For 51 days in July and August 2014, Israel conducted a military operation in Gaza known as Protective Edge. It was the third major Gaza operation by the Israeli armed forces in seven years, and by far the most lethal and destructive. Some 2,205 Palestinians, including 722 militants and over 500 children, and 70 Israelis (64 of whom were soldiers) were killed. Thousands of Palestinians were wounded; over 18,000 of their homes were destroyed; some 470,000 were displaced; and large areas of Gaza were essentially razed.
In the aftermath of Protective Edge, a commission appointed by the UN Human Rights Council examined the available facts (Israel refused to cooperate) and found in many cases that war crimes may have been committed. Several NGOs have documented what they suggest were war crimes; and the chief prosecutor of the International Criminal Court (ICC) has opened a preliminary inquiry into the facts that might support such charges and warrant a formal investigation. The advocate general of the Israeli military has opened a number of investigations as well, including some against unit commanders, and has brought charges against individuals for looting and other offenses. Before initiating proceedings against any Israeli relating to Protective Edge, the ICC chief prosecutor will have to address the question of whether she may assert jurisdiction over the alleged violations: If Israel demonstrates an effective system of investigating, charging and punishing the relevant war crimes, the case would not be “admissible” under the Rome Statute that established the ICC in 2002.
But the possible crimes most important to investigate, from both legal and moral perspectives, do not involve decisions by gunship pilots or squad leaders to attack particular targets. They involve decisions by the political and military leadership of Israel, setting the strategic goals of the conflict and choosing the means and methods by which those goals would be sought. If, as available evidence suggests, those political and strategic choices, based on long-standing doctrine and declared policy, authorized and validated grave violations of the law, responsibility for the resulting violations should start with the leaders. Crimes at that level have not been, and are unlikely to be, effectively investigated and charged by the Israeli army or any other Israeli authority. If they are not, the ICC should assert jurisdiction.
Two of the core principles of international humanitarian law (or the law of war) are those of distinction and proportionality. The rule of distinction requires that, to the extent feasible, commanders and soldiers attack only combatants, and protect non-combatants and those who are hors de combat. The rule of proportionality prohibits attacks expected to cause loss of life or injury to civilians or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated.
These rules have been the subject of international treaties since before World War I, and have long been customary international law, binding on all belligerents whether or not they have ratified the treaties that restate them. The proportionality rule was restated and clarified in the First Additional Protocol to the Geneva Conventions of 1949, which went into effect in 1977.
Several states (Australia, Belgium, Canada, Great Britain, Germany, Italy, the Netherlands, New Zealand and Spain) filed interpretive documents with their accessions to the First Additional Protocol, setting forth their understanding of the rule. Those statements, to which no objections were filed by any other state, defined “military advantage” for the purposes of the rule as any advantage “anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.” The Rome Statute authorizing the ICC adopted this interpretation by referring to the “overall” anticipated military advantage. The overall military advantage of an operation is something that can only be judged by those setting policy. Using this approach somewhat broadens the scope of military advantages that may be taken into account, but it also introduces issues with regard to the propriety of the objectives set at a political and strategic level.
A leading Israeli expert agrees with this general approach. Pnina Sharvit Baruch, a retired colonel who is now a senior researcher at the Institute for Security Studies (INSS) in Tel Aviv, served as chief of the international law division of the advocate general’s office and advised the Israeli military on law of war issues during Operation Cast Lead, the 2008-2009 bombardment of and incursion into Gaza. In a briefing for visiting Americans in September 2014, she said that the proportionality rule requires balancing the risk of civilian death and destruction against the military advantage of the overall operation. She explained that the overall objective in Protective Edge was to stop Hamas militants from firing rockets at Israel by destroying their will, making them see that the price they would pay would exceed the value of protecting their ability to carry out operations against Israel. If that formulation is read as limited to targeting armed combatants and the objects used in belligerent attacks, it does not violate international humanitarian law principles.
