V. THE USE OF FORCE – THE LEGAL FRAMEWORK

 
A. The Legal Framework
89 Even where resort to force is justified, as it was for Israel in responding to heightened attacks by Hamas in the course of its long-standing armed conflict with Israel, customary law limits the manner in which a State can exercise force (jus in bello).  The two critical aspects of this limitation — the principle of distinction and the principle of proportionality — are both designed to protect civilians not taking direct part in the hostilities and civilian objects, while taking into account the military necessities and the exigencies of the situation. 90 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.”(63)  As Kenneth Watkin, the Canadian Judge Advocate General, has explained, “although civilians are not to be directly made the object of an attack, humanitarian law accepts that they may be killed or civilian property may be damaged as a result of an attack on a military objective.”(64) 91 It is for this very reason that the Office of the Prosecutor, at the International Criminal Tribunal for the former Yugoslavia, rejected any suggestion, in its evaluation of the NATO bombing campaign in Yugoslavia, that the mere fact of civilian harm was indicative of wrongdoing.  As the Committee Established to Review the 1999 NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated in 2000 to the Prosecutor of the ICTY, “[m]uch of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed.”  Yet as the Prosecutor’s Committee noted, “[c]ollateral casualties to civilians and collateral damage to civilian objects can occur for a variety of reasons.”(65)  For example, they may be harmed due to their proximity to a military target, or by operational mistakes.  At times civilians may suffer harm because they are conscripted by the adversary to serve as “human shields” against an attack upon a military target.  92 In those and similar situations, one cannot jump from the unfortunate occurrence of civilian harm to the unfounded conclusion that the attacks were illegal.  The critical but often omitted link in determining the legality of an attack — even an attack that results in death or injury to civilians — is whether the attacking forces sought to observe the rules of the Law of Armed Conflict, and in particular the principles of distinction and proportionality.  This analysis depends on the particular facts of each incident.  When individual attacks are legitimate, “the mere cumulation” of such instances, all of which are deemed to have been lawful, “cannot ipso facto be said to amount to a crime.”(66) 93 For this reason, and as discussed in detail below, 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.  The IDF made extensive efforts to comply, not only in its training and rules of engagement but also as implemented regularly in the field.  Hamas made no attempt to comply with these principles, but has exploited these rules in an attempt to gain military advantage from the constraints the rules imposed on IDF activities.  

(1) The Principle of Distinction
94

The first core principle of the Law of Armed Conflict, as reflected both in treaty law and in customary international law, is that “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” (67)   The principle imposes obligations on both parties to an armed conflict.

 
(a) The Obligation Not to Target the Adversary’s Civilians
95 It is unlawful to deliberately make civilians the object of attack.  As the customary international law principle is reflected in Additional Protocol I, “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.  Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”(68)  Rather, “[a]ttacks shall be limited strictly to military objectives.”(69)  96 It is important to make clear what this principle does not require.  First, by definition, the principle of distinction does not forbid the targeting of combatants, nor the targeting of civilians who take a direct part in the hostilities.(70) 97 Second, this principle addresses only deliberate targeting of civilians, not incidental harm to civilians in the course of striking at legitimate military objectives.  This understanding of customary international law was made explicit by numerous States in their ratifications of Additional Protocol I,(71) and many other States have officially adopted this interpretation.(72) 98 Direct participation in hostilities has been interpreted by Israel’s High Court of Justice as involving all persons that perform the function of combatants, including “a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it,” as well as “a person who collected intelligence on the army, whether on issues regarding the hostilities . . . or beyond those issues . . . ; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may.”(73)  99 Fourth, more broadly, the presence of civilians at a site (whether voluntarily or involuntarily) does not by itself forbid an attack on an otherwise legitimate military target.  As explained in Oppenheim’s International Law, civilians “do not enjoy absolute immunity.  Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard [the military objects] without indirectly causing injury to the non-combatants.”(74)  The military manuals of numerous countries echo this point.(75)  So do leading commentators, such as W. Hays Park, who has written that:  

“Within both the Just War Tradition and the law of war, it has always been permissible to attack combatants even though some noncombatants may be injured or killed; so long as injury to noncombatants is ancillary (indirect and unintentional) to the attack of an otherwise lawful target, the principle of noncombatant immunity is met.”(76)

100 The expected presence of civilians, though, does impact the analysis of the proportionality of an attack, discussed in Section V.A(2) below. 101 The determination of what is a lawful “military objective” turns on an assessment of “military advantage.”  Additional Protocol I reflects customary international law in defining “military objectives” as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.”(77)  The tactics and strategy of the opposing force can transform sites that may once have been purely civilian into legitimate military objectives.  As the ICRC Commentary to Additional Protocol I explains,  

