V. THE USE OF FORCE: IDF’s CONDUCT OF THE OPERATION AND PROCEDURES TO ENSURE COMPLIANCE WITH INTERNATIONAL LAW

C. IDF’s Conduct of the Operation and Procedures to Ensure Compliance with International Law

209 The inherent asymmetry between a State defending its civilians from terrorist attack and the terrorist organisations and other non-State actors raises acute dilemmas, challenges and intrinsic differences in assessing their conduct.  Unlike Hamas and other terrorist organisations that Israel faces, Israel is firmly committed — as a matter of both policy and practice — to respecting its obligations under international law, including under the Law of Armed Conflict.  As discussed further below, the IDF routinely undergo mandatory extensive training regimens designed to familiarise its soldiers with the laws of war, and actively involved military lawyers in advising commanders during both planning and operations, to ensure that they are aware of their obligations.  Observance of the Law of Armed Conflict is also reflected in the IDF’s specific orders and rules of engagement for the Gaza Operation; in the many specific precautions the IDF took during the Gaza Operation to try to minimise civilian harm; and in Israel’s support for humanitarian efforts during the fighting.  Finally, Israel’s commitment to the rule of law with respect to the Gaza Operation is safeguarded by the extensive mechanisms it has in place, both within the IDF and outside it, to investigate alleged violations of the rules and ensure accountability for any such violations, should they occur. 210 Each of the policies described in this section was instrumental in fulfilling IDF’s obligations under the Law of Armed Conflict, as well as setting and achieving a high standard of protection for civilians during the Gaza Operation, often well in excess of the requirements of the Law of Armed Conflict.  For instance, the in-depth training of IDF forces to respect the Law of Armed Conflict provided soldiers and commanders with the necessary knowledge and tools to make appropriate split-second decisions in the heat of battle, despite Hamas’ attempts to deprive Israeli forces of options other than attacks that put civilians at risk.  The involvement of military lawyers provided yet another layer of protection.  The operational order in relation to the Gaza Operation clearly set forth the principles of distinction and proportionality, which all IDF forces were instructed to observe as an integral part of their battle orders.  In practice, IDF forces imposed on themselves a multi-faceted system of early warnings, which made their operations far more complex and largely eliminated the element of surprise the IDF might have otherwise gained in its battle against Hamas.  In many cases, IDF forces provided not one but multiple warnings prior to each attack and used sophisticated technology to confirm the departure of civilians and minimise collateral damage. 211

Ultimately, despite all the training, supervision and precautions, the actions of IDF forces during the Gaza Operation were not devoid of operational errors.  Nevertheless, based on investigation thus far, such errors did not amount to violations of International Humanitarian Law.  Israel is fully committed, however, to investigating all instances of alleged misconduct, to taking action to prosecute violations in appropriate cases and to making policy adjustments designed to prevent the repeat occurrence of unfortunate incidents.  The multi-tier internal and external review procedures existing for such investigation under Israeli law are not only being fully utilised in connection with the Gaza Operation, they have been enhanced as described further below.

(1)  IDF Training and Legal Supervision


(a) The IDF’s Training System and Legal Supervision

212 The IDF takes substantial measures to instil awareness of and respect for international law in commanders and soldiers.  The IDF Military Advocate General’s Corps provides instruction in the Law of Armed Conflict to fighting forces predominantly through the IDF School of Military Law.  The activities of the School in this regard are numerous and varied, including:  

