With the release of the UN Commission of Inquiry’s report on Operation Protective Edge approaching, it is noteworthy to recall some fundamental principles that can help us understand the findings of Israel’s internal investigations published recently, and might come handy in the course of analyzing any future reports.
Recently, the IDF Military Advocate General (MAG) published an update on some of Israel’s internal investigations on Operation Protective Edge incidents. The update was released towards the publication of the report of the UN Commission of Inquiry (still known as “The Schabas Committee,” although it is now headed by Judge McGowan-Davis).
According to the MAG’s report, the IDF has examined 190 alleged exceptional incidents; 105 of them were concluded and referred to the MAG who decides whether to close the case, open a criminal investigation or issue indictments.
In this short piece I focus on three particularly controversial incidents: the death of four children on the Gaza beach, the targeting of a medical facility, and conducting an attack without any advance warning. I discuss some important principles deriving from these incidents, which should help us to understand some aspects of the laws of armed conflict as well as the importance of the investigative process.
The death of four children on the Gaza beach – On July 16th, 2014, as a result of an IDF aerial attack, four Palestinian children were killed on the beach, adjacent to the Gaza port. Following the preliminary investigation, the MAG concluded that the incident took place in an area that had long been known as a compound belonging to Hamas’s Naval Police and Naval Force (naval commandos), and according to the corroborated intelligence, prior to the incident at hand was utilized exclusively by militants. On the day of the attack IDF identified a few figures running in the compound and entering a shed adjoining a container. According to the report the IDF failed to identify them as children using the available aerial surveillance and concluded that they were militants.
One of the most important principles of the laws of armed conflict is that the legality of an attack is determined under the information available at the time of the attack, and not in accordance with the actual result. In other words, the legality is assessed under the circumstances as perceived at the moment of launching the attack, rather than based on its outcome. In the case at hand, if the target was legitimate and the IDF soldiers had no knowledge on the presence of children (or other civilians who were not taking direct part in the hostilities), the scenario would have been completely different than if the IDF soldiers were aware of the presence of protected persons in the vicinity of the targeted area. (In the latter case, relevant precautions to avoid harming the children would have been necessary.) In the current case, the IDF had to examine why the children weren’t identified as such.
As tragic as the outcome was – and the death of children is always an undesired outcome – if the IDF forces indeed operated in accordance with the relevant rules, the death of the four children would not constitute a violation of international law.
Intentional fire at a medical clinic – On July 22nd, 2014, IDF soldiers fired tank shells towards a Palestinian medical clinic from which deadly fire was launched the day before (the attack on the 21st caused the death of an IDF soldier). The fire was allegedly conducted as revenge by the soldier’s comrades. The MAG ordered the opening of a criminal investigation into the incident.
The laws of armed conflict do not categorically prohibit an attack against a medical facility if the facility is being used for military purposes. However, medical facilities are considered to have enhanced protection that includes mandatory advanced warning of an impending attack. Whether or not such warning is issued, an attack on a medical facility must be conducted in a manner that takes all relevant precautions to prevent or minimize any collateral damage and must maintain the principle of proportionality (i.e. prohibition on conducting an operation expected to cause excessive collateral damage in relation to the anticipated military advantage from the operation).
Conducting an attack without any advance warning – on July 29th, 2014, eight individuals were killed as the result of an IDF aerial attack on the house of the Al Najjar family. The MAG report concluded that the attack was conducted against high ranked Hamas objectives and operatives and the expected collateral damage wasn’t excessive. According to the report, although no advance warning was issued, other precautionary measures had been undertaken in order to minimize the potential for civilian harm, as required by the laws of armed conflict.
In contrast to medical facilities, which must receive advance warning prior to an attack, there is no absolute obligation to provide advance warning prior to all attacks. The laws of armed conflict requires that precautionary measures aimed at preventing or minimizing potential collateral damage be taken, one of which is the issuing of an effective advance warning. Providing such a warning is mandatory as long as the circumstances at the time of the attack do not prevent it. Circumstances that would exclude the need for advance warning include a situation of surprise attack and immediate responsive fire. Therefore, while the decision not to provide advance warning in the case in question must be examined, it is not necessarily a violation.
The laws of armed conflict provide the military with sufficient tools to fight in an armed conflict against an adversary state or against an armed group in a symmetrical or asymmetrical conflict. When the report of the UN Commission of Inquiry is published, more questions will arise. I will do my best to explain the legal issues that come up in the report in these pages.
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