“In combat areas it often happens that purely civilian buildings or installations are occupied or used by the armed forces and such objectives may be attacked, provided that this does not result in excessive losses among the civilian population.  For example, it is clear that if fighting between armed forces takes place in a town which is defended house by house, these buildings — for which Article 52 (General protection of civilian objects), paragraph 3, lays down a presumption regarding their civilian use — will inevitably become military objectives because they offer a definite contribution to the military action.  However, this is still subject to the prohibition of an attack causing excessive civilian losses.”(78)

102 Judging military advantage with respect to a target evaluated during combat is not an exercise in hindsight.  The perspective is that of the commander in the field at the time of a targeting decision, with the information then available.(79) 103 This point, too, is reflected in military manuals of many States.  Thus, for example, the Military Manual of the Netherlands explains that:  

“the definition of ‘military objectives’ implies that it depends on the circumstances of the moment whether an object is a military objective.  The definition leaves the necessary freedom of judgement to the commander on the spot.”(80)

104 The military manuals of other States likewise afford a margin of discretion to the commander in the field.(81)  105 The military manuals of many States also confirm that the relevant “military advantage” defining a “military objective” relates to “the military campaign or operation of which the attack is a part considered as a whole and not only from isolated or particular parts of that campaign or operation.”(82)  Further, the “security of the attacking forces” is a proper consideration in assessing military advantage.(83) 106 The manuals recognise as well that objects “normally dedicated to civilian purposes, but which are being used for military purposes” (such as houses, schools or churches) lose their protection under the applicable law, and may properly become lawful “military objectives.”(84)  This reality becomes particularly important when a party, in violation of its own obligations under the Law of Armed Conflict (see Section V.A(1)(b) below), deliberately places combatants and weaponry at or near civilian sites in order to shield them from attack, and thus exposes civilians to significant harm.  As noted in the 2007 edition of the Operational Law Handbook, issued by the United States Air Force Judge Advocates Corps, “Use refers to how an object is presently being used.”(85)  Thus, as the Handbook notes, “[e]xamples of enemy military objectives which by their use make an effective contribution to the military action” would include “an enemy headquarters located in a school, an enemy supply dump located in a residence, or a hotel which is used as billets for enemy troops.”(86) 107 The loss of absolute protection for a civilian site when it is misused by the adversary as a locus for military operations is broadly recognised in the Law of Armed Conflict.(87)  Thus, for instance, the hidden placement of a significant military asset within a civilian building or even the presence of enemy combatants can make the otherwise civilian site amenable to attack.(88)  This is a harsh reality of urban warfare. 108 Attacks must not be “indiscriminate,” that is, untargeted, launched without consideration as to where harm will likely fall.(89)  As W. Hays Park has explained, “[t]his distinction is not determined by the amount of the devastation or the number of deaths, but by the direction of the action itself, i.e., by what is deliberately intended and directly done.”(90) 109 In keeping with this understanding in customary international law, Additional Protocol I defines indiscriminate attacks as:  

“(a) Those which are not directed at a specific military objective;

(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) Those which employ a method or means or combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”(91)

110 As these provisions indicate, a commander’s intent is critical in reviewing the principle of distinction during armed conflict.  Where it is believed in good faith, on the basis of the best available intelligence, that a civilian building has been misused as a sanctuary for military fighters, military intelligence, or the storage and manufacture of military assets, the commander has a legitimate basis for using force against the site.  This is so even where judgment is based on limited information in a fluid battlefield situation. 111 The definition of military targets thus could include terrorists who move rapidly throughout a neighbourhood, even where they shelter themselves in civilian dwellings.  It does not relieve the commander of the obligation to judge the proportionality of his action.  But it makes clear that a civilian site can be converted to a legitimate target by the conduct of the opposing force in using such places for military purposes, including the escape of armed combatants. 112 Quite apart from the tenets of legitimate targeting are the additional prerequisites of the criminal law.  Mistakes made in armed conflict do not, as such, constitute war crimes.  The centrality of a commander’s intent means that the incidence of civilian casualties does not serve to establish a violation of the principle of distinction.  And reasoning from hindsight is also not sufficient.  It does not reveal what a commander could have known or forecast at the time.  As two leading scholars have recognised, “[t]he prerequisite for a grave breach is intent; the attack must be intentionally directed at the civilian population or individual civilians, and the intent must embrace physical consequences.”(92) 113 The ICTY itself has found that for an attack to qualify as a war crime, it “must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted.”(93) 114 In short, 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. 115

