Hannibalizing the laws of war

Published in recent days, the internal Israeli army report on the “Black Friday” incident last summer in Rafah, during the war in Gaza, concluded that the “Hannibal Protocol”, namely the opening of heavy fire in order for the abduction of an Israeli soldier to be foiled, was proportionate since it blocked the kidnappers’ escape routes. The report notes that the Israeli soldiers found themselves in a territory that was not secured. Consequently — the report seems to imply — the troops acted properly not according to the legal standards the laws of war generally dictate, but on account of the unique circumstances they faced. This is further buttressed by the report’s conclusion that the soldiers encountered a “confusing and unreasonable situation”.

If indeed this is the implication, then it is problematic. Warfare is full of unique, unknown circumstances. Lack of effective control over an area can signify the non application of the laws of war or human rights law in their totality, as legal fields. This has been recently asserted by the Human Rights Committee in its report on Israel’s obligations towards Gaza. Yet never has the argument been that lack of effective control can justify deviation from the accepted norms in the laws of war, as the “Hannibal Protocol” suggests. If indeed this is the underlying suggestion, then it has to be postulated more thoroughly in the course of a legal, criminal investigation and not just in the realms of an internal army report.

Moreover, it is difficult to fathom how the “Hannibal Protocol” respected the principles of distinction and proportionality. Militants and civilians were targeted alike.

It can be argued that due to the abstract nature of firing, civilians were not deliberately targeted, but circumstances rendered their death inevitable. Yet, this is not evident and has to be further proved and demonstrated by the Israeli army in the realms of a legal procedure.

Moreover, the issue of proportionality is left open. Soldiers must not conduct an attack due to cause incidental civilian injury or death excessive to the concrete and direct military advantage expected to be achieved. The report takes the stance that foiling a soldier’s kidnapping and the averting of all the hurdles, psychological and physical as well as social, security and political, such kidnapping entails for the soldier, his family but also for his state and the wider society, is such a cardinal goal that puts the threshold high in order for any civilian deaths to be deemed as excessive. While this line of thought can be pursued, it has to be further refined through legal dialogue.

At the same time, it is also doubtful whether the civilian deaths incurred could be branded as “incidental”. In international criminal law, war crimes can be asserted even if soldiers do not intend the civilian deaths but are aware that these will occur in the ordinary course of events. Legal scholars have argued that soldiers must be sure these deaths will certainly and not probably occur.

Coming to apply the “Hannibal Protocol”, it can be argued that once again, due to the abstract nature of firing, soldiers are not aware of whether and to which extent civilians are present once the incident takes place. Accordingly, they cannot know that civilians will definitely die. Whether or not ultimately shared by the wider academic and judicial community, the complex parameters this argument entails render its presentation feasible only in the realms of a legal forum.

Additionally, and judging from the repercussions of the Gilad Schalit abduction in 2006, the advantage stemming from the thwarting of the kidnapping operation should be perceived more as macro-political rather than military, namely operational, and direct as the laws of war require.

The notion of the “military advantage” could be broadened to encompass broader geopolitical military considerations, not just being narrowed to a particular incident. Already when it comes to issues of self-defense, prominent international law scholars have argued that not only the scale of a particular incident, but its general impact should be taken into account. The transplantation of this logic to the laws of war is possible but not self evident. For this, a responsible international law discussion has to take place on professional grounds.

Certain Israeli army officials, including the Israeli Defense Minister, Moshe Yaalon, have expressed the stance that the “Black Friday” incident should remain outside the scope of any criminal investigation. Yet, exactly because it involves the clarification of many complex legal issues, it should fall within. The Army Prosecutor should utter his stance. If consequently, the International Criminal Court feels that issues have been left open and that it should step in to contribute to the whole legal discourse, this should be welcomed. As long as the debate is not affected by any politicization and partisanship, it will ultimately end up nurturing and not “hannibalizing” the laws of war.