  • Development of interactive computer software for instruction on rules of conduct in armed conflicts.  Several thousand copies of this software have been distributed throughout the forces, and it is regularly used for training instructors in Command courses, at the IDF Tactical Command College and at most of the training bases in the IDF.  Several militaries around the world have expressed interest in receiving the software for their internal training purposes.
  • Development of interactive software for teaching the Law of Armed Conflict.This software contains an introduction to international law and deals with subjects such as the legality of weapons, targeting, methods of warfare, international criminal law and command responsibility.
  • Wide distribution within the IDF of written materials, including leaflets for commanders, instruction booklets, placards and power-point presentations, dealing with offences in armed conflict, rules of conduct and other topics.
  • Regular delivery of lectures and workshops on the Law of Armed Conflict and related rules of conduct, by officers of the IDF Law School, as an integral part of the IDF’s training programs for senior and junior commanders.  These include lectures and workshops at the IDF Officer Training School, the Staff and Command College, Senior Command Courses and the National Security College.
  • Incorporating this information in the training of combat soldiers and integration of Law of Armed Conflict norms into IDF Combat Doctrine.  For example, the IDF tactical field manual on low intensity conflicts with irregular forces contains a chapter on legal and ethical aspects of military operations.
  • Offering academic courses in international law, the Law of Armed Conflict and belligerent occupation, command responsibility and norms of conduct, as part of the curriculum of the IDF Tactical Command College.
  • Publication of an educational booklet on the Law of War.  The latest edition of this booklet was published in 2006 and distributed to all unit commanders, senior officers, military colleges and the IDF Officers’ Training School.
  • Production of a Comparative Manual on the Law of Armed Conflict by the School of Military Law. Unique in kind, this is a comparative guide to the military manuals of Canada, Australia, Germany, United States and the Model Manual of the International Committee of the Red Cross, as well as the relevant international conventions relating to land, sea and air warfare.
213 The IDF also provides extensive training to inculcate moral norms in combat, based on “The Spirit of the IDF,” which sets forth the Code of Ethics for IDF soldiers.  The document emphasises paramount values of “Human Life” and “Purity of Arms,” defined as follows:  

“Human Life” – “IDF servicemen and women will act in a judicious and safe manner in all they do, out of recognition of the supreme value of human life.”
“Purity of Arms” – “IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the necessary extent and will maintain their humanity even during combat.  IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.” (196)

214 The IDF provides educational programs for soldiers on human rights issues at all stages of military service, starting with Basic Training and Combat Specialty Training Courses through courses for senior commanders. Several thousand commanders participate in such workshops every year. 215 In addition, the IDF has established a team, led by Battalion Commanders, to identify areas for improvement in these matters and to make changes where necessary. The Education Corps also analyses incidents involving ethical issues and publishes its conclusions throughout the IDF. 216 Leading up to and during the recent operations in Gaza, the IDF Military Advocate General’s Corps provided legal advice on the Law of Armed Conflict to commanders at the General Staff, Regional Command and Divisional levels.  The lawyers examined the legality of planned targets, participated in the operational planning process, helped direct humanitarian efforts, and took part in situation assessments, exercises and simulations.  Legal advisors also assisted in drafting operational orders and procedures and in preparing legal annexes to such orders. 217

IDF military lawyers were involved in advising commanders on international law aspects of the Gaza Operation.  The IDF structure ensures that the IDF legal advisors can provide frank and professional advice.  All legal advisers belong to the MAG Corps and are not subordinate to the commanders they advise.  According to Israeli law, the head of legal services in the IDF, the Military Advocate General has an independent status outside the military hierarchy in relation to all legal issues.  In principal legal aspects the MAG is subject to the guidance and supervision of Israel’s Attorney-General and regularly consults with the Attorney General.  In addition, IDF activities, including during active combat, as well as all MAG and Attorney General decisions are subject to judicial scrutiny and review by Israel’s Supreme Court sitting as the High Court of Justice.  As discussed below in Section V.C(5)(c), the High Court of Justice regularly reviews such activities and decisions, and intervenes in appropriate cases.

