed to show that Hamas fired rockets from those same areas, including schools and hospitals. (IDF/YouTube)
However, one need not rely on the IDF’s claims about its own conduct. On August 15, 2014, OCHA published its “Gaza Crisis Atlas.”4 The 100-page document showed the location of civilian infrastructure in Gaza along with more than 12,000 points representing damage caused by the IDF strikes during the first month of Operation Protective Edge. The points were color coded according to four levels of damage: crater/impact, moderately damaged structure, severely damaged structure, destroyed structure.
Analysis of the UN’s own “Gaza Crisis Atlas” showed that the IDF’s strikes were precise: 78 percent of all destroyed structures in Gaza were within a three-kilometer distance from the Israeli border.
A geographical information analyst, Dan Smith, extracted the 12,000 data points and displayed his findings on four separate maps, one for each level of damage.5 The findings showed that the IDF’s strikes were precise and concentrated. Seventy-two percent of the total damage points were within a three-kilometer distance from the Israeli border. This distance corresponds with the areas in which the IDF said it was operating in order to destroy tunnels. Furthermore, 78 percent of all destroyed structures in Gaza were within the three-kilometer buffer zone.
Gaza Damage Points Broken Down by Severity
Smith then created a single heatmap based on the four separate maps above. The unified map showed that most of the damage in Gaza was in locations near the border with Israel. The rest of the Gaza Strip was, for the most part, undamaged. The main population areas of Gaza City, Jabaliya, Khan Yunis, Rafah and Deir el-Balah were disproportionately undamaged.
Damage Intensity Heatmap of the Gaza Strip
However, the commitment of the IDF to limiting casualties and suffering among enemy civilians extends far beyond its policy of applying military force only when and where necessary.
Legal Supervision and Enforcement
Under the laws of the State of Israel as expounded by Israel’s Supreme Court, the IDF is bound to conduct its operations in accordance with International Humanitarian Law (IHL).6 This obligation is reflected in IDF General Staff Regulation No. 33.0133.7 This means that IDF personnel are obliged to follow the provisions of IHL as they relate to the protection of civilians from the effects of armed conflicts. This commitment to IHL is not dependent on the adversary’s reciprocal compliance with IHL. Thus, in the conflict with Hamas, Islamic Jihad and other terrorist groups, the fact that these organizations flagrantly flout international norms does not exempt the IDF from abiding by them.
Under the laws of the State of Israel as expounded by Israel’s Supreme Court, the IDF is bound to conduct its operations in accordance with International Humanitarian Law. The fact that Hamas and Islamic Jihad flagrantly flouted international norms did not exempt the IDF from abiding by them.
In broad terms, this means that the IDF may only launch attacks against military objectives and that civilians and civilian objects may never be deliberately targeted. It also means that the “collateral damage”8 expected to ensue from an attack on a military objective must not be excessive in relation to the anticipated military benefit of the attack. It also requires the IDF to adopt all feasible precautions to minimize the risk to civilians from an attack.
Failure to abide by the above requirements constitutes a violation of IHL and consequently a violation of Israeli law for which perpetrators are liable for prosecution.
The State of Israel has a highly developed state apparatus for legal supervision and enforcement to ensure that its armed forces abide by IHL.
The Military Advocate General’s Corps (MAG) of the IDF provides expert legal advice and training on IHL to IDF commanders. Instruction in IHL is provided by the IDF’s School of Military Law, while legal advice is given to the General Staff level down to Division level by military lawyers from the IDF’s International Law Department.
The MAG is also responsible for initiating criminal investigations and prosecutions in the event of suspected violations. It is important to note that in all professional matters, the MAG is not subject to the IDF chain of command and has full independent discretion. The MAG may order a criminal investigation into any incident involving a suspected IHL violation. Such a decision may be taken based on the complaint alone or on the factual findings of an operational debriefing. Trials of IDF personnel accused of misconduct take place in independent military courts.
