Tuesday, August 5, 2014

Israel is not violating international law in Gaza - part 1: Principle of Distinction

Israel is not violating international law in Gaza - part 1: Principle of Distinction

I have described how Hamas is violating at least 19 principles of international law in the current fighting.

Now, is Israel?

The criticism most often given of Israel's actions is that it is violating the "principle of distinction." The Geneva Conventions Additional Protocol 1, article 52, states it this way:
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to 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.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.
Many countries, when they ratified this article, clarified it to ensure that collateral damage is not covered by the first sentence of paragraph 2. So, for example, Canada wrote:
It is the understanding of the Government of Canada in relation to Article 52 that ...the first sentence of paragraph 2 of the Article is not intended to, nor does it,deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.
Italy, Australia, the UK, France and New Zealand added similar language (CIHL II para. 83-91)

Logic dictates that it cannot be otherwise. If these caveats aren't in place, then anyone can make any military target immune from attack placing a civilian there, or placing the target in a house or church or hospital that is still used as such. So, for example, Australia's Defence Force Manual states:
The presence of noncombatants in or around a military objective does not change its nature as a military objective. Noncombatants in the vicinity of a military objective must share the danger to which the military objective is exposed.
Note that we are not saying that the existence of civilians at a military target can be ignored; that is part of the Proportionality discussion that will be forthcoming. But clearly international law allows the attack on military targets even if there are some civilians there.

Who determines whether something is a military target or not?

It is not reporters, or eyewitnesses, or residents of nearby houses, or human rights organizations. That decision is given to the military commander, based on the best available information at the time.

So, for example, The Military Manual of the Netherlands says that “the definition of ‘military objectives’ implies that it depends on the circumstances of the moment whether an object is a military objective. The definition leaves the necessary freedom of judgement to the commander on the spot."

Sweden's IHL manual states "it is up to the attacker to decide whether the nature, location, purpose or use of the property can admit of its being classified as a military objective and thus as a permissible object of attack. This formulation undeniably gives the military commander great latitude in deciding, but he must also take account of the unintentional damage that may occur. The proportionality rule must always enter into the assessment even though this is not directly stated in the text of Article 52." (para. 335, 338)

The military commander is not only concerned with the safety of the civilians in the area. The commander is also concerned with the safety of his or her own troops. The US Naval Handbook says "Military advantage may involve a variety of considerations, including the security of the attacking force." (para. 339)

Civilian sites can become valid military objectives. So, for example, Australia’s Defence Force Manual lists among military objectives “objects, normally dedicated to civilian purposes, but which are being used for military purposes, e.g. a school house or home which is being used temporarily as a battalion headquarters”. The manual specifies that "For this purpose, 'use' does not necessarily mean occupation. For example, if enemy soldiers use a school building as shelter from attack by direct fire, then they are clearly gaining a military advantage from the school. This means the school becomes a military objective and can be attacked." (para. 687)

Israel's Manual on the Laws of War goes even further to protect civilians: (para 694)
A situation may arise where the target changes its appearance from civilian to military or vice versa. For instance, if anti-aircraft batteries are stationed on a school roof or a sniper is positioned in a mosque’s minaret, the protection imparted to the facility by its being a civilian object will be removed, and the attacking party will be allowed to hit it . . . A reverse situation may also occur in which an originally military objective becomes a civilian object, as for instance, a large military base that is converted to a collection point for the wounded, and is thus rendered immune to attack.

However, attacks may not be indiscriminate.

It is ultimately up to the commander to determine the nature of the specific, fluid situation. Everything hinges on his or her intent - not on the judgment of other observers and not on finding out better information in hindsight. As stated by Rüdiger Wolfrum and Dieter Fleck in The Handbook of International Humanitarian Law, "The prerequisite for a grave breach (of IHL) is intent; the attack must be intentionally directed at the civilian population or individual civilians, and the intent must embrace physical consequences."

In order to find that the commander has committed a war crime, the bar is set quite high. ICRC commentary on art 85 of the Additional Protocol states:
The accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the ("criminal intent" or "malice aforethought"); this encompasses the concepts of "wrongful intent" or "recklessness"....

As long as the IDF did not deliberately attack civilians, and the local commander had a military purpose for each target based on the best information available at the time, there is no violation of the principle of distinction.

Clearly, the observers on the ground and around the world who are looking at the results through the distorted lens of TV cameras cannot possibly know what the intent of the IDF commanders are. They don't know the specific intelligence available, the real-time situation on the ground, the danger to IDF troops or Israeli civilians (in the case of targeting rocket launchers,) the topography of the area (when, for example, the IDF needs to take high ground in order to protect its troops) - none of that is available to the armchair analysts who breezily and ignorantly say that IDF actions could amount to war crimes. The bar to determine that is incredibly high, and is not decided by people at Human Rights Watch who change international law at will for their purposes.

The argument that Israel is deliberately attacking civilians has another fatal flaw: if the policy was to attack civilians, then is it difficult to explain how thousands of air strikes and thousands more artillery strikes have killed so few. If the objective is civilian, then there would be tens of thousands of civilian victims. One cannot claim that the IDF is both a uniquely bloodthirsty army using precision weapons to target civilians and at the same time maintain that the IDF is so poor at targeting. Anyone claiming that the IDF is deliberately targeting civilians is either grossly ignorant of how wars are waged, or they are willfully slandering the army.


Caveat - I am not a lawyer. I am getting much of this from the IDF initial response to the Goldstone Report, and as of yet I have not seen a single scholarly rebuttal to the legal aspects mentioned in that report. If someone has written such a rebuttal, please let me know.

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