(b) Comparison with Other Systems of Training and Supervision

  218 The training and supervision provided by the IDF with respect to the Law of Armed Conflict is similar to — and in some ways more extensive — than the training and supervision undertaken in other militaries of democratic States.  Like Israel, many other countries provide their forces with training in the Law of Armed Conflict. (197)   In addition, many countries have adopted training programs similar to Israel’s in which forces are required not only to learn the applicable rules of the Law of Armed Conflict, but also to apply them in realistic scenarios. (198)  219 NATO’s International Security Assistance Force (“ISAF”) in Afghanistan recently issued tactical directives regarding compliance with the Law of Armed Conflict which mirror many of the steps taken by Israel.  One Directive, issued on 30 December 2008, directs all ISAF forces to ensure that uses of force be “proportionate” and that “the utmost of care should be taken to minimize any damage.” (199)   The Directive also requires military commanders to train their forces “to minimize the need to resort to deadly force” and to issue — as Israel did — repeated “general and specific warnings (visual and audible)” before using deadly force.(200)  A Directive issued 6 July 2009 calls for commanders to scrutinise, as Israel does, the use of close air support (“CAS”) against residential compounds and carefully to “weigh the gain of using CAS against the cost of civilian causalities.” (201)  The Directive further instructs commanders to ensure “complete understanding at all levels — down to the most junior soldier” regarding the proper use of force. (202) 220 Moreover, lawyers in other countries play a similar role to the role held by legal advisers for the IDF, examining the legality of planned targets, providing legal advice to commanders both in the field and during the planning stages of operations, and drafting operational orders and procedures. (203)  For example, in the United Kingdom, legal advisers for the Army are normally available at the divisional level.  In an air campaign, a legal adviser is normally on the staff of the theatre air commander.(204)  Many other countries do not have lawyers available and involved to the degree these countries and Israel do. 221

Israel’s system for ensuring compliance with international law compares favourably to those of other countries in another respect as well.  Although the head of legal services within several other countries’ militaries has a status entirely independent of the military hierarchy, (205) the legal advisers in many other countries do not have such independent status.

 

(2) IDF Rules of Engagement During the Gaza Conflict

  222 The IDF’s emphasis on compliance with the Law of Armed Conflict was also directly incorporated into the rules of engagement for the Gaza Operation.  The operational order for the Operation in Gaza specifically stated that “[a]ll IDF activities are subject to the principles and rules of international law.”  These rules and principles were further detailed in the order, which emphasised four guiding principles that applied in an integrated and cumulative manner: military necessity, distinction, proportionality and humanity:  
  • Military Necessity: “An attack shall be permitted as long as it is necessary to achieve a military purpose in the course of the military campaign,” subject to the other principles and rules set forth.
  • Distinction: “Strikes shall be directed against military objectives and combatants only.  It is absolutely prohibited to intentionally strike civilians or civilian objects (in contrast to incidental proportional harm).”
  • Proportionality: “A legitimate military objective may be attacked even if the strike would cause incidental harm to civilians or civilian objectives, provided that the expected harm to civilians or civilian objects, or a combination thereof, would not be excessive in relation to the military advantage anticipated.”
  • Humanity: “When legitimate military target is attacked, superfluous suffering to enemy combatants shall be avoided.  In this context, only legal weapons, which were approved by the relevant authorities within the IDF, shall be employed.”
223

The legal section of the operational order further enumerates several absolute prohibitions.(206)   With respect to targeting decisions, the document set out the governing legal principles with regard to particular targets.  These principles included the following:

