War is a continuation of diplomacy by other means said Carl von Clausewitz, and when the means change, so do the legal rules. In recent years, Israel has been the object of the most severe criticism for its conduct in a series of military operations, from the Second Lebanon War, to the seizure of the Turkish ship the Mavi Marmara, to Operation Cast Lead in Gaza. The critics maintained that Israel's conduct was in breach of international law. The climax came with the Goldstone report by a team of investigators headed by South African former judge Richard Goldstone, appointed in April 2009 by the United Nations to examine the IDF's actions in Operation Cast Lead and the actions of Hamas that led to the operation. The report's main finding was that both sides acted intentionally and systematically to harm the opposing civilian population (Goldstone himself later modified his stance on Israel's part in the conflict). This is contrary to the laws of warfare, which oblige the sides in a conflict to distinguish between combatants and non-combatants, and to direct their activity exclusively against combat forces, while doing their utmost to safeguard civilian life.
Three weeks ago, following continual rocket and mortar fire from the Gaza Strip at the State of Israel, the IDF embarked on another operation in the enclave, and "Globes" set out to examine, with the aid of international law experts, whether this time Israel is conforming to international law, and whether it has drawn conclusions from past experience. The answers are not unequivocal, and the picture that emerges is a complex one.
"A great deal of thinking has been done"
Adv. Yuval Sasson, a former deputy state attorney in the department of international affairs, and currently head of the Homeland Security, Defense and Aerospace Law department at the firm of Meitar Liquornik Geva Leshem Tal, says that Israel has learned the lessons of the past and that he is convinced that it is acting in Operation Protective Edge in accordance with international laws of war. Sasson, who participated in a team at the State Attorney's Office that examined the implications of the Hague Convention for IDF operations, says, "The leadership has patently done a great deal of thinking in this connection. International reports are examined, responses are provided to international organizations. Despite the prevalent politicization and cynicism, Israel treats the criticism seriously. I also know of no other court in the world that imposes such broad oversight during combat and afterwards as our Supreme Court imposes on fighting forces, while also criticizing political decision makers."
How are the legal lessons learned manifest in the current operation?
Sasson: "From the first moment of the operation, Prime Minister Benjamin Netanyahu and the government as a whole have been active in three arenas: the military arena, the home front, and the diplomatic arena. Before every action and every stage of the operation, the legal considerations are weighed by all those concerned. So, for example, the very decision to enter into the Gaza Strip stemmed from international law considerations.
"My impression is that use is being made of highly accurate weaponry in order to avoid harming innocent civilians. From a military point of view, it would have been much simpler to flatten Gaza and avoid casualties among IDF soldiers. But we are carrying out surgical strikes using smart bombs and through soldiers in the field, involving risks and sending them into the interiors of houses, in order to avoid actions that harm civilians." Sasson points out that, in war, non-combatants will always be hurt. "We all regret the harm to civilians, but the laws of war recognize this as legitimate, when it is proportionate and committed in self-defense."
Sasson says that another lesson that Israel has learned from the past is to document every action: "The IDF spokesperson has attached photographers to every IDF unit, not just for the purposes of international public diplomacy, but also as a precaution against the claims that will certainly be made in the international arena after the fighting is over."
"Trying to act lawfully"
Prof. Eyal Benvenisti of Tel Aviv University, an expert on international law, is more cautious than Sasson, but ultimately he too thinks that Israel has so far acted in Gaza proportionately, in a way that conforms with international law. "I can't confirm in advance that everything that is done is legal, but I can certainly say that one can see that there is a great effort to act in accordance with the law, and also that much has been learned from the past," Benvenisti says.
How does international law view bombardment from the air and by artillery in a densely populated urban area?
Benvenisti: "The moment that there are fighters or military targets in an area, it is not proof against attack. When there is a civilian population, you have to avoid harming it as far as possible. The question is how far the harm to the population is out of proportion to the military target. If there is one grenade and 100 million people around it, then you will certainly not fire at it, but if there's a nuclear missile with ten people around it, then you certainly will. There's no fixed formula here. In Operation Protective Edge I see that there is house-to-house fighting, and so it seems that a proper effort is being made not to harm civilians. But it will be necessary to examine matters more closely after it's all over."
The Palestinians claim that the IDF carried out a massacre in the Sejaiya neighborhood of Gaza, and horrifying pictures were distributed of women and children who had been killed.
"Pictures of bodies of civilians are very distressing, but you don't know in what circumstances they were killed and what precautions the army took to minimize casualties. I have the impression that the understanding is there that it's necessary to fight according to the rules."
As an example of Israel drawing conclusions from the Goldstone report, Prof. Benvenisti mentions the warnings given to Sejaiya residents to vacate their homes before the fighting began there. "The IDF told them to leave the area," he says, "It told them where to go and by what route. This was done as a lesson from the Goldstone report, in which criticism was leveled at Israel for notifying Gaza residents that they should get out before the attack in Operation Cast Lead, but not telling them where to go and not providing a safe corridor via which they could reach a safe zone. What you see here is a direct implementation of the Goldstone report."
