Legal Aspects of the Legal Aspects of the Gaza Operation Gaza Operation

December 27, 2008 – January 17, 2009December 27, 2008 – January 17, 2009

Office of the Legal AdviserOffice of the Legal AdviserMinistry of Foreign AffairsMinistry of Foreign Affairs

March 2009March 2009

Law of Armed Conflict (LOAC)Law of Armed Conflict (LOAC)

Even though the conflict in Gaza was Even though the conflict in Gaza was between:between:

Nevertheless: IDF bound by LOACNevertheless: IDF bound by LOAC

Sovereign State - Sovereign State - authorized to use authorized to use forceforce to protect its to protect its civilians civilians

Terrorist Terrorist organization organization –– resort to force resort to force unlawfulunlawful

CommitmentCommitment to to respecting LOACrespecting LOAC

Hamas explicit Hamas explicit rejectionrejection of of LOACLOAC

Strenuous efforts Strenuous efforts to to extend ceasefireextend ceasefire and avoid conflictand avoid conflict

Rejection of Rejection of ceasefireceasefire –– escalation of escalation of conflictconflict

Some Preliminary QuestionsSome Preliminary Questions

Self defence against non-state Self defence against non-state actors?actors?

Status of Gaza Strip?Status of Gaza Strip?

Internal or International armed Internal or International armed conflict?conflict?

Legal Input into IDF operationsLegal Input into IDF operations

Pre-Operation

LessonsLearned

Prior to conflict

During Operation

Geneva Conventions included in IDF commands Mandatory training andComputer 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 ConflictBasic Principles in Armed Conflict

Military NecessityMilitary Necessity

DistinctionDistinction

ProportionalityProportionality

HumanityHumanity

Military NecessityMilitary Necessity

NecessityNecessity

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

Napoleon Bonaparte Napoleon Bonaparte

Elements of Military NecessityElements of Military Necessity

Confronting the adversaryConfronting the adversary’’s weapons s weapons and ammunitionand ammunition

Confronting terrorist infrastructureConfronting terrorist infrastructure

Force protectionForce protection

Confronting weapons and Confronting weapons and ammunitionammunition

Increasing range of missiles Increasing range of missiles

Missiles fired from Gaza 2003-Missiles fired from Gaza 2003-20082008

Total 8, 827 rockets and Total 8, 827 rockets and mortarsmortars

Confronting terrorist infrastructureConfronting terrorist infrastructure

Weapons-smuggling tunnels discovered between Gaza Weapons-smuggling tunnels discovered between Gaza and Egyptand Egypt

Force protectionForce protection

Gilad SchalitGilad Schalit

1000 days in captivity1000 days in captivity

The Principle of The Principle of DistinctionDistinction

DistinctionDistinction

Obligation to distinguish between Obligation to distinguish between adversaryadversary’’ss civilianscivilians and and combatantscombatants

……the Parties to the conflict shall at all times distinguish the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between the civilian population and combatants and between civilian objects and military objectives and between civilian objects and military objectives and accordingly accordingly shall direct their operations only against shall direct their operations only against military objectives military objectives

Additional Protocol I, Article 48 Additional Protocol I, Article 48

The civilian population as such, as well as individual The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats civilians, shall not be the object of attack. Acts or threats of violence of violence the primary purpose of which is to spread the primary purpose of which is to spread terror among the civilian population are prohibitedterror among the civilian population are prohibited. .

Additional Protocol I, Article 51(2)Additional Protocol I, Article 51(2)

Violating the Principle of DistinctionViolating the Principle of Distinction

Hamas posters boasting of missiles Hamas posters boasting of missiles destroying civilian homes in Sderotdestroying civilian homes in Sderot

Distinction (contd.)Distinction (contd.)Obligation to distinguish between Obligation to distinguish between own sideown side’’ss

civilians civilians and and combatantscombatants

The presence of a The presence of a protected personprotected person may not be used to may not be used to render certain points or areas render certain points or areas immune from military immune from military operationsoperations. .