The MAG in turn is subject to the supervision of the civilian Attorney-General of the State of Israel who has the power to overrule the MAG if he/she deems it necessary.
The entire government apparatus, including the IDF, is subject to judicial oversight by the Israel Supreme Court. The rules of standing and justiciability are such that anyone, including Palestinian residents of the Gaza Strip or human rights NGOs, can petition the Court to intervene in any act of government on the basis that the act is unlawful. This includes military operations as well as decisions on whether an investigation or prosecution is warranted in a particular case. The depth and breadth of judicial oversight of the military by the Israel Supreme Court has no parallel anywhere in the world.
The depth and breadth of judicial oversight of the military by the Israel Supreme Court has no parallel anywhere in the world.
In 2012, the “Turkel Commission,” established to examine, inter alia, Israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict, published its report. The Commission, comprised of a former Supreme Court justice and senior Israeli jurists, with a prominent Irish diplomat and a former Judge Advocate General of Canada as observers, found that, on the whole, the Israeli investigation mechanism described above is consistent with Israel’s international legal obligations. It also made several recommendations for improving the system. Central to the Commission’s recommendations was the establishment of a fact-finding assessment mechanism, composed of experts in military operations, international law and investigations, outside the operational chain of command, which would be able to provide the MAG with as much information as possible within a short time-frame regarding incidents involving possible violations of IHL.9
Such a Fact Finding Assessment Mechanism (FFAM) was indeed set up and activated during Operation Protective Edge. The FFAM, headed by a major-general and composed of operational and legal experts, mostly reservists, began its work about two weeks into the operation. To date, around 100 incidents have been referred by the MAG for examination by the FFAM.
Pursuant to various allegations of IHL violations by Israeli forces during Operation Protective Edge, the MAG has thus far ordered a total of 13 criminal investigations into incidents involving harm to civilians or civilian property in the Gaza Strip. Five of these investigations were ordered after an FFAM examination, while the other eight were ordered directly based on initial reports.
The incidents under investigation include:
– an alleged attack leading to the deaths of four children on the beach in Gaza on July 16;
– an alleged strike in the vicinity of an UNRWA school in Bet Hanoun on July 24 resulting in the deaths of 15 civilians;
– the alleged shooting in Dahaniya on July 18 of a woman whose movements had allegedly been coordinated with IDF forces;
– the alleged deaths of two ambulance drivers – one in Khan Younis, the other in Beit Hanoun, as a result of IDF strikes, both on July 25;
– the alleged deaths of 27 civilians in an attack on the Abu Jama family house on July 20;
– the alleged shooting death of an individual carrying a white flag in Khirbeit Haza’a on July 29;
– alleged mistreatment of a 17-year-old youth while in the custody of IDF forces in Khirbeit Haza’a;
– several instances of alleged looting, and one of civilians allegedly being used as human shields.
So far, the MAG has also decided, based on information collected by the FFAM, that nine additional complaints received do not warrant criminal investigations. The summaries of the MAG’s decisions, published on-line, provide an insight into the procedures mandated by the IDF to minimize harm to civilians and their property. These will be elaborated upon below.10
The IDF Code of Ethics
In addition to being bound by IHL, the IDF has a Code of Ethics entitled “The Spirit of the IDF.”11 IDF personnel are charged with upholding the moral standards reflected in the Code which incorporates a section named “Purity of Arms.” This includes the duty to use force only when and to the extent necessary to maintain one’s humanity during combat, to refrain from harming persons uninvolved in combat and prisoners, and to do everything in one’s power to prevent harm to their persons, dignity, and property.12
IDF Orders, Procedures, and Planning
As a matter of course, all operational planning in the IDF incorporates the minimizing of harm to civilians and their property as an operational goal. As such, this aspect finds expression throughout all operational orders, procedures and rules of engagement, all of which are drafted, as a rule, in consultation with IDF legal advisors.13 In addition, battle orders issued by the General Staff contain detailed annexes devoted to humanitarian and legal matters. The motivations for this are twofold: the first being the binding legal and moral framework described above, while the other is the understanding, acquired through a succession of bitter lessons, that casualties and suffering among enemy civilians are likely to impede one’s ability to achieve one’s military objectives as well as lead to diplomatic fallout with major strategic consequences.