Another procedure that Benvenisti says derives from, among other things, lessons of the past, is observing humanitarian cease-fires for a few hours, allowing Hamas to treat the wounded. "The fact that Israel held back and sustained rocket attacks before the decision to start the operation, and waited before launching the ground operation, also sends a message that is not one of vacillation, but a message that from the point of view of international law we will not exercise force unless it is necessary. This is measured and appropriate conduct."
"The legality is in doubt"
Adv. Michael Sfard, an expert on international law and an adviser to human rights organizations, strongly disagrees with Sasson and Benvenisti's stance. Sfard does stress that, at this stage of the operation, there are still no solid and reliable facts, but nevertheless he says that there is grave suspicion that Israel has breached the international laws of warfare.
"In my view, we can certainly expect another set of international investigations in the wake of Operation Protective Edge, mainly because of what happened at Sejaiya, but not just that," Sfard warns. He says that the deliberate and declared attacks by the IDF on the homes of Hamas activists, for example, are of dubious legality. "In order for the attacks on these homes to be legal, the army has to show factual proof that offensive military use was actually made of those homes. IDF spokespersons themselves do not claim that military use was made of every house. The fact that approval is given to zeroing in on houses in which families live just because one family member is thought to be a Hamas activist leaves me in shock," he says.
And if a Hamas activist operates from within the house?
Sfard: "Even if he operates from within the house, since there are also civilians there, it has to be shown that hitting the house is necessary, and it depends what he actually does there. An IDF commander also goes home and makes telephone calls from there and continues his work. That doesn't mean that the home becomes a legitimate target of attack."
Isn’t it like demolishing a terrorist's home?
"No, it’s not the same. In Gaza, it's a matter of a military operation and strikes on homes as part of that and not as a legal proceeding. With the home demolitions, you are talking about a different situation in which in which the action is taken after due legal process, in which objections can be raised, appeals can be made to the High Court of Justice, and so forth. Demolishing terrorists' homes is a deterrent action, and this has nothing to do with the laws of war."
"We're no allowed to do anything we like"
Sfard goes further than specific criticism of IDF operations. "In Israel, a doctrine of urban warfare has taken hold based on a legal thesis that is alarmingly remote from the way in which international experts in the laws of war view this kind of warfare."
In what way?
"For many years, at least since Operation Cast Lead, Israel's legal thesis has been that it is permissible to bomb Gaza from the air. This causes many casualties, particularly when there is also a ground incursion, accompanied by massive firepower from the Air Force and artillery. This happens when the bank of military targets is used up."
The argument is that this is essential use of firepower, part of a military doctrine and brought to bear to protect combat soldiers."
"This fire is by its nature indiscriminate. It is not aimed at specific targets. This is undirected fire liable to hit dozens if not hundreds of civilians. This is unequivocally unacceptable from the point of view of international law, which requires that fire should be directed solely at military targets. In my view, the root of the problem is that we reached the conclusion that it was permissible for us to bombard the most crowded place in the world from the air and by artillery. If this is done with precision against rocket launchers, that's one thing, but when there are over a thousand raids, that is definitely unacceptable."
Sfard's view is different from that of the previous interviewees, but he too stresses that Israeli is entitled to use force when force is used against it. "It is certainly permissible, and even obligatory, to use force. The question is the degree of danger that we face, and, deriving from that, the degree of violence that we may employ. The fact that we have managed to create a defensive system that substantially reduces the danger from Hamas's rockets means that we are not allowed to do anything we want. When you are fired upon, you are allowed to fire back at the sources of fire, even if there are civilians there, but you may not fire at the same place the next day. As far as I understand, and I don't pretend to understand everything that's happening, that really is not the story with Operation Protective Edge. We are not just firing at the sources of fire, but far in excess of this."
Sfard says that Israel acted correctly in issuing a warning before the attack on Sejaiya, but, unlike Prof. Benvenisti, he believes that the civilians there were not provided with a protected corridor via which they could reach a safe area. "I haven't seen that happening up to now," he says, "People in Gaza told me that there was nowhere safe to which they could flee, and that all parts of Gaza were being bombarded, and that if there was a safe place in the south of the Gaza Strip, it was impossible to reach it."
The gap between the opinions of the experts to some extent illustrates the weakness of international laws of war, or, more precisely, the great difficulty of enforcing them. Sasson points out that the laws of war have still not been fully adapted to fighting of the kind we see in Gaza in the midst of a densely packed urban population. "In general, international law is political, and cynically exploited," he says, "Over the years, in a cynical way, the world has been against us in this respect. Nevertheless, if the State of Israel continues to respect the rules and draw conclusions, then I would like to believe that, despite the great cynicism in this area, we will in the end be vindicated."
Israel has learned a great deal from the past," says Prof. Benvenisti, "and in Operation Protective Edge the force is more proportionate, and the international backing for the operation is correspondingly greater. This demonstrates what I have been arguing all along: that if we act in accordance with the rules, there is more international leeway for continuing the operation."
Published by Globes [online], Israel business news - www.globes-online.com - on July 24, 2014
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