Israeli leaders, however, have framed the overall objectives of Protective Edge and other Gaza incursions in much broader and more sinister terms. Protective Edge, like any military engagement, had a political context. Its goals were as much political as military, and were based in part on assumptions about who and what the “enemy” was. There is strong evidence that the assumption by political leaders and major commanders was that all Gazans (or even, all Palestinians) were enemies, and that the political and strategic goal was to teach Gazans that terrorist action against Israel would result in many deaths and injuries and the destruction of Gazan infrastructure, requiring massive reconstruction. By making that assumption, choosing those strategic goals, and authorizing use of overwhelming and indiscriminate weapons systems, Israeli leaders made war crimes nearly inevitable. Further, those statements were not new policy, but reflected military doctrine and political assumptions developed over many years. Commanders carried out the political guidance, and their own military doctrines, by deliberately choosing disproportionate and overwhelming force in situations where the law called for careful distinction and protection of civilians.
Israel’s political leadership gave stark guidance to the commanders and troops. Defense Minister Moshe Ya’alon said in December 2013 that an operation in Gaza “would have to deal a harsh blow to Gaza and to the organizations operating there, in a way that would damage their capabilities and exact a heavy toll.” [1] During the earlier 2012 Gaza bombardment, Deputy Prime Minister Eli Yishai said, “We must blow Gaza back to the Middle Ages, destroying all the infrastructure including roads and water.” Moshe Feiglin, the deputy speaker of the Knesset and head of the Jewish Leadership faction of the Likud Party, laid out a seven-step plan for Gaza that included giving a single ultimatum “to the enemy population,” defining any who did not move from Gaza to Sinai as the enemy, and destroying all infrastructure. After eliminating all armed enemies and treating generously those who wished to leave, he went on to say, Gaza would be populated by Jews. [2]
Knesset Member Ayelet Shaked, who currently serves as justice minister and has thereby been entrusted with overseeing application of the rule of law, made what amounted to an explicit call for war crimes on Facebook shortly before Protective Edge. She said, in part, “The Palestinian people has declared war on us, and we must respond with war…. Who is the enemy? The Palestinian people…in wars the enemy is usually an entire people, including its elderly and its women, its cities and its villages, its property and its infrastructure.” Women who gave birth to “martyrs” should follow their sons (i.e., into their graves). “Otherwise, more little snakes will be raised there.”
Israeli military doctrine and practice has for years similarly equated physical location or ethnic identity with status as an enemy combatant. Maj. Gen. Gadi Eizenkot commanded Northern Command in 2006 during Israel’s incursion into Lebanon. When the Israeli army received fire from the southern Beirut suburbs known as the dahiya, the response of troops under Eizenkot’s command was to devastate the entire dahiya area from the air with 2,000-pound bombs and similarly massive and indiscriminate ordnance. In 2008, Eizenkot made clear that the strikes upon the dahiya reflected explicit Israeli military doctrine: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on…. We will apply disproportionate force on it and will cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.… This is not a recommendation. This is a plan. And it has been approved.” [3] Maj. Gen. Eizenkot was deputy chief of staff at the time of Protective Edge, and has since been promoted to chief of staff of the Israel Defense Forces (IDF).
Gabi Siboni, director of the Military and Strategic Affairs Program at INSS and editor of the journal Military and Strategic Affairs, made this “Dahiya doctrine” a more general statement of the Israeli military approach in October 2008: “With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes…. This approach is applicable to the Gaza Strip as well.… The IDF should not be expected to stop the rocket and missile fire against the Israeli home front through attacks on the launchers themselves, but by means of imposing a ceasefire on the enemy.” [4]
In other words, rather than targeting the specific combatants and weapons acting against them, the Israeli military would design its operations to use disproportionate (and less discriminate) force in such a way as to punish, destroy infrastructure and require lengthy, costly reconstruction. That is certainly what was done in Gaza in 2014.
When an Israeli soldier is believed to have been captured, the commander can invoke what is called the “Hannibal directive,” which calls for overwhelming force to be used to destroy the place where the soldier may be held, and the forces that may be holding the soldier, without regard to the likelihood of killing the imperiled soldier. Such assaults are intended to be “no holds barred” affairs, and are carried out without much regard for the civilians present or their property.
Col. Sharvit Baruch recognizes at least some of the dangers that such policy statements and military doctrines create. She has written that “senior IDF commanders and the political echelon—including ministers and senior officials—must avoid making irresponsible statements that damage the nation’s legitimacy. Statements, for example, by politicians that imply that civilians may be targeted intentionally, even when uttered to pander to Israeli public opinion, are liable to erode the nation’s legitimacy and ‘prove’ that Israel has nefarious intentions.” She urges that all Israeli military personnel, from senior commanders to the lowest ranks, be drilled in the laws of war, and that commanders continually reinforce the requirement that the laws be followed.
