As the Israel Defense Forces enter Gaza to wage war against Hamas, it’s important to remember the extent to which Israel works tirelessly to meet and vastly exceed the requirements of international law, including the law of armed conflict.
The four basic principles of the law of war: distinction, proportionality, military necessity and limitation.
In 2014, The Heritage Foundation hosted Col. Eli Bar-On, then the deputy military advocate general (the No. 2 lawyer in the IDF), to speak about how Israel complies with the rules required by the law of armed conflict.
Bar-On spent 20 years serving in the IDF and was the chief prosecutor and judge in both the West Bank and Gaza Strip. He used video clips from actual armed conflicts to demonstrate to the world how Israel complies with the law of armed conflict, and how Hamas and Hezbollah do not.
Bar-On discussed the stages of Israel’s proactive defense measures and how they strive to defend themselves within the bounds of international law, while their enemies, such as Hamas and Hezbollah, attack Israeli civilians and use their own people to achieve their military objectives.
Between 2002 and 2012, Israel was involved in four military campaigns. These were Operation Defensive Shield in the West Bank against Palestinian terrorist groups, including Hamas; the Second Lebanon War against Hezbollah; and Operations Cast Lead and Pillar of Defense, both of which took place against Hamas in Gaza.
Distinction
Bar-On said that modern conflicts have extended to new fronts, including the purposeful targeting of civilian populations by terrorist organizations.
There is “no longer a division between the battlefield and the home front, because the home front, at least in Israel, became the battlefield. Urban conflict has become the norm.”
Hamas does not abide by the principle of distinction. It has no respect for that rule of armed conflict as it attacks civilian targets.
He said that after the Second Lebanon War, there was “no doubt that Hezbollah was totally and absolutely beaten militarily.” Yet for Hezbollah, that conflict was considered a victory, because “for more than a month, they withstood the might of the IDF, and for them, the damage to the infrastructure, and the loss of civilian lives on their side, is (sic) also part of the victory.”
The nature of non-state actors fighting against the IDF creates challenging issues for Israel.
Bar-On talked about the two-pronged approach under the principle of distinction. On the one hand, the military forces of one side can only target combatants and military objectives, and must always distinguish them from civilians and civilian objects.
Turning to the second prong, military leaders cannot endanger or use their own civilian population for military purposes. That means the presence of movement “of civilian populations cannot be used to render areas immune from military operations.” Nor can they use civilians to shield otherwise legitimate military targets.
But those rules are difficult to follow with precision when fighting terrorist groups, such as Hamas or Hezbollah.
For example, during Operation Cast Lead, Hamas illegally used the Shifa Hospital in Gaza, built by Israel, as a command center for some of its most senior members.
While the Hamas operatives would have been a legitimate military target, they were inside of a hospital. Should Israel have attacked it, the international outrage would have been resounding. As a result, Israel did not carry out a strike against it.
On Nov. 15, 2012, during Operation Pillar of Defense, a Hamas rocket was launched from an urban civilian area in Gaza and hit a building in Kiryat Malakhi, Israel. Three Israeli civilians were killed, but it was impossible for the IDF to safely retaliate, given the extent to which Hamas had concealed itself within Gaza’s civilian population.
Proportionality
The proportionality rule requires that when an attack is expected to cause collateral damage that is excessive when compared with the military advantage to be gained, the attack must not be carried out.
That’s the most difficult rule to carry out in the context of warfare against Hamas and Hezbollah.
Bar-On said, “Proportionality is not a comparison about the body counts on each side.”
Israel actively defends its citizens, “investing in defensive infrastructure, such as the Iron Dome, defense missile systems, and forcing its civilians to go into shelters while under attack.”
At the same time, “Hamas intentionally and systematically endangers its civilians by deliberately placing them in the line of fire so as to deter Israel from attacking them and exploits civilian harm in the international arena in case we do attack.”
IDF soldiers are trained on the law of armed conflict and the Geneva Conventions. There are discussions, training, and practice sessions that take place before conflicts arise, before any action is taken regarding an existing conflict, during the operation, and after the operation is completed.
Once a conflict has arisen, the IDF works with its legal department to devise a just plan for how to deal with it. That preparation will include measures such as conducting an evaluation of the target to ensure that any plan of action is designed to achieve a legitimate military objective while minimizing civilian casualties.
After an operation has begun, the IDF continues to honor its commitment to international law. Advisers are available on the ground to provide legal advice to soldiers in the field. A “legal war room” runs 24 hours a day to provide the IDF with help as they are forced to navigate legal gray areas in Hamas-controlled regions.
At that point, the IDF will employ multiple strategies to reduce the risk of harm to civilians on both sides. These strategies are often manipulated and undermined by the terrorists the IDF is fighting.
As Bar-On emphasized, the proportionality principle uses the predicted number of casualties to judge the justification in advance of a particular attack, not the actual number after the fact.
The IDF utilizes a number of methods to minimize the predicted number of casualties. One is the use of coordination maps to identify sensitive locations, such as schools and hospitals, more easily. Another is to consider the best angle from which to strike a building, so the shards explode away from surrounding civilian buildings.
By far the most extensive element of the IDF’s prestrike effort is its early-warning system. International law requires that civilian populations in areas that will be bombed must be given fair warning. As Bar-On puts it, Israel’s advance-warning system “goes far beyond that.”
For example, in Operations Cast Lead and Pillar of Defense, Israel released more than 2 million leaflets in the Gaza Strip in advance of an attack. The pamphlets were written in Arabic and included information about routes to safe areas. The IDF goes so far as to place phone calls to homes in areas they are about to target to give a final warning to the occupants of those homes that they should evacuate.
In contrast, Hamas has traditionally urged civilians to stand their ground despite these warnings. Through such behavior, combined with its practice of using civilian areas, such as the Shifa Hospital, to house military equipment and operations, the terrorist group warps the proportionality principle.
Finally, once a conflict has ended, the IDF will conduct investigations into all allegations of misconduct. However, those investigations are riddled with difficulties.
There are two primary issues that IDF investigators encounter. The first is that the alleged crime scene is often inaccessible due to its location or destruction. The other is that Gazan witnesses are often reticent to testify against Hamas for fear of retaliation.
In light of what Bar-On explained in his presentation, it’s clear that Israel strives to obey international law, while Hamas ignores it.
Bar-on ended his talk with a quote: “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.”
Coming from retired Israeli Supreme Court Justice Ahron Barak, it clearly summarizes how Israel continues to fight as fairly as it can despite the immorality of its enemies. As Israel launches its ground invasion of the Gaza Strip, and as casualties are—tragically but unavoidably—incurred, we must keep in mind that Israel is dedicated to following the rule of law, and Hamas is not.
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