IVIVthth Geneva Convention, Article 28 Geneva Convention, Article 28

The presence or movements of the civilian population or The presence or movements of the civilian population or individual civilians shall not be used to render certain individual civilians shall not be used to render certain points or areas immune from military operations, in points or areas immune from military operations, in particular particular attempts to shield military objectives from attempts to shield military objectives from attacks or to shield, favour or impede military attacks or to shield, favour or impede military operations.operations.

Additional Protocol I, Article Additional Protocol I, Article 51(7) 51(7)   

Abuse of the principle of distinctionAbuse of the principle of distinction

Firing from civilian areasFiring from civilian areas Weapons stores, R&D facilities in Weapons stores, R&D facilities in

homes, schools and mosqueshomes, schools and mosques Training bases and headquarters Training bases and headquarters Dressing as civiliansDressing as civilians Recruiting childrenRecruiting children Booby-trapsBooby-traps Human shieldsHuman shields

Firing from civilian areasFiring from civilian areas

Rockets fired from rooftopRockets fired from rooftop Firing into Israel from Beti lahiaFiring into Israel from Beti lahia

Mortar launching squad firing Mortar launching squad firing from front of School (2007)from front of School (2007)

(click picture to view film)(click picture to view film)

Rockets fired at Ashkelon from Rockets fired at Ashkelon from behind cemeterybehind cemetery

Location of bases and training Location of bases and training centers – Tel Al- Zatarcenters – Tel Al- Zatar

Note proximity of firing points from schools and other Note proximity of firing points from schools and other protected sitesprotected sites

Location of bases and training Location of bases and training centers – Jabaliacenters – Jabalia

Note proximity of firing points from schools and other Note proximity of firing points from schools and other protected sitesprotected sites

Rocket launcher in Rocket launcher in Shati refugee campShati refugee camp

Launcher positioned next to medical center, center for Launcher positioned next to medical center, center for disabled and soccer stadiumdisabled and soccer stadium

Abuses of DistinctionAbuses of Distinction - weapons storage and factories - weapons storage and factories

Weapons storageWeapons storage

Weapons found in Jabalia Weapons found in Jabalia mosquemosque

Weapons factoriesWeapons factories

Manufacturing rockets in Manufacturing rockets in private house in Northern private house in Northern GazaGaza

Combatants dressing as civiliansCombatants dressing as civilians

……combatants are combatants are obliged to distinguish obliged to distinguish themselves from the themselves from the civilian population civilian population while they are while they are engaged in an attack engaged in an attack or in a military or in a military operation operation preparatory to an preparatory to an attackattack

Additional Protocol I, Additional Protocol I, 44(3)44(3)

“The commander, shaheedMuhammad Salameh Hilles,head of the mortar shellsunit in Saja’iya and a lion

of the special unit.”

Abuses of distinction - recruiting childrenAbuses of distinction - recruiting children

The Parties to the conflict shall take all The Parties to the conflict shall take all feasible measures in order that feasible measures in order that children children who have not attained the age of fifteen who have not attained the age of fifteen yearsyears do not take a direct part in do not take a direct part in hostilities, and in particular, they shall hostilities, and in particular, they shall refrain from refrain from recruiting themrecruiting them into their into their armed forcesarmed forces

Additional Protocol I, Additional Protocol I, 77(2)77(2)

Abuses of distinction - recruiting childrenAbuses of distinction - recruiting children

““I like to help the I like to help the resistance and I am not resistance and I am not afraid of the Zionist afraid of the Zionist occupationoccupation…… I charge I charge their cell phones and their cell phones and serve them teaserve them tea…… A group A group of friends and I burned of friends and I burned tires to keep the Zionist tires to keep the Zionist planes from attacking the planes from attacking the resistanceresistance””

An eight-year old boy in theAn eight-year old boy in the

Jabaliya refugee camp to Jabaliya refugee camp to

Hamas magazine Al-Risala,Hamas magazine Al-Risala,

March 7, 2008March 7, 2008

Children in uniform train at a PRC camp (Hamas’ PALDF Forum, August 22).