Unfortunately, international humanitarian law is not taught to Israeli soldiers. The military’s guidance document on ethics, the “Spirit of the IDF,” exhorts troops to generally high military standards and declares deference to life and human dignity. As a veteran told me, however, there is no training in the international standards now universally applicable as customary law. There is no drilling on the rules of distinction or proportionality. Further, the authors of the original “Spirit of the IDF” formulas have in the past several years urged new formulations that would explicitly prioritize protection of Israeli personnel over non-combatants who are under the effective control of the Israeli military. That priority had been implicit in the earlier document, and in the practices of the military; it would now be stated in an ordered set of priorities.
Col. Sharvit Baruch casts her advice in terms of avoiding damage to Israel’s legitimacy or credibility. What she does not acknowledge explicitly is that leadership and training can either prevent war crimes, or can make them much more likely by fostering attitudes hostile or indifferent to the difficult, and risky, duties of distinguishing combatants from others, and balancing military benefits against likely civilian deaths and destruction.
The existing pattern of leadership, where explicit and often bloodthirsty calls for disproportionate force are prevalent and education in the law of war is absent, has led to thousands of dead civilians and massive destruction of civilian homes, businesses and infrastructure. Such outcomes cry out for investigation of possible war crimes. One example is the assault on the district known as Shuja‘iyya in eastern Gaza City, on July 19 and 20, 2014.
Shuja‘iyya is one of the most densely populated parts of Gaza, itself one of the most crowded areas in the world, with 92,000 people crammed into six square kilometers. (This density is over three times that of Tel Aviv.) The Israeli military claimed that it was a “terrorist fortress,” underlain by a network of tunnels and dotted with more than two dozen Hamas militant homes containing weapons caches; some ten tunnels were ultimately found in the area, and the army also claimed that over 140 rockets were fired at Israeli units from the area.
The Israeli air force and army issued warnings to the residents of impending assaults, by use of leaflets, telephone calls, loudspeakers and radio warnings. After warning leaflets on July 16, residents initially stayed, but about half of them left thereafter when the bombardments scaled up. The problem for residents was that there was no safe haven to which they could move. Some 44 percent of Gaza had either been declared no-go areas by the Israeli army or was also subject to evacuation warnings. Gaza City, even schools or clinics therein, did not promise safety. Some residents, including the elderly and infirm, could not move freely.
The law of war is clear: Warnings should be given when feasible, but non-combatants who cannot or do not evacuate are not thereby stripped of their protected status. This last point is lost on many Israeli commanders, one of whom wrote in the Ground Forces Journal, “When I teach people to fight in a war, the civilian population is not supposed to be there, and if it is, I persuade it to keep away. In peacetime security, soldiers stand facing a civilian population, but in wartime, there is no civilian population, just an enemy.” [5] Asa Kasher, one of the two co-authors of the “Spirit of the IDF,” has written that when civilians remain after warnings, it is fair to presume that they stayed to help the terrorists, and it would be improper at that point to send soldiers in to sort out combatants from non-combatants. Kasher is attempting to rewrite the law of war.
On July 19 and 20, Hamas militants killed 13 Israeli soldiers in Shuja‘iyya, including seven in a vehicle destroyed by an improvised explosive device. It was feared that one or more soldiers had been captured. The response of the Golani, Givati and paratrooper brigades, and supporting artillery and aviation units, was ferocious. According to American military sources, eleven artillery battalions brought 258 or more artillery pieces to bear, firing over 7,000 shells into this one area between July 19 and 20. The Israeli military told Haaretz that 600 artillery rounds were fired into Shuja‘iyya in less than one hour on July 20 in an attempt to extract the troops under fire there. Over one hundred 1,000-pound bombs were also dropped on the area. American generals who reviewed briefings on the Shuja‘iyya operation said that the massed artillery firing on that small area was equivalent to what the US Army would use to support an army corps of several divisions (something over 40,000 troops), and was “massive,” “deadly” and “absolutely disproportionate.”