While Hamas deliberately sought to harm civilians by launching rockets and mortars on towns in Southern Israel, and even boasted about directing their attacks at civilian populations,(94) the IDF carefully checked and cross-checked targets — using best available real-time intelligence — to make sure they were being used for combat or terrorist activities, and not instead solely for civilian use.  In the event of reasonable doubt, the IDF refrained from attacking targets until such time as it could confirm their status as legitimate military objectives.  This was consistent with the IDF’s formal rules of engagement for the Gaza Operation, which ordered commanders and soldiers to direct strikes solely against military objectives and combatants,(95) and prohibited intentional strikes on civilians or civilian objects.(96)

(b) The Obligation of Parties to an Armed Conflict Not to Jeopordise Their Own Civilians

  116 The principle of distinction imposes obligations on the conduct of all parties, including those controlling the territory where the hostilities take place. 117 The Fourth Geneva Convention prohibits the use of civilians to shield certain areas from attack and provides that the presence of civilians does not shield an otherwise permissible military target from attack: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”(97)  Additional Protocol I is categorical in barring the use of “human shields”:  

“The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations.  The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”(98)

118 Violation of this obligation, which is a core principle of customary international law binding on both States and non-State actors, constitutes a “war crime.” 119

In this case, as explained in Section V.B below, Hamas violated this core principle of customary international law.  Its operatives admitted, for example, that they frequently carried out rocket fire from schools (such as the Sakhnin school in the area of Abu Halima, and another school in the al-Amal neighbourhood), precisely because they knew that Israeli jets would not fire on the schools.(99)  They describe incidents in which Hamas activists requested children to wheel carts laden with rockets, in case IDF forces noticed them.(100)  In fact, one Hamas legislator boasted on television of encouraging women, children and the elderly to form human shields to protect military sites against Israeli attack.(101)  The Secretary-General of the United Nations confirmed receiving reports of Hamas using children and others as shields to prevent attacks against launch sites and other military targets.(102)

 

 

(2) The Principle of Proportionality
 
(a) The Obligation to Weigh Military Objectives Against Civilian Harm
  120 In addition to the principle of distinction, customary international law bars military attacks that are anticipated to harm civilians excessively in relation to the expected military advantage.  This principle, known as the “principle of proportionality,” is reflected in Additional Protocol I, which prohibits launching attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”(103)  The “elements of crimes” drafted in the Rome Statute of the International Criminal Court(104) implementation process and approved by the Assembly of States Parties to the Rome Statute clarifies two key matters as well — that the actionable offence of causing “excessive incidental death, injury or damage” is established only where these matters were “clearly excessive,” and that excess and proportion is to be judged “in relation to the concrete and direct overall military advantage anticipated.”(105)  While Israel is not a party to either Additional Protocol I or the Rome Statute, it accepts these clarifications as reflective of customary international law. 121 The very notion of not inflicting “excessive” harm recognises that some civilian casualties may be unavoidable when pursuing legitimate military objectives.  Numerous military manuals reflect this grim reality.(106)  General A.P.V. Rogers, former Director of British Army Legal Services, has explained that:  

“Although they are not military objectives, civilians and civilian objects are subject to the general dangers of war in the sense that attacks on military personnel and military objectives may cause incidental damage.  It may not be possible to limit the radius of effect entirely to the objective to be attacked, a weapon may not function properly or be deflected by defensive measures, or a civilian object may be attacked by mistake because of faulty intelligence.  Similarly, civilians working in military objectives, though not themselves legitimate targets, are at risk if those objectives are attacked.  Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack.”(107)

122 By definition, then, evaluation of proportionality (or excessive harm to civilians compared to military advantage) requires balancing two very different sets of values and objectives, in a framework in which all choices will affect human life.  States have duties to protect the lives of their civilians and soldiers by pursuing proper military objectives, but they must balance this against their duty to minimise incidental loss of civilian lives and civilian property during military operations.  That balancing is inherently difficult, and raises significant moral and ethical issues.  Indeed, as the Committee established to review NATO’s bombing campaign in the former Yugoslavia emphasised:  

“The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied.  It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. …  Unfortunately, most applications of the principle of proportionality are not quite so clear cut.  It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values.”(108)

123 It is precisely because this balancing is difficult that international law confirms the need to assess proportionality from the standpoint of a “reasonable military commander,” possessed of such information as was available at the time of the targeting decision and considering the military advantage of the attack as a whole.  Moreover, the balancing may not be second-guessed in hindsight, based on new information that has come to light; it is a forward-looking test based on expectations and information at the time the decision was made.  This perspective is confirmed by the use of the word “anticipated” within the text of the rule itself, as well as in the explanations provided by numerous States in ratifying Additional Protocol I.(109) 124 Inevitably, different soldiers in combat make different choices in balancing competing values and interests.  As the Committee Established to Review NATO Bombings in Yugoslavia explained to the ICTY Prosecutor,  