Abuses of Distinction - Booby trapsAbuses of Distinction - Booby traps

Hamas map showing civilian homes Hamas map showing civilian homes wired and booby trapped to explodewired and booby trapped to explode

Booby-trapped residential building

Abuses of Distinction - Human Abuses of Distinction - Human ShieldsShields

Armed terrorist uses child as shield to Armed terrorist uses child as shield to cross exposed road cross exposed road (click picture for film)(click picture for film)

““Work accidents” resulting from preparing Work accidents” resulting from preparing explosives in residential areasexplosives in residential areas

Result of Explosion at Result of Explosion at weapons factory in Beit weapons factory in Beit Lahiya Lahiya

‘‘Work accidentsWork accidents’’ in December 2008 in December 2008

6.12 - Kerem Shalom6.12 - Kerem Shalom: : Four rockets Four rockets fired at the Kerem Shalom crossing fired at the Kerem Shalom crossing fell on the Rafah Crossing. Egypt held fell on the Rafah Crossing. Egypt held Hamas responsible.Hamas responsible.

20.1220.12–– Beit Hanoun Beit Hanoun: Two five-year : Two five-year

old children wounded by an old children wounded by an explosion, apparently caused by a explosion, apparently caused by a rocket which fell in the Gaza Striprocket which fell in the Gaza Strip

24. 12 - Tal al Hawa: 24. 12 - Tal al Hawa: Rocket falls Rocket falls on house of Imad al-Drimli, on house of Imad al-Drimli, correspondent for a German news correspondent for a German news agencyagency

26.12 26.12 –– Beit Hanoun: Beit Hanoun: Explosion kills Explosion kills two girls aged 5 and 13. Palestinian two girls aged 5 and 13. Palestinian man wounded by a rocket transferred man wounded by a rocket transferred to Israel for medical treatmentto Israel for medical treatment

December 27-31December 27-31:: (first five days of (first five days of Operation Cast Lead) Operation Cast Lead) about 6.5% of about 6.5% of the rockets fired at Israel fell in the the rockets fired at Israel fell in the Gaza StripGaza Strip

Distinction – lawful responsesDistinction – lawful responses

What is a lawful What is a lawful ‘‘military objectivemilitary objective’’??

…….those objects which by their nature, .those objects which by their nature, location, purpose or use make an location, purpose or use make an effective effective contribution to military actioncontribution to military action and whose and whose total or partial destruction, capture or total or partial destruction, capture or neutralization, in the circumstances ruling neutralization, in the circumstances ruling at the time, offers a at the time, offers a definite military definite military advantageadvantage

Additional Protocol I, Additional Protocol I, Article 52 (2)Article 52 (2)

Distinction – Distinction – Precautionary Precautionary measures in targeting measures in targeting

Weapon selection Weapon selection –– precision precision munitions, size of explosive munitions, size of explosive

Method of operation Method of operation –– direction of direction of strike, angle, delay fusestrike, angle, delay fuse

Timing Timing –– time of least occupancy time of least occupancy Cross-Verification of intelligenceCross-Verification of intelligence Coordinated maps showing protected Coordinated maps showing protected

facilities facilities –– schools, medical facilities schools, medical facilities etc (1866 etc (1866 ‘‘sensitive sitessensitive sites’’ in Gaza) in Gaza)

The Principle of The Principle of ProportionalityProportionality

ProportionalityProportionality

No general requirement of proportionality with armed No general requirement of proportionality with armed conflictconflict

Obligation to refrain from Obligation to refrain from excessive civilian harmexcessive civilian harm

Disproportionate attack: an attack which may be expected Disproportionate attack: an attack which may be expected to cause incidental loss of civilian life, injury to civilians, to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which damage to civilian objects, or a combination thereof, which would be would be excessive in relation to the concrete and direct excessive in relation to the concrete and direct military advantage anticipatedmilitary advantage anticipated. .