 
  • Only military targets shall be attacked.(207)
  • Any attack against civilian objectives shall be prohibited.
  • A “civilian objective” is any objective which is not a military target.  In case of doubt, the forces are obliged to regard an object as civilian.
  • When a civilian objective is used by the enemy for a military activity it loses its protection and immunity and becomes a legitimate military target.  Nevertheless, when striking such a target, special care shall be taken to adhere to the principle of proportionality.
  • The presence of civilians within a military objective or in its vicinity does not negate as such, the military character of the objective.  Such a military objective may be attacked, subject to the principle of proportionality.
  • A dual use objective may be attacked if reliable, conclusive and up-to-date information confirms that it serves the military activities of the enemy, and subject to the principle of proportionality.  In case of doubt, such objective shall be presumed to be civilian.
224 The operational order confirmed that medical facilities and vehicles should be provided absolute protection from attack, unless they were being used by the enemy for military activities.  Religious institutions were similarly protected from attack, unless they were being used for military purposes.  Special precautions were to be taken when conducting military activities near U.N. or diplomatic premises, and ICRC staff were to be provided with as much freedom of movement and activity as possible, unless imperative military necessity required its limitation.  Cultural property was protected from attack unless used for military activities or in the case of imperative military necessity. 225 The document further confirmed the importance of minimising incidental harm to civilians and civilian facilities.  The operational order provided that “[a]s far as it is possible under the existing circumstances, civilian population in the vicinity of a legitimate military objective shall be warned before an attack.  Such early warning may be avoided, if it would risk the operation or the forces.”  In addition, “any attack on a legitimate target was to be planned to minimise collateral harm to civilians and civilian objectives, including by the determination of: the attack timing, the means of attack, the direction of attack, etc.”  IDF forces were to use only weapons approved as legal by IDF authorities, and such weapons were to be employed in accordance with the specific limitations and precautions applicable to each of them in the concrete professional orders. 226 The order contained numerous other provisions designed to implement the Law of Armed Conflict.  Among other things, the document provided that:  
  • Destruction of property shall be allowed only for imperative operational necessity and provided that the damage for the property would be proportional to the military advantage gained by the destruction.  The destruction of property for deterrence purposes is forbidden.
  • The presence of enemy combatants among the civilian populations shall not deny the civilian character of the population.
  • Precautionary measures shall be employed to minimise the risk for civilians in the course of the hostilities….  Civilians shall not be compelled to take actions that would endanger them.  They shall not be used as “human shields” to render military objectives or IDF forces immune from attack.  Civilians shall not be held hostages.  Forceful transfer of civilians is forbidden.  Collective punishment is forbidden.  Special protection shall be provided to the wounded and the sick, as well as to women, children and the elderly.
227 IDF’s rules of engagement strictly prohibit the use of civilians as human shields.  Moreover, the Israel Supreme Court has ruled that use of civilians in any capacity for the purpose of military operations is unlawful, including the use of civilians to call terrorists hiding in buildings.(208)  Following this judgment, this latter practice has also been proscribed by IDF orders.  The IDF is committed to enforcing this prohibition. 228 The IDF took a variety of measures to teach and instil awareness of these rules of engagement in commanders and soldiers.  As described above, these rules were delivered through lectures and workshops on the Law of Armed Conflict and related rules of conduct, by officers of the IDF Law School, as an integral part of the IDF’s training programs for senior and junior commanders.  In addition, they were included in leaflets for commanders, instruction booklets, placards and power-point presentations distributed within the IDF.  In the course of the operation in Gaza, whenever the legal advisers posted in the Southern Command or the Division identified a potential gap in the implementation of the said rules of engagement, they initiated the distribution of clarifications to the fighting forces. 229 While IDF’s rules of engagement were fully consistent with international law, IDF demonstrated its commitment to protecting civilians by issuing new instructions and orders in the course of the operation designed to further enhance and clarify these protections.  Several instructions were issued by the Southern Command and the Regional Division to all combating forces in order to emphasise and clarify important rules of engagement, for instance, with regard to the protection of ambulances and humanitarian convoys.

 

 

(3) IDF Pursuit of Legitimate Military Targets During the Gaza Conflict

  230 Consistent with its rules of engagement, IDF Forces sought to maintain an equilibrium between two competing considerations: military necessity and humanitarian considerations.  In the course of the Gaza Operation, IDF’s military necessities included first and foremost the prevention of rocket and mortar fire against Israel and Israelis, as well as the dismantling of terrorist infrastructure, but also the protection of IDF forces operating in the Gaza Strip. 231 As described above, during the Gaza Operation, IDF troops were exposed to considerable risk by the death traps Hamas had laid for them in urban areas, using the illegal tactics described in Section V.B above.  These took the form of booby-trapped and mined neighbourhoods, buildings, roads and tunnels, as well as anti-tank rockets, automatic weapons, and sniper fire from concealed positions in civilian buildings and suicide bombers dressed as civilians.  In such circumstances, the risk for the safety and security of IDF troops was extremely high, and was properly taken into account. 232

However, like all other considerations of military necessity, the protection of IDF troops did not override all other factors.  In accordance with the IDF’s operational plans and rules of engagement, military necessity was balanced against the fundamental obligations of the Law of Armed Conflict, through the principles of distinction, proportionality, and the obligation to take appropriate precautions to minimise civilian harm.

 

(a) Targeting of Hamas Terrorist Infrastructure

  233

Consistent with the principle of distinction, IDF forces attacked military targets directly connected to Hamas and other terrorist organisations’ military activities against Israel.  For instance, IDF forces targeted Hamas rocket launchers, weapons stockpiles, command and control facilities, weapons factories, explosives laboratories, training facilities and communications infrastructure.  That these objects were often concealed or embedded in civilian facilities such as residential buildings, schools, or mosques did not render them immune from attack.  In accordance with the Law of Armed Conflict, civilian facilities that served military purposes did not enjoy protection from attack.  Thus, a residential building that doubled as an ammunition depot or military headquarters was a legitimate military target for attack.