“It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and injury to noncombatants.  Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases.  It is suggested that the determination of relative values must be that of the ‘reasonable military commander’.”(110)

125 Thus, the core question, in assessing a commander’s decision to attack, will be (a) whether he or she made the determination on the basis of the best information available, given the circumstances, and (b) whether a reasonable commander could have reached a similar conclusion.  As W. Hays Park has explained, “[u]nintentional injury is not a violation of the principle of non-combatant immunity unless, through wilful and wanton neglect, a commander’s actions result in excessive civilian casualties that are tantamount to an intentional attack.”(111) 126 The same criteria for assessing “military advantage” apply in the proportionality context, namely that the “military advantage anticipated” from a particular targeting decision must be considered from the standpoint of the overall objective of the mission.(112)  In addition, it may legitimately include not only the need to neutralise the adversary’s weapons and ammunition and dismantle military or terrorist infrastructure, but also — as a relevant but not overriding consideration — protecting the security of the commander’s own forces.(113)  127 The standard does not penalise commanders for making close calls.  Rather, it is intended to prohibit “[m]anifestly disproportionate collateral damage inflicted in order to achieve operational objectives,” because this results in the action essentially being a “form of indiscriminate warfare.”(114) 128 As with the principle of distinction, a showing of intent is required for there to have been any arguable “war crime” based on excessive civilian harm in comparison with military objectives.  As customary international law is reflected in the specific relevant section of the Rome Statute, for example, it is clear that a war crime requires the “intentional launching” of an attack “in the knowledge that such attack will cause incidental loss of life or injury to civilians … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”(115)  In other words, from this very definition, the existence of a war crime turns not on the reasonableness of the commander’s weighing of military advantage against civilian harm, but on whether he or she knew that the attack would cause clearly disproportionate harm, but proceeded intentionally notwithstanding this knowledge.(116) 129 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 notknow that the attack would cause clearly excessive levels of civil harm, there is no legal basis for labelling it as war crime.  130 In this case, as demonstrated below, the IDF took extensive steps to weigh the risk of civilian harm against the existence of important military objectives, based on the information available at the time of targeting decisions.  Such assessments were a significant part of IDF training and rules of engagement,(117) and they were implemented in the field.  As discussed further in Section V.C(3), for attacks planned in advance, each operation and target was considered on an individual basis (and reviewed by several authorities, including legal officers) in order to ensure that it met the requirements of proportionality.  The same analysis was frequently repeated in the field based on real time data, immediately prior to an attack, to confirm that excessive civilian harm was not anticipated. 131

On numerous occasions, this review led to a decision not to attack legitimate military targets, to avoid the possibility of civilian harm, even though such an attack might not be excessive in relation to the anticipated military advantage.  As just one example of many, as documented by photographs in Section V.B(2), Israeli forces identified a rocket launcher between two school buildings on 18 January 2009, but refrained from attacking because of its proximity to the schools.  The IDF also refrained from attacking Shifa Hospital in Gaza City, despite Hamas’ use of an entire ground floor wing as its headquarters during the Gaza Operation,(118) out of concern for the inevitable harm to civilians also present in the hospital.  On other occasions, attacks were approved using precision guided munitions, but the missiles were diverted moments before impact, because civilians were spotted in the target area.(119)  On still other occasions, as discussed in Section V.C(4), a decision was made to proceed with a strike, but only under certain specified conditions designed to minimise civilian casualties, such as the time of the attack, the type of weapons permitted, or required precautions prior to attack.(120) 

(b) The Obligation of Attacking Forces to Take Feasible Precautions to Minimise Incidental Civilian Harm

  132 In addition to the obligation to refrain from acts that would harm civilians disproportionately in relation to anticipated military advantage, Additional Protocol I requires both parties to a conflict to take “feasible” precautions to minimise incidental loss of civilian life.(121)  From the perspective of the attacker, this means “do[ing] everything feasible to verify that the objectives to be attacked … are military objectives,”(122) and “tak[ing] all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing” civilian harm.(123)  It also requires the provision of “effective advance warning … of attacks which may affect the civilian population, unless circumstances do not permit.”(124) 133 In assessing the adequacy of precautions, under the provisions of Additional Protocol I, the measure is one of “feasibility,” not perfection.  The United States has taken the position, for example, that “measures to minimize civilian casualties and damage must be taken to the extent that military necessities permit under the circumstances ruling at the time.”(125)  Numerous other States have emphasised the limitations of practicality,(126) and that assessments consider the circumstances prevailing at the time of the decision, not after the fog of war has lifted and hindsight reveals other options and consequences.(127)  In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:  