Artillery is a “statistical” weapons system, meaning that it is not that accurate. Most of Israel’s artillery is American, either 155 mm howitzers or heavier 175 mm guns. The 155 mm howitzers have a lethal radius from point of impact of 50-150 meters, a casualty radius of 100-300 meters, and an error radius of 50 meters; these numbers mean that persons can be killed 200 meters from the aiming point, and injured 350 meters from that point. Israeli army rules currently allow targeting of 155 mm guns on objects or persons 100 meters from civilian homes—but require that aiming points be 250 meters from any Israeli forces. (The Israeli military reported to Haaretz that the safety distances were considerably reduced in Shuja‘iyya.) The destructive capacities of 175 mm guns and 1,000- and 2,000-pound bombs are much greater, and the ability to discriminate in targeting in densely populated areas concomitantly less. The UN commission repeatedly expressed doubt that there was any way to use these weapons in densely populated urban areas consistent with the laws of war.
In the event, the targeting process does not seem to have involved careful selection of true military targets. Soldiers who served in the engagement told Breaking the Silence (an organization of military veterans formed to provide information to the Israeli public about the realities of the occupation) that a senior officer “just marked off houses on an aerial photo of Shuja‘iyya to be taken down,” without a determination that Hamas militants were present or fire was being taken from them. This report is consistent with the “Dahiya doctrine”—overwhelming and disproportionate force against an area from which fire is taken—and also the “Hannibal directive”—overwhelming and indiscriminate force to prevent a soldier from being taken captive alive. It is inconsistent with core international humanitarian law principles.
The result, according to UNOSAT, the UN’s satellite imaging and mapping unit, was that Shuja‘iyya became a “razed area,” where 670 buildings were totally destroyed, 608 were severely damaged and 576 were moderately damaged. Somewhat surprisingly, the best estimate is that “only” 55 civilians were killed in Shuja‘iyya on July 19-20, but 19 of those were children and 14 were women.
Shuja‘iyya was a horrific example of what could happen given the assumptions, political guidance and military doctrine that framed the conflict in Gaza. But it was not by any means the only one. At Rafah on August 1, the “Hannibal directive” was invoked when an Israeli army lieutenant was missing. The army and air force hit Rafah with 1,000 artillery rounds and about 40 bombs in three hours, and tanks and bulldozers razed dozens of homes. One hundred Palestinians were killed in Rafah that day, of whom 75 were civilians (24 children and 18 women among them). The UN commission found that the operation was conducted “in total disregard for its impact on the civilian population.” A further example: Just before the ceasefire that suspended Israeli military operations, F-16 attacks used 2,000-pound bombs to destroy multi-story buildings in the densest parts of Gaza. A 2,000-pound bomb causes a crater 15 meters wide and 11 meters deep, propels lethal fragments 365 meters, and can bring down a high-rise.
I asked Col. Sharvit Baruch about Shuja‘iyya, given the fact that investigations had been opened only against low-ranking Israeli military personnel. If the facts of Shuja‘iyya were as reported, should investigations not be opened as to possible violations by senior commanders and policymakers? She said she hoped investigations would go wherever necessary, including the actions of senior officials, in order to determine whether the problem was the orders given, or the implementation.
That was a good answer one month after Protective Edge ended. A year has passed, however, and not surprisingly, no investigation targeting the issues described in this article has been initiated by Israeli authorities. It seems fanciful to suppose that prosecutions of high officials for war crimes would be brought by the Israeli advocate general or any civilian Israeli authority in any event. Any investigations and resulting prosecutions will have to be undertaken by the ICC. That also may turn out to be politically difficult if not impossible, since the United States and Israel would try hard to prevent it.
International humanitarian law, however, is largely the product of the modern world’s revulsion at the criminal and immoral excesses of the wars of the past 150 years. Senior military and political leaders were prosecuted after World War II and after the more recent Balkan and African wars. Israel is said to be an exceptional state. But when its leaders act in violation of settled legal and moral norms, no exception should be made, no pass given.
Endnotes
[1] Times of Israel, December 31, 2013.
[2] Arutz Sheva, July 15, 2014.
[3] Ynet, October 31, 2008.
[4] Gabi Siboni, “Disproportionate Force: Israel’s Concept of Response in Light of the Second Lebanon War,” INSS Insight 74, October 2, 2008.
[5] Quoted in Report of Independent Commission of Inquiry Pursuant to UN Human Rights Council Resolution S-21/1, p. 69.