234 Below is an illustrative account of military targets struck by the IDF during the operation:  
  • Hamas’ bases, posts and headquarters:
    • Izz al-Din al-Qassam Brigades and Executive Force headquarters in the northern Gaza Strip (struck on 27 December): Hamas commandeered the compound after it took control of the Gaza Strip in June 2007.  It served to store weapons and equipment, as well as housing armoured patrol cars (confiscated from the Palestinian security services operating in the Gaza Strip before the Hamas takeover).  Hamas used two of the vehicles in the attack on the Kerem Shalom crossing on 19 April 2008, during which seven IDF soldiers were wounded.  The headquarters also served as a base from which terrorist attacks were dispatched.  The facility was also Hamas’ main interrogation facility and a holding place for Fatah prisoners.
    • Headquarters and weapons store of the Izz al-Din al-Qassam Brigades at Tel Zaatar, in the Jabaliya area (struck on 27 December): Hamas took control of the compound during its violent confrontations with Fatah and thereafter used it for military training.
    • Hamas’ Al-Islam post in the northern Gaza Strip (struck on 27 December): In the past the site served the Palestinian Preventive Intelligence.  Hamas commandeered the building when it took over the Gaza Strip, and it serves as a base for the Executive Force, which was directly connected to Hamas’ military wing, as described further in Section V.C(3)(b) below.  It also served as a post for senior members of Hamas naval force and a facility for detaining and interrogating Fatah activists and individuals suspected of collaborating with Israel.
    • Hamas’ main headquarters compound in Gaza City (struck on 27 December): This compound served as Hamas’ Gaza City headquarters, and the office of Ismail Haniya, head of the Hamas administration, is located in the compound.  The headquarters also served as a point for Executive Force patrols to gather before they went out into the city.  In addition, there were police cars and armoured patrol cars confiscated by Hamas when it took over the Gaza Strip.
    • Hamas post and training camp in the central Gaza Strip (struck on 27 December): Hamas used the building to store weapons.
    • Hamas training camp in the southern Gaza Strip (struck on 27 December): The camp also served as a central post for Hamas’ auxiliary force and included a prison facility and weapons store.
    • Headquarters and weapons storage belonging to the Izz al-Din al-Qassam Brigades and the Special Force (struck on 27 December):  After Hamas took over the Gaza Strip it served as headquarters for its security services, housing a weapons store and offices.  No civilians were living there.  During fighting, Hamas positioned snipers in the building and rocket launchers on the roof.
    • An Izz al-Din al-Qassam Brigades training outpost in the Al-Maqusi towers in the northern Gaza Strip (struck on 28 December): Hamas’ military wing used this facility for training.
    • Ismail Haniyah’s office in the Hamas compound in Gaza City (struck on 31 December): The office of Ismail Haniyah, attacked by Israeli Air Force on the nights of 30-31 December, was used for planning, supporting, and funding terrorist activities against Israel.
  • Hamas’ armament production and storage sites:
    • Research and development centre in the Islamic University in Gaza (struck on 28 December): Hamas used the site to develop rockets with improved launching range.
    • Throughout the operation, the IAF attacked dozens of workshops and weapon stores, many of them located in the houses of Hamas operatives and public buildings (including mosques).
  • Rocket and mortar launch sites:
    • Throughout the operation, the IAF attacked areas regularly used to launch rockets and mortars against Israel to prevent the arrival of launch squads to those areas.  See, for instance, a video of a rocket launcher ready for firing that was struck on 13 January.(209)
  • Smuggling tunnels:
    • Throughout the operation, IDF attacked dozens of tunnels along the Philadelphi route used for smuggling of arms and ammunition for terrorist attacks against Israel from Sinai to the Gaza Strip.  They were also used to smuggle terrorist operatives from Egypt into the Gaza Strip and vice versa.
  • Mosques used by Hamas for military purposes:
    • A Mosque in the Tel al-Hawa neighbourhood of Gaza City that served as a storehouse for armaments (struck on 31 December):  The mosque served as an arms storage facility and a launching site for terrorist activity.  The strike caused a long series of secondary explosions from armaments and ammunition that were stored in the mosque (including rockets, some of which were long-range Grad rockets).  The raid took place following information received prior to the attack, indicating that many fighting operations were being launched out of and in the vicinity of the mosque.  For instance, the mosque was used for storing weapons, firing rockets into Israeli territory (including fire on the morning of 31 December), and providing a hiding place for terrorist operatives.
    • Al-Khulafa mosque in Jabaliya (struck on 1 January):  The mosque was a focal point of the Izz al-Din al-Qassam Brigades’ terrorist activities.  It served as an important Hamas operations room where organisation meetings were held and from which operatives were dispatched to carry out terrorist attacks against Israel.  In addition, it contained a rocket arsenal which included long-range standard Grad rockets.  The strike on the mosque was followed by a long series of secondary explosions, causing the building to burn for a long time, and indicating that a large quantity of hidden weapons and ammunition had been stockpiled in it.