“The obligation to do everything feasible is high but not absolute….  Both the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used.  Further, a determination that inadequate efforts have been made to distinguish between military objectives and civilians or civilian objects should not necessarily focus exclusively on a specific incident.”(128)

134 The requirement of effective warnings to the civilian population is also tempered by the express caveat, “unless circumstances do not permit.”(129)  The circumstances in question include the effect on achievement of the military mission or the security of the forces.  As the U.S. Naval Handbook states,  

“When circumstances permit, advance warning should be given of attacks that might endanger noncombatants in the vicinity.  Such warnings are not required, however, if mission accomplishment requires the element of surprise or the security of the attacking forces would otherwise be compromised.”(130)

135 The nature of the combat and the tactics of the adversary also affect the practicality of various precautions, including advance warnings.  As the Canadian Judge Advocate General has explained,  

“The reality of combat must also be taken into consideration when assessing precautionary measures.  As a result, the written word of the Protocols must be interpreted in the practical context within which the rules were designed to be applied.  Those assessing the actions of those participating in targeting decisions must remember that “‘[d]etached reflection cannot be demanded in the presence of an upturned knife.’”(131)

136 As a stark example, consider an adversary that launches mortars or anti-tank missiles from within civilian areas.  There may be no choice except to return fire, even though this creates jeopardy for the civilians in the vicinity.  Issuing an advance warning of the counter-fire may also be impractical, because it gives the shooter time to move.  For this reason, advance warnings to the civilian population may be feasible mostly before hostilities begin in a particular area, or where the lack of surprise or speed of response does not significantly affect military advantage.  137 In certain circumstances, general warnings might be adequate in order to fulfil the obligations of the parties to an armed conflict under international law.  Indeed, the U.S. Air Force Pamphlet (explains that “[t]he practice of states recognizes that warnings need not always be given.  General warnings are more frequently given than specific warnings, lest the attacking force or the success of its mission be jeopardized.”(132)  The United States endorsed this view during hostilities in the Gulf region in 1991, stating that “[a] warning need not be specific; it may be a blanket warning, delivered by leaflets and/or radio, advising the civilian population of an enemy nation to avoid remaining in proximity to military objectives.”(133)  The ICRC has recognised that “[i]n U.S. practice, bombardment warnings have often been general in their terms, e.g. advising civilians to avoid war-supporting industries, in order not to alert the air defence forces of an impending attack on a specific target.”(134) 138

During the Gaza Operation, the IDF took precautions that were consistent with the safeguards required by law or suggested by the practice of other countries.  As discussed further in Section V.C(4) below, the IDF not only implemented a range of precautions related to targeting and munitions, but also used an extensive system of graduated warnings to civilians, including both general advance warnings through media broadcasts and widespread leafleting, regional warnings to alert civilians to leave specific areas before IDF operations commenced, and specific warnings to civilians in or near military targets, through telephone calls and warning shots with light weapons.  While these warnings, unfortunately, could not eliminate all harm to civilians, they were frequently effective, as aerial surveillance many times was able to confirm the resulting evacuation of numerous civilians prior to an attack by the IDF.

(c) The Parallel Obligation of Those Controlling Territory to Minimise Civilian Casualties

  139 The parties in control of the territory where the hostilities take place also have obligations under the Law of Armed Conflict to minimise civilian harm, including with regard to their own population.  Thus, the parties to the conflict “shall, to the maximum extent feasible, take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”(135)  This means they should “avoid locating military objectives within or near densely populated areas,”(136) and in anticipation of hostilities, they must “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.”(137)  To do the opposite — to place 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.  140 Thus, combatants who choose to fight from within civilian buildings bear responsibility for the consequences, because their very presence in such structures “will make an attack against them legitimate.”  As the ICRC explains in its Commentary to Additional Protocol I,  

“It is clear that a belligerent who accommodates troops in purely civilian buildings, for example, in dwellings or schools, or who uses such buildings as a base for combat, exposes them and the civilians present there to serious danger: even if attacks are directed only against members of the armed forces, it is probable that they will result in significant damage to the buildings.”(138)

141 During the Gaza Operation, Hamas made it a centrepiece of its military strategy to locate combat forces and weapons in civilian areas, in stark contrast to the IDF’s significant efforts to minimise harm to civilians.  As discussed below in Sections IV.B and V.D, Hamas deliberately exposed civilians to harm.  It launched rockets from and established weapons workshops and storage sites near homes, schools, mosques and U.N. facilities; it used residences and public institutions as bases of operation; it misused medical facilities and ambulances; and it booby-trapped entire civilian neighbourhoods.  The evidence is overwhelming, set forth in photographs, in independent press reports, and in Hamas’ own boasts to local media.        
FOOTNOTES
(63) Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 Yale Hum. Rts & Dev. L.J. 143, 150 (1999) (emphasis added).