Battle orders issued by the IDF General Staff contain detailed annexes devoted to humanitarian and legal matters.
Situations where civilian casualties have had a direct impact on the progress of military operations have been dubbed “Kafr Qana Syndrome” in the media and in defense circles. The term refers to two incidents which occurred in the southern Lebanese village of Qana on two separate occasions. The first was during the IDF’s Operation Grapes of Wrath against Hizbullah in the spring of 1996. An errant 155mm artillery shell landed in a UN compound in Kafr Qana where numerous Lebanese civilians had taken shelter, killing over 100 people. International pressure resulting from the incident forced Israel into winding down its operation and agreeing to a ceasefire before all its operational goals were accomplished. The second incident took place during the Second Lebanon War in 2006 when an IDF bomb destroyed a building resulting in what was initially alleged to be over 60 civilian deaths. The resulting international outcry brought about a 48-hour cessation of Israeli aerial activity over Lebanon and a significant erosion of international support for the IDF’s campaign against Hizbullah. It later transpired that the number of civilian casualties had been less than half of that originally alleged, but the damage had already been done. Avoiding the “Kafr Qana Syndrome” has been dominant in the minds of IDF planners ever since.
The most notable case where civilian casualties have had long-lasting negative strategic consequences for Israel came in the aftermath of Israel’s Operation Cast Lead (December 2008-January 2009). Following initial reports of over 900 non-combatant deaths in the Gaza Strip, the UN Human Rights Council sent a fact-finding mission to Gaza. The report of that mission, dubbed the “Goldstone Report” after the mission’s head, Judge Richard Goldstone, was a blistering indictment of the IDF’s conduct, including pronouncements that the IDF was guilty of the most heinous of war crimes – the systematic and deliberate targeting of civilians. While Goldstone himself retracted this accusation nearly two years later,14 and while the number of civilian casualties was eventually shown to have been much lower, the damage caused to the IDF’s and Israel’s standing has been immeasurable. Ever since Goldstone, global efforts to delegitimize the State of Israel and its policies have gained unprecedented impetus. In the wake of this and other experiences, no one in the Israeli military establishment fails to comprehend that civilian casualties play into the hands of the enemy.
The IDF has an advanced, standardized procedure for target-vetting which incorporates intelligence, operational, and legal experts in all decisions involving strikes on pre-planned targets.15
– Intelligence: provides information on the nature of the target, its location, and the civilians and civilian objects in the target’s vicinity.
– Operations: provides information on the operational aspects, e.g., the operational platforms and munitions available for attacking the target as well as the likely impact of various munitions on the target and its surroundings.
– Legal: provides an opinion on the legality of attacking the target and of the various options for attack as well as the precautions to be taken.
In appropriate cases, civil affairs experts are also consulted regarding the possible impact of the target’s destruction or incapacitation on the civilian population or the environment generally.
This procedure guarantees that pre-planned targets are attacked only after thorough deliberation and examination of the relevant considerations, including the potential impact on civilians and the legality, under IHL, of the attack.
This does not mean that the IDF’s targeting process is foolproof. There is always the possibility that ostensibly reliable intelligence information forming the basis for a decision is incorrect or incomplete. There can also be miscalculations or mistakes. One ever-present possibility is that the situation on the ground will change at the last minute or even after the attack has been launched. For example, a group of civilians might unexpectedly enter a targeted site moments before an attack. In such situations, we have seen that the IDF has aborted attacks.16 We also know that missiles have been diverted in mid-flight when civilians suddenly entered the target zone. There are a number of video clips available online showing such diversions seconds before impact.17
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