235

It should be noted that Israeli forces have come under criticism from various international organisations for attacking a number of Hamas targets, such as various “ministries” operated by Hamas, which were alleged to be civilian in nature.  While Hamas operates ministries and is in charge of a variety of administrative and traditionally governmental functions in the Gaza Strip, it still remains a terrorist organisation.  Many of the ostensibly civilian elements of its regime are in reality active components of its terrorist and military efforts.  Indeed, Hamas does not separate its civilian and military activities in the manner in which a legitimate government might.  Instead, Hamas uses apparatuses under its control, including quasi-governmental institutions, to promote its terrorist activity. 236

IDF took account of these realities in carrying out attacks against a number of Hamas ministries during the Gaza Operation.  With respect to each particular target, IDF made the determination that the attacks were lawful under international law.  Finally, it is important to point out that all of these strikes were carefully planned and executed in a manner that minimised the risk to civilians.

(b) Targeting of Terrorist Operatives

  237 In addition to Hamas terrorist infrastructure, the military operatives of Hamas and other terrorist organisations were also legitimate targets for attack by the IDF.  Hamas’ military forces in Gaza were comprised mainly of the Izz al-Din al-Qassam Brigades, but also of other forces making up the so-called “internal security” apparatus, which perform significant military functions during intense fighting with Israel.  Due to their military functions, these internal security forces were not accorded the immunity from attack generally granted to civilians. 238 Whereas members of a civilian police force that is solely a civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict, international law recognises that this principle does not apply where police are part of the armed forces of a party.(210)   In those circumstances, they may constitute a legitimate military target.  In other words, the status of the Palestinian “police” under the Law of Armed Conflict depends on whether they fulfilled combat functions in the course of the armed conflict.  The evidence thus far is compelling that they are. 239 Hamas formed the Executive Force in May 2006 as a militia force loyal to Hamas and opposed to the security apparatus of the Fatah-led Palestinian Authority.  Hamas drew this paramilitary force largely from its military wing, the Izz al-Din al-Qassam Brigades, and armed the members with anti-tank missiles, mortars, machine guns and grenades.  The newly recruited commanders and subordinates were not obliged to give up their military wing affiliation, and continued to operate simultaneously in both functions. 240 After a series of armed clashes, Palestinian President Mahmoud Abbas outlawed the Executive Force in January 2007, accusing it of “lawlessness and assassinations.” (211)   Nevertheless, Hamas continued building the force and deployed it to conduct a bloody coup to replace the Palestinian Authority in Gaza several months later.  241 At that point, Hamas restructured the Executive Force and subdivided it into several units, including the “police.”  The newly established police force thereafter assumed many traditional law enforcement functions, to the extent enforcing the unlawful rule of a terrorist organisation over a population could be termed “law enforcement.”  As the leader of the Executive Force emphasised in an August 2007 interview, however, the force’s members were also “resistance fighters,”(212) a common term for Hamas’ military wing.  Their weaponry continued to include machine guns and anti-tank weapons — not the tools of a regular civilian police force.  