(64) Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in Yearbook of International Humanitarian Law 3, 9 (Timothy L.H. McCormack ed., 2005).

(65) NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 51.

(66)Id. ¶ 52.

(67) Additional Protocol I, art. 48.  Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law.  See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at ¶ 20 (11 December 2005).
(68)Additional Protocol I, art. 51(2) (emphasis added).

(69) Additional Protocol I, art. 52(2).

(70) International Committee of the Red Cross, Customary International Humanitarian Law, Vol. I: Rules at 11 (Jean-Marie Henckaerts and Louise Doswald-Beck, eds., 2005) (hereafter “ICRC CIL Study, Rules”), Rules 1 and 7.  Like many other States, Israel does not agree that all of the “rules” stated in the ICRC CIL Study reflect customary international law, but it does agree that it accurately states the principle of distinction.  See generally Daniel Bethlehem, The Methodological Framework of the Study, in Elizabeth Wilmshurst and Susan Breau, Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007), at 3-14.  W. Hays Parks, The ICRC Customary Law Study: A Preliminary Assessment,  99 Am. Soc’y Int’l L. Proc. 208, 212 (2005) (arriving at the “preliminary conclusion that [the study] is not an impartial analysis of the law but rather a compilation of statements . . . it lacks context, a filtration process, and battlefield state practice”).  See also Charles Garraway, “The Use and Abuse of Military Manuals,” 7 Yearbook of International Humanitarian Law, at 425-440 (Timothy L.C. McCormack ed.) (T.M.C. Asser Institute, The Hague, Netherlands 2004).

(71) For example, Australia, Canada, France, Italy, New Zealand and the United Kingdom all expressly stated upon ratification that Article 52(2) of Additional Protocol I was neither intended to address, nor did it address, the question of incidental or collateral damage resulting from an attack directed at a military objective.  See International Committee of the Red Cross, Customary International Humanitarian Law, Vol. II: Practice, (Jean-Marie Henckaerts and Louise Doswald-Beck, eds., 2005) (hereinafter “ICRC CIL Study, Practice”), Ch.1, ¶¶ 86-91.

(72)See ICRC CIL Study, Practice, Ch. 1, ¶¶ 143, 147, 149 (noting also statements by Germany, the Netherlands, and the United States to this effect).

(73)See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at ¶¶ 34-35 (11 December 2005).

(74) Lassa Oppenheim, II International Law: Disputes, War and Neutrality 525 (7th ed. 1952).

(75)See, e.g., ICRC CIL Study, Practice, Ch. 2, ¶ 635 (quoting Australia’s Defence Force Manual as providing that “[t]he presence of noncombatants in or around a military objective does not change its nature as a military objective.  Noncombatants in the vicinity of a military objective must share the danger to which the military objective is exposed.”).  Some of the manuals cited in the ICRC study were not necessarily formal military manuals in a classic sense, but rather training manuals.

(76) W. Hays Parks, Air War and the Law of war, 32 A.F. L. Rev. 1, 4 (1990).

(77) Additional Protocol I, art. 52(2).

(78) ICRC Commentary on Additional Protocol I. Article 5(4)(a), ¶ 1953.

(79) Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in 8 Yearbook of International Humanitarian Law 3, 38 (Timothy L.H. McCormack 2005) (quoting Prosecutor v. Galić, (hereafter “Galić”) Case No. IT-98-29-T, Judgment and Opinion, ¶¶ 50-51, 55 (5 December 2003).

(80) ICRC CIL Study, Practice, Ch. 2, ¶ 335 (quoting Netherlands, Military Manual (1993)).

(81)See, e.g., ICRC CIL Study, Practice, Ch. 2, ¶¶ 334, 337 (quoting manuals of Italy and Spain).  The U.S. Naval Handbook states that determinations of whether civilians have taken a direct part in hostilities and thus may lawfully be attacked must likewise be made by “[c]ombatants in the field,”  who “must make an honest determination as to whether a particular civilian is or is not subject to deliberate attack based on the person’s behavior, location and attire, and other information available at the time.”  ICRC CIL Study, Practice, Ch. 1, ¶ 830.  Canada’s Law of Armed Conflict Manual states that “[a] concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation.”  ICRC CIL Study, Practice, Ch. 4, ¶ 169.

(82) ICRC CIL Study, Practice, Ch. 2, ¶ 336 (quoting New Zealand’s Military Manual) (emphasis added); see also ¶¶ 329, 332, 334, 337(quoting manuals of Australia, Germany, Italy, and Spain).  The United States Government likewise recognizes that “the anticipated military advantage need not be expected to immediately follow from the success of the attack, and may be inferred from the whole military operation of which the attack is a part.”  ICRC CIL Study, Practice, Ch. 2, ¶ 361 (quoting the Report on U.S. Practice, 1997).

