Questions of legal warfare

The recent events in the area, and especially operation “Protective Edge” have once again raised questions about the relevancy of international law to asymmetric warfare. On the one hand, Israel and the IDF are making efforts to fight in accordance to the laws of war (international humanitarian law – IHL), and on the other hand, Palestinian armed groups are not only violating those rules, they are also taking advantage of Israel’s conduct by using the civilian population as human shields. However, things are not always broken down that simply, and I’m aware that there are different ways to present and observe the recent events and the conducts of all parties to the conflict.

The main principle in IHL is that even wars have limits, and Cicaro’s rule stating “silent enim leges inter arma” (in times of war the laws are silent) is not only unacceptable, but also simply incompatible with the world today. Parties to a conflict must follow the rules of war. These laws are not intended to limit the parties’ ability to fight, rather to regulate the way they fight and ensure the protection of uninvolved civilians. In a nutshell, the laws of war can be summarized as “do the most damage to the enemy while minimizing harm to [uninvolved] civilians.”

One example of such regulations of law can be seen with the recent statement by Prime Minister Netanyahu that cutting the (Israeli provided) electricity in the Gaza Strip is not an option since “the legal advisers will not allow it” — that legal prohibition is at least partially based on international law and the laws of war.

In this short piece, I’ll try to address some of the questions and dilemma which I’ve heard raised in the past few days, and provide the international law perspective to them:

The Gazans voted for Hamas and therefore they are all legitimate targets

I’ll address that without getting into the factual question of the way Hamas gained control over the Gaza Strip and whether it really enjoys the support of the people there. The rule of targeting is quite simply phrased – you are only allowed to directly attack military objectives, and are prohibited from directly attack civilian objectives. Moreover, civilians are protected from direct attacks, unless, and for such time as they are taking direct part in the hostilities. This means that while Hamas fighters and operatives are legitimate targets, supporters of Hamas or other Palestinian armed groups are not legitimate targets. In fact, they are protected under law of war from being targeted by direct attacks. It should also be noted that according to most experts’ opinions, including those of the US military forces, human shields are not considered taking direct part in the hostilities and therefore they are also not legitimate targets.

500 rockets towards Israel vs. apx. 100 casualties in Gaza

As expected in asymmetric warfare, the IDF has much more sophisticated military capabilities while the Palestinian armed groups have only limited unsophisticated rockets which do not pose as great a threat to the lives of Israelis. However, (as always) the situation is more complicated than that comparison. In fact, in terms of legal bearings, that comparison is completely irrelevant under the laws of war.

IDF’s operations are focused on two main types of attacks – offensive attacks against the Gaza Strip by IDF’s air force and drones (UAV’s), and defensive actions through use of the Iron Dome rockets to strike down rockets launched from the Gaza Strip at Israel. As long as the offensive operations are conducted in accordance with the applicable rules (meaning – against military targets, while taking all feasible precautions and without causing excessive collateral damage), not only are they allowed, such offensive attacks cannot be compared to related to the offensive response of the Palestinian armed groups With regard to the Palestinian rockets – the (fortunately) low number of casualties does not render such attacks legitimate. The firing of rockets explicitly and boastfully aimed at harming the entire civilian population is completely prohibited. However, the laws of war are not subject to reciprocity – the fact that the Palestinian armed groups violate the laws of war does not provide Israel carte blanche to violate the laws against Palestinians. In every event where there’s a genuine suspicion of an IHL violation by the IDF, a proper investigation ought to be conducted.

Attacking the houses of Hamas leaders is a war crime

This claim relates first and foremost to the notion of “legitimate military target” (which defines what targets you are allowed to attack). To put it simply, the laws of war define a legitimate target as one that can be identified by its nature, location, purpose or use which provides an effective contribution to the adversary. Therefore, a residential house which also serves as an arsenal for weapons is a legitimate target, a hospital or a mosque from which rockets are being launched is a legitimate target, and an ambulance being used to transfer combatants is a legitimate target.

On the other hand, the residential house of a Hamas fighter as is, doesn’t provide an effective contribution simply because that fighter is provided a bed and a meal there, all the more so when the fighter is not even present in the house. Nevertheless, the Hamas fighter is a legitimate target, as he or she is taking direct part in the hostilities. In certain scenarios, the legitimate objective of the attack can be against the fighter himself, and any other damage would be considered “collateral damage” and must remain proportionate to the expected military gain from the attack.

Any uninvolved casualty is excessive

The notion of proportionality is one of the most simple to framed and complicated to analyze under the laws of war. On the one side of the equation, we find the “expected collateral damage”, and on the other side of the equation we have the “direct military advantage anticipated from the operation”. In order for an attack to be unlawful, the expected collateral damage must be greater than the direct military advantaged anticipated from the operation. The one clear outcome of that rule is that uninvolved civilians might die in the course of combat, and as unfortunate as that is, it doesn’t mean that it’s illegal, rather it’s a question of proportionality.

Many attempts and formulas have been constructed to implement this utopian proportionality equation, which raises many difficulties, as there are probably as many interpretations on that matter as the amount of international lawyers in each state and in military forces. Each military force has its own approach to analyzing the equation. At the end of the day, it is not the lawyer who must make the final decision on whether or not to attack — it’s the military commander, and so long as the military commander’s decision passes the “reasonable commander” test, then it’s legitimate.

When trying to analyze the collateral damage we must take into account that the proportionality equation addresses the “expected collateral damage” and not necessarily the actual damage created. While the obligation of the attacking forces is to take all feasible measures to have accurate intelligence and to minimize the collateral damage, under the fog of war the information is not always perfect and mistakes do happen. It is important that when they do happen, a proper inquiry will be conducted to ensure that all of the relevant precautionary measures were in fact taken into account.

There are many more relevant questions and I cannot address all of them in this short piece, such as the use of human shields, applicability/relevancy of the laws of occupation, international criminal court, and more. If you have any further question about the applicable rules of international law to the recent events, you can post them on ALMA’s Facebook page on under twitter using #AskIHL.