Additional Protocol I, Additional Protocol I, 51(5)(b)51(5)(b)

““It may not be possible to limit the radius of effect entirely It may not be possible to limit the radius of effect entirely to the objective to be attackedto the objective to be attacked…… Members of the armed Members of the armed forces are forces are not liable for such incidental damagenot liable for such incidental damage, provided it , provided it is proportionate to the military gain expected of the attackis proportionate to the military gain expected of the attack””

Major General A.P.V. Rogers, a former Director of British Army Legal Major General A.P.V. Rogers, a former Director of British Army Legal ServicesServices

Principles of ProportionalityPrinciples of Proportionality

Forward-looking test - expectation not resultForward-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 United Kingdom declaration on signing API: "the advantage anticipated from the attack anticipated from the attack considered as aconsidered as a whole and not only whole and not only from isolated or particular parts of the attack".from isolated or particular parts of the attack".

Reasonable assessment of the military Reasonable assessment of the military commander at the time commander at the time "It is unlikely that a human rights lawyer and an experienced "It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to combat commander would assign the same relative values to military advantage and to injury to noncombatants.military advantage and to injury to noncombatants.…… It is It is suggested that suggested that the determination of relative values must be that the determination of relative values must be that of theof the 'reasonable military commander 'reasonable military commander‘”‘” ““((Committee Established Committee Established to Review NATO Bombings in Yugoslaviato Review NATO Bombings in Yugoslavia ) )

Proportionality considerations in urban Proportionality considerations in urban warfarewarfare

Intelligence -verification

LegalConstraints

Minimize CollateralHarm to civilians

Force Protection

ProtectIsraeli

Civilians

HumanitarianCommitments

Force Commander

Abuse of proportionality principleAbuse of proportionality principle- human shielding- human shielding

““The defender has The defender has the primary duty the primary duty of protecting the of protecting the civilian population civilian population and removing and removing civilians from civilians from military targets, if military targets, if necessarynecessary””

W. Hays Parks, W. Hays Parks, Air law and the Law of WarAir 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 principleAbuse of proportionality principle- human shielding- human shielding

““TheThe Palestinian Palestinian peoplepeople…… created a created a human shield of human shield of women, children, women, children, the elderly and the the elderly and the Jihad fightersJihad fighters……We We desire death as desire death as you desire life.you desire life.”” Fathi Fathi HamadHamad

Hamas leader Fathi Hamad praises human shield strategy shields on Al-Aqsa TV, March 1, 2007 (click picture for link)

Proportionality - PrecautionsProportionality - Precautions Aborting planned attacks Aborting planned attacks click for click for

link link Early warning: Early warning:

Flyers Flyers Phone calls Phone calls Preliminary light attacksPreliminary light attacks

““effective advance warning shall be given of effective advance warning shall be given of attacks which may affect the civilian attacks which may affect the civilian population, population, unless circumstances do not unless circumstances do not permitpermit””

Additional Protocol I, Additional Protocol I, 57(2)(c))57(2)(c))

The Principle of HumanityThe Principle of Humanity

HumanityHumanity - humanitarian efforts - humanitarian efforts

Establishment of MDA forward MDA clinic at Erez Crossing Establishment of MDA forward MDA clinic at Erez Crossing PointPoint

68 chronically ill people and their escorts made their way 68 chronically ill people and their escorts made their way

from Gaza to Israel, the West Bank and Jordan from Gaza to Israel, the West Bank and Jordan

37,159 tons of humanitarian aid on 1503 trucks 37,159 tons of humanitarian aid on 1503 trucks werewere  transferred via the Kerem Shalom and Karni crossings transferred via the Kerem Shalom and Karni crossings (food, medication and medical supplies) (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 appointed120 humanitarian officers appointed