(83)See ICRC CIL Study, Practice, Ch. 2, ¶¶ 329, 331, 336, 339 (quoting manuals of Australia, Ecuador, New Zealand, and the United States); see also id. ¶ 361 (noting U.S. Government’s view that “[t]he foreseeable military advantage from an attack includes increasing the security of the attacking force.”).  See also Noam Neuman, Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law, 7 Yearbook of Int’l Hum. L 79, 91-96, 109, 111 (2005) (“When interpreting the term ‘similar military advantage,’… it seems obvious that the lives of the soldiers must be taken into account.”).

(84) ICRC CIL Study, Practice, Ch. 2, ¶ 687 (quoting Australia’s Defence Force Manual, 1994); see also ¶¶ 688-705 (quoting other military manuals).

(85)  See Judge Advocates Corps, U.S. Air Force, Operational Law Handbook (2007 edition), at 22 (emphasis added), available at http://www.fas.org/irp/doddir/army/law2007.pdf.

(86)  Id. (emphasis added).

(87)See Yoram Dinstein, The Conduct of Hostilities Under the Law of Armed Conflict (Cambridge University Press 2004), at 99 (“The real test in land warfare is whether a given place, inhabited by civilians, is actually defended by military personnel.  Should that be the case, the civilian object becomes – owing to its use – a military objective.”).

(88) Charles Garraway, Moderator, Panel Discussion at the U.S. Naval War College: When Civilian Objects Become Military Objectives, 78 International Law Studies 214-216, Blue Book series (“[I]f a prescribed area is defended [by opposing military forces], any building within the area (other than an assembly point for the collection of wounded, marked as such) would be exposed to attack, irrespective of its ostensible status as a civilian object.”).

(89) Additional Protocol I, art. 51(4).

(90) W. Hays Park, Air War and the Laws of War, 32 A.F.L. Rev. 1, 5 (1990) (citing Paul Ramsey, The Just War: Force and Political Responsibility 154 (1968)).

(91) Additional Protocol I, art. 51(4).

(92) Rüdiger Wolfrum & Dieter Fleck, Enforcement of International Humanitarian Law, in The Handbook of International Humanitarian Law 675, 697 (Dieter Fleck ed., 2d ed. 2008).

(93) Galić, ¶ 42 (quoting Prosecutor v. Blaškic; Case No. IT-95-14-T, Trial Judgment, ¶ 180 (3 March 2000)).  See also id., ¶ 54 (explaining that Additional Protocol I, art. 85(3)(a) “qualifies as a grave breach the act of wilfully ‘making the civilian population or individual civilians the object of attack’).  The ICRC Commentary likewise confirms that “in relation to criminal law the Protocol requires intent and, moreover, with regard to indiscriminate attacks, the element of prior knowledge of the predictable result.”  Yves Sandoz, Christophe Swinarski & Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977  to the Geneva Conventions 12 June 1949 (International Committee of the Red Cross, 1987) (hereafter “ICRC Commentary on Additional Protocol I”), art. 51(2), at ¶ 1934.

(94) See Section V.B(1) below (noting, for example, statements made by Hamas officials that they were deliberately directing their rockets at Israeli population centers).

(95) Although the term “combatants” derives from the Law of Armed Conflict applicable to international armed conflicts, it is used here to describe the members of Hamas’ armed force in Gaza, with no prejudice to the classification of the conflict itself.

(96)See Section V.C(2) below.

(97) Geneva Convention IV, art. 28.

(98) Additional Protocol I, art. 51(7).

(99)See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation/Pages/cast-lead-Interrogations.aspx.

(100)Id.

(101) Transcript of Statement of Hamas Member of Palestinian Legislative Council, Fathi Hamad, Al-Aqsa TV, 29 February 2008, video available at http://www.youtube.com/watch?v=ArJbn-lUCh4.

(102) Report of the Secretary-General on Children and Armed Conflict, delivered to the Sixty-third session of the General Assembly, U.N. Doc. S/2009/158, 26 March 2009.

(103) Additional Protocol I, art. 51(5)(b).

(104) Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.

(105)See Elements of Crimes, at Article 8(2)(b)(iv).

(106) Australia’s Defence Force Manual states, for example, that “Collateral damage may be the result of military attacks.  This fact is recognised by [the Law of Armed Conflict] and, accordingly, it is not unlawful to cause such injury and damage.”  ICRC CIL Study, Practice, Ch. 4, ¶ 14.  See also ICRC CIL Study, Practice, Ch. 4, ¶ 18 (quoting Canada’s Law of Armed Conflict Manual) and ¶ 48 (quoting U.S. Naval Handbook).

