Transcript Legal Aspects of the Gaza Conflict

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:
Sovereign State
authorized to use
force to protect its
civilians
Terrorist
organization –
resort to force
unlawful
Commitment to
respecting LOAC
Hamas explicit
rejection of LOAC
Strenuous efforts to
extend ceasefire and
avoid conflict
Rejection of
ceasefire –
escalation of
conflict
Nevertheless: Israel bound by LOAC
Legal Input into IDF operations
 Geneva Conventions
included in IDF commands
 Mandatory training and
Computer tutorials
Prior to
conflict
PreOperation
Lessons
 Investigation of incidents Learned
During
Operation
 Changes to command rules
and Operational procedures
 Legal Advice at HQ and
Command level
 Operational planning and
targeting
 Legal advisers in daily
situation meetings
 24/7 Military Legal Advice
Center availability
Basic Principles in Armed Conflict
1.
Military Necessity
1.
Distinction
2.
Proportionality
3.
Humanity
1. The Principle of
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”
Napoleon Bonaparte
Elements of Military Necessity

Confronting the adversary’s weapons and
ammunition
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Confronting terrorist infrastructure
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Force protection
Confronting weapons and
ammunition
Missiles fired from Gaza 2003-2008
Total 8, 827 rockets and mortars
Increasing range of missiles
Confronting terrorist infrastructure
Weapons-smuggling tunnels discovered between Gaza and Egypt
Force protection
Gilad Shalit – abducted 25 June 2006
Over 1000 days in captivity
Hamas’ strategic goal of kidnapping soldiers
has operational implications
2. The Principle of Distinction
Distinction
Obligation to distinguish between adversary’s civilians and
combatants
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…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.
Additional Protocol I, Article 51(2)
Violating the Principle of Distinction
Hamas posters boasting of missiles destroying
civilian homes in Israel’s southern cities
Distinction (contd.)
Obligation to distinguish between own side’s civilians and
combatants
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The presence of a protected person may not be used to render
certain points or areas immune from military operations.
IVth 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.
Additional Protocol I, Article 51(7)
Abuse of the principle of distinction
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Firing from civilian areas
Weapons stores, R&D facilities, training
bases & headquarters in homes, schools
and mosques
Dressing as civilians
Recruiting children
Booby-traps
Human shields
Firing from civilian areas
Rockets fired from rooftop
Mortar launching squad firing
from front of school (2007)
(click picture to view film)
Firing into Israel from Beti Lahia
Rockets fired at Ashkelon from
behind cemetery
Shielding Military Operations with Civilian
Facilities - Sheikh Radhwan Neighborhood
Note proximity of firing points and military bases (red) to schools and
other protected sites
Rocket launch site in
Shati Neighborhood
Launcher positioned next to medical center, center for disabled and
soccer stadium
Abuses of Distinction
- weapons storage and factories
Weapons storage
Heavy Weapons found in Jabalia
mosque – 13 Jan 2009
Weapons factories
Manufacturing rockets in private
house in Northern Gaza
Combatants dressing as civilians
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“The commander, shaheed
Muhammad Salameh Hilles,
head of the mortar shells
unit in Saja’iya and a lion
of the special unit.”
…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)
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”
An eight-year old boy in the
Jabaliya refugee camp to
Hamas magazine Al-Risala,
March 7, 2008
Children in uniform train at a
PRC camp (Hamas’ PALDF
Forum).
Abuses of Distinction - Booby traps
Hamas operational map of al-Atatra showing
booby trapped homes, a gas station wired to
explode and sniper positions inside mosques
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 2008
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6.12 - Kerem Shalom: Four rockets
fired at the Kerem Shalom crossing fell on
the Rafah Crossing. Egypt held Hamas
responsible.
20.12– Beit Hanoun: Two five-year old
children wounded by an explosion,
apparently caused by a rocket which fell in
the Gaza Strip
24. 12 - Tal al Hawa: Rocket falls on
house of Imad al-Drimli, correspondent for
a German news agency
26.12 – 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’?
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….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
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Weapon selection – precision munitions,
size of explosive
Method of operation – direction of strike,
angle, delay fuse
Timing – time of least occupancy
Cross-Verification of intelligence
Coordinated maps showing protected
facilities – schools, medical facilities etc
(1866 ‘sensitive sites’ in Gaza)
3. The Principle of
Proportionality
Proportionality
No general requirement of proportionality with armed conflict
Obligation to refrain from excessive civilian harm
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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”
Major General A.P.V. Rogers, a former Director of British Army Legal Services
Principles of Proportionality
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Forward-looking test - expectation not result
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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".
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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
Humanitarian
Commitments
Protect
own side’s
Civilians
Intelligence
- verification
Force
Commander
Legal
Constraints
Force
Protection
Minimize
Collateral
Harm to
civilians
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
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Early warning:
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click for more details
Flyers
Phone calls
Preliminary light attacks
Aborting planned attacks
click for more details
“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))
4. The Principle of Humanity
Humanitarian Efforts during the
Gaza Operation
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Establishment of MDA forward MDA clinic at Erez Crossing Point
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68 chronically ill people and their escorts made their way from Gaza
to Israel, the West Bank and Jordan
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37,159 tons of humanitarian aid on 1503 trucks were transferred via
the Kerem Shalom and Karni crossings (food, medication and
medical supplies)
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449 dual nationals were evacuated via the Erez Crossing
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120 humanitarian officers appointed
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24/7 Humanitarian Affairs Coordination Center
Abuse of humanitarian efforts
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Abuse of humanitarian window to launch
increased amount of rockets (60% attacks)
Attacks on crossings (Nahal Oz and Karni)
Firing from the immediate vicinity of
international installations (UNRWA hospitals etc.)
Use of ambulances to deploy/transport terrorists
Theft of humanitarian supplies
Artificial creation of shortages (fuel)
Prevention of medical evacuation of Palestinians
to Israel
Abuses of humanitarian efforts
- attacks on crossing points
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Truck bomb explodes at Erez
Crossing Point
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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
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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) (contd.)
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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) (contd.)
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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.
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.
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
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“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
‘Democracies fight with one hand tied behind their hand – but that
is why they have the upper hand” – Justice Barak HCJ 769/02