JURIST Guest Columnist Robbie Sabel of the Hebrew University Faculty of Law in Jerusalem, Israel, says that despite its partisan nature, a report issued by Israel's government on the legal and factual underpinnings of the December-January Gaza offensive is a development that should be welcomed by the legal community….

The Israeli government has lately posted on its website a lengthy and detailed examination of the legal and factual background of its military operations in Gaza during December and January of this past year. The Report is avowedly partisan and is no doubt intended as a response to calls for an international enquiry made by various international NGOs and to a complaint submitted to the ICC by the Palestinian Authority. However the very fact that a government involved in a controversial military operation consequently publishes in real time a detailed legal and factual brief is a development to be welcomed by the legal world. It could transform the public debate from an exchange of sound bite-like recriminations into a discourse as to the very real legal dilemmas involved in a regular army fighting irregular fighters of a non-state actor.

Self Defence Against Non-State Actors?

Among the issues studied is the cardinal issue of whether Israel had the right in the first place, to use armed force against the Hamas in Gaza. The Israeli report lists the armed attacks by Hamas against Israel and, not surprisingly, concludes that Israel was acting in accordance with its inherent right of self defence. The report bases its conclusion on the wording of Security Council Resolution 1368 which recognized “the inherent right of individual or collective self-defence,” in connection with “threats to international peace and security caused by terrorist acts” and Security Council Resolution 1373 which noted that “international terrorism constitute[s] a threat to international peace and security” while “reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368”. The report does not ignore the ICJ advisory opinion on the Separation Wall which concluded that a right of self defence applies only to attacks by a State . The report quotes various authorities (see Report footnote 48) including dissenting judges Buergenthal and Higgins for the conclusion that the Court had erred in its opinion on this issue.

The Applicability of the Laws of Armed Conflict?

The report questions whether the laws of armed conflict applied to the conflict in Gaza and if so whether it was an internal or international conflict. Here the Report applies a pragmatic approach quoting the decision of the International Criminal Tribunal for the former Yugoslavia in the Tadić case, that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” The Report concludes that "The conflict between Israel and Hamas in Gaza meets this definition". (Report, paragraph 28). The report added that "Israel as a matter of policy applies to its military operations in Gaza the rules of armed conflict governing both international and non-international armed conflicts. At the end of the day, classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts". (Report, paragraph 30). This pragmatic approach was the approach adopted by the Israel Supreme Court which ruled in a series of cases that the Israel armed forces were bound to comply with the laws of war whenever they were engaged in armed conflict, regardless of the classification of the conflict and without regard to the behavior of the other side.

Civilian Casualties

The Report admits that there were heavy casualties among the civilian population of Gaza but adds a caveat that "The fact of civilian casualties in an armed conflict, even in significant numbers, does not in and of itself establish any violation of international law. In fact, the doctrine of proportionality operates in scenarios in which incidental injury and collateral damage are the foreseeable, albeit undesired, result of attack on a legitimate target”. (Report, paragraph 90) The Report criticizes NGOs and UN bodies for concluding that there were violations of the laws of war based on the uncontested fact that there were civilian casualties. The Report points out that "non-governmental organizations and rapporteurs and committees acting under mandates from international organizations too often jump from reporting tragic incidents involving the death or injury of civilians during armed combat, to the assertion of sweeping conclusions within a matter of hours, days or weeks, that the reported casualties ipso facto demonstrate violations of international law, or even “war crimes". (Report, paragraph 34) The Report points out that in the law of armed conflict "any assessment of the legality of particular conduct cannot focus only on the consequences (whether civilians were harmed). Instead, the proper focus is on whether the persons carrying out the attack, based on what they knew and the conditions they faced at the time, complied with the applicable rules of international law". (Report, paragraph 93) The report brings legal authority that "the presence of civilians at a site (whether voluntarily or involuntarily) does not by itself forbid an attack on an otherwise legitimate military target." (Report, paragraph 99). "Military operations that cause unintended and unwanted damage to civilians do not constitute violations of the Law of Armed Conflict, much less a war crime." (Report, paragraph 114). In other words, there is no indication of a “war crime” simply because others conclude after the conflict that a different decision — often, a snap decision taken on the battlefield — could have led to fewer civilian casualties. To the contrary, if the commander in the field did not intend and did not know that the attack would cause clearly excessive levels of civil harm, there is no legal basis for labeling it as war crime". (Report, paragraph 129).

What if the Enemy Purposely places Civilians in Danger?

The Report states that the Hamas policy of placing "weapons systems in or near apartment buildings, schools, mosques or medical facilities, or to encourage civilians to gather in areas that are likely military targets — violates the Law of Armed Conflict, because such tactics inevitably increase civilian casualties beyond what otherwise might occur in connection with an attack on a legitimate military target." (Report, paragraph 139). Such behavior is certainly a violation of the laws of war but the Report does not claim that such Hamas behavior negates the obligation of the other side, in this case Israel, to
ensure proportionality. The Report leaves open the thorny question of whether such behavior by Hamas should affect if at all the obligations of the other side as regards targeting such military objectives.

Is Hamas Bound by the Laws of War?

The Report refers to Hamas violations of the laws of war and to war crimes that can be attributed to the individual members of the Organization. The Report refrains from examining whether Hamas as an organization is bound by international law including the laws of armed conflict. The question could be asked for instance whether Al Qaeda is subject to international law and I believe the answer here again to be that individual members are guilty of war crimes and there is no utility in examining whether such non-state actors who act completely outside international legal frameworks are subject to international law. The analogy could perhaps be made to a non-incorporated criminal gang in national legal systems. It is the individuals who violate the law.

The Complementary Principle in Applying Universal Jurisdiction

The Report, for obvious reasons, stresses that third party States should intervene by prosecuting alleged violations of the laws of war only where the State involved either lacks an independent legal system of its own or lacks the will to undertake a bona fide investigation. The report quotes at length from the decision of the Spanish court of appeal that refused to deal with a complaint against an earlier Israeli bombing in Gaza as "Israel’s system of appellate review was independent and impartial". (Report, paragraph 306).

Conclusion

A legal report on its military operations issued for international consumption by any government is bound to be partisan. Nevertheless the issuing of such a detailed and well researched report is a valuable precedent and it is to be hoped that we will see in the future similar reports by other governments.

Robbie Sabel is a visiting Professor of International Law at the Hebrew University in Jerusalem
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