24/7 Humanitarian Affairs Coordination Center24/7 Humanitarian Affairs Coordination Center

Abuse of humanitarian effortsAbuse of humanitarian efforts

Abuse of humanitarian window to launch Abuse of humanitarian window to launch increased amount of rockets (60% attacks)increased amount of rockets (60% attacks)

Attacks on crossings (Nahal OzAttacks on crossings (Nahal Oz  and Karni)and Karni) Launching and firing from the immediate Launching and firing from the immediate

vicinity of international installations vicinity of international installations (UNRWA hospitals etc.) (UNRWA hospitals etc.)

Use of ambulances to mobilize terrorists Use of ambulances to mobilize terrorists Theft of humanitarian suppliesTheft of humanitarian supplies Artificial creation of shortages (fuel) Artificial creation of shortages (fuel) Prevention of medical evacuation of Prevention of medical evacuation of

Palestinians to Israel Palestinians to Israel

Abuses of humanitarian effortsAbuses of humanitarian efforts- attacks on crossing points- attacks on crossing points

Truck bomb explodes at Erez Truck bomb explodes at Erez Crossing PointCrossing Point

Two Israeli employeesTwo Israeli employees  of the of the Nahal Oz fuel terminal were killed Nahal Oz fuel terminal were killed when Palestinian terrorists fired when Palestinian terrorists fired mortars at the terminalmortars at the terminal

Abuses of Humanitarian arrangements – attacks Abuses of Humanitarian arrangements – attacks on crossing points in 2008on 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 – Abuses of Humanitarian arrangements – attacks on crossing points (2008)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 – Abuses of Humanitarian arrangements – attacks on crossing points (2008)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 – Abuses of humanitarian arrangements – hospitals and ambulances hospitals and ambulances

Two ambulances, Two ambulances, marked marked ““Red CrossRed Cross”” and and ““UN,UN,”” used to used to evacuate terroristsevacuate terrorists

(click picture for film)(click picture for film)

Humanity – Abuses of humanitarian Humanity – Abuses of humanitarian protectionprotection

Anas Naim Anas Naim –– classified as a classified as a ‘‘medicmedic’’ in in Palestinian fatality listPalestinian fatality list

Medicine bottles, brought in as Medicine bottles, brought in as humanitarian aid, converted to humanitarian aid, converted to Hamas grenadesHamas grenades

Finding a lawful balance Finding a lawful balance

HCJ- Israel’s Supreme CourtHCJ- Israel’s Supreme Court

““A military commanderA military commander’’s obligation does not end s obligation does not end with avoiding harm to the lives and the dignity of with avoiding harm to the lives and the dignity of the local residents, a the local residents, a ““negative obligationnegative obligation””, but , but his his obligation is also obligation is also ‘‘positivepositive’’ –– he must protect the he must protect the lives and dignity of the residents, within the lives and dignity of the residents, within the constraints of the time and placeconstraints of the time and place……..”” - Justice Barak - Justice Barak HCJ 764/04HCJ 764/04

““As long as Israel has control of the transfer of As long as Israel has control of the transfer of necessities and the supply of humanitarian needs to necessities and the supply of humanitarian needs to the Gaza Strip, it the Gaza Strip, it is bound by the obligations of is bound by the obligations of international humanitarian lawinternational humanitarian law to allow the civilian to allow the civilian population to have access, population to have access, inter aliainter alia, to medical , to medical facilities, food and water, as well as additional facilities, food and water, as well as additional humanitarian items.humanitarian items.”” - Justice Beinisch HCJ 201/09 - Justice Beinisch HCJ 201/09

HCJ- Israel’s Supreme CourtHCJ- Israel’s Supreme Court

““Democracies fight with one hand Democracies fight with one hand tied behind their hand tied behind their hand –– but that is but that is why they have the upper handwhy they have the upper hand””

Justice Barak HCJ Justice Barak HCJ 769/02769/02