(107) Major General A.P.V. Rogers, Lecture delivered at Lauterpacht Center for International Law, University of Cambridge: Command Responsibility under the Law of War  (1999) available at
www.lcil.cam.ac.uk/Media/lectures/doc/COMDRESP.doc (emphasis added).

(108) NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 48.

(109)See, e.g., ICRC CIL Study, Practice, Ch. 4, ¶ 195 (noting Austria’s statement that “with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative” for judging proportionality in attack) (emphasis added).  Numerous other States have made similar declarations.  See id. ¶¶ 196-205.  As Germany stated forcefully, “the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.”  Id. ¶ 199 (emphasis added).

(110) NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 50-1 (emphasis added).

(111) W. Hays Parks, Book Review, 28 Geo. Wash. J. Int’l L. & Econ. 207, 218 (1995) (emphasis added).

(112)See ICRC CIL Study, Practice, Ch. 4, ¶¶ 161-165, 167-174.

(113)See, e.g., ICRC CIL Study, Practice, Ch. 4, ¶¶ 161, 169.

(114) Stefan Oeter, Methods and Means of Combat, in The Handbook of International Humanitarian Law 119, 135 (Dieter Fleck ed., 2d ed. 2008) (emphasis added).

(115) Rome Statute, art. 8(2)(b)(iv).

(116) The ICTY has adopted a similar standard, explaining that “[t]o establish the mens rea of a disproportionate attack the Prosecution must prove . . . that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties.”  Galić, ¶ 59 (emphasis added).

(117)See Section V.C(2) (quoting operational order under which legitimate military objectives should not be attacked if “the expected harm to civilians or civilian objects … would [] be excessive in relation to the military advantage anticipated”).

(118) A Hamas activist captured by IDF forces during the operation confirmed during his interrogation that senior Hamas members were hiding out in Shifa Hospital during the Gaza Operation. See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at
http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation/
Pages/cast-lead-Interrogations.aspx;
see also
Amir Mizroch, Dichter: Hamas salaries paid at Shifa Hospital, Jerusalem Post, 12 January 2009, available at
pagename=JPost/JPArticle/ ShowFull&cid=1231424936164.

(119)See IDF Spokesperson Unit, IDF VLOG: Israeli Airstrikes Aborted to Protect Civilians, 14 January 2009, available at http://idfspokesperson.com/2009/01/
14/idf-vlog-israeli-airstrikes-aborted-to-protect-civilians/.

(120) For specific examples, see Section V.D(2) (describing attacks approved for the middle of the night, when nearby offices would presumably be empty; attacks limited to precision munitions or utilizing delay fuses; and numerous incidents of advance warnings to civilians).

(121) See Additional Protocol I, art. 57(2)(a)(i), (ii).

(122) Additional Protocol I, art. 57(2)(a)(i).

(123) Additional Protocol I, art. 57(2)(a)(ii).

(124) Additional Protocol I, art. 57(2)(c).

(125) ICRC CIL Study, Practice, Ch. 5, ¶ 125 (citing Report on US Practice, 1997).

(126) ICRC CIL Study, Practice, Ch. 5, ¶¶ 147-158.

(127) ICRC CIL Study, Practice, Ch. 5, ¶¶ 147-158, 182-183.

(128) NATO Bombings, Final Report to the ICTY Prosecutor, ¶ 29.

(129) Additional Protocol I, art. 57(2)(c); see also ICRC CIL Study, Rule 20.

(130) U.S, Naval Handbook (1995), ¶ 11.2, see also ¶ 8.5.2; ICRC CIL Study, Practice, Ch. 5, ¶ 457.

(131) Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in Yearbook of International Humanitarian Law 3, 25 (Timothy L.H. McCormack ed., 2005).

(132) U.S. Air Force Pamphlet (1976), ¶¶ 5-3(c)(2)(d); ICRC CIL Study, Practice, Ch. 5, ¶ 456 (emphasis added); see also id. ¶ 457 (“warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy”).

(133) ICRC CIL Study, Practice, Ch. 5, ¶ 483 (emphasis added).  The Department further insisted that “[t]he ‘unless circumstances do not permit’ recognizes the importance of the element of surprise.  Where surprise is important to mission accomplishment and allowable risk to friendly forces, a warning is not required.”  Id.

(134) ICRC CIL Study, Practice, Ch. 5, ¶ 485.

(135) Additional Protocol I, art. 58(c).

(136) Additional Protocol I, art. 58(b) (emphasis added).

(137) Additional Protocol I, art. 58(a) (emphasis added).

(138) ICRC Commentary to Additional Protocol I, art. 57(2)(a)(i), ¶ 2196.