 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

 

Left: The Hamas Executive Force (International Middle East Media Center, August 2007);

Right: A photo of Hamas Executive Force operative shouldering a home-made anti-tank missile launcher (www.palissue.com, 13 June 2007)

242 After its transformation, the former Executive Force continued to be closely integrated with — although not formally part of — the al-Qassam Brigades.  At times, the line between the two would disappear entirely, such as in the photograph below in which members of the al-Qassam Brigades pose on top of a police vehicle during training operations.  As documented by the Intelligence and Terrorism Information Center and, as illustrated further below, many members of the internal security services also served directly in the al-Qassam Brigades.(213)  

 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Armed Izz al-Din al-Qassam Brigades operatives standing on a police car during trainings 243 Even more crucially, as noted in an April 2008 Report by the Intelligence and Terrorism Information Center, the operational military plan for hostilities with Israel was that:  

“The operatives of the internal security system and of the other Palestinian terrorist organizations would integrate into the Izzedine al-Qassam Brigades, program for defence should the IDF enter the Gaza Strip.”(214)

244 Indeed, several days before the ground phase of the Gaza Operation began, Hamas police spokesman Islam Shahwan said that the Hamas leadership had instructed police to fight against IDF forces.  He added that senior police officers had drawn up action plans and that the police and the security forces were on high alert for a ground assault.(215)   He further noted that “the police forces had received . . . instructions from the leadership to fight the enemy in [the event of] an invasion” into the Gaza Strip.(216) 245 It appears that the police in fact followed these instructions.  In an interview about the functioning of the police during the Gaza Operation, Hamas police chief Jamal Jarah said that “[t]he police was able to defend the resistance home front by tracking down agents and arresting them” and that “the police took part [in the fighting] alongside the resistance and helped it defend the soil of Gaza.” (217)   Other leaders of Hamas’ internal security forces made similar statements.  Hussein Abu Azra, commander of National Security in the Gaza Strip, for example, promised that his forces would resist ‘“any act of aggression against the Gaza Strip’ and that they would defend the civilians using all means possible.” (218)  All of these statements confirm the reality that Hamas intended to, and did, in fact, employ its internal security forces for military activities during the Gaza Operation.  Under the Law of Armed Conflict, those security forces therefore are regarded for the purposes of the conduct of hostilities as combatants, and as combatants, they are legitimate military targets. 246 This collective role of the Gaza “police” as an integral part of Hamas armed forces is further evidenced by the fact that many Gaza “policemen” were also members of the al-Qassam Brigades.  The following photographs provide compelling evidence that dual membership in the al-Qassam Brigades and the police force was common, and that police officers killed during the Gaza Operation were hailed in obituaries as “martyrs of al-Qassam.”  They show obituaries for policemen as martyrs of the Izz al-Din al-Qassam Brigades.
 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Left: Shhade Fathi al-Kurd, “a commander and martyr of [Izz al-Din] al-Qassam” “Yavne Battalion artillery unit”;

Right: Fathi al-Kurd photographed in police uniform; however, the text reads, “A commander and martyr of [Izz al-Din] Al-Qassam”

 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Izz al-Din al-Qassam Brigades operative Muhammad Ibrahim Abu Sha’er, killed on 6 January 2009 in the Gaza Operation. 

Left: the operative’s body, with a headband saying “Al-Qassam Brigades.” 

Right: the operative, called “a martyr of Al-Qassam” appears in the uniform of the Rapid Intervention Force, one of the internal security forces.  According to the Hamas forum, he belonged to Hamas’ artillery unit (Source: PALDF, 7 January 2009)

 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Left: An obituary for Adel Abu Awn, commander of the sniper unit in the northern Radwan brigade of the Izz al-Din al-Qassam Brigades, who was also an officer in the Palestinian police.  The poster shows Adel Abu Awn in police uniform, proof of his double affiliation (Source: Hamas forum, 20 January 2009). 

Right: the original photograph of the poster, published on the Interior Ministry website July 2008.

 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Left: Muhammad Yahya Muhanna, commander in the Izz al-Din al-Qassam Brigades. 

Right: Muhammad Yahya Muhanna in Gaza police uniform (Source: PALDF, 30 December 2008)

247 In fact, there is evidence that an overwhelming majority of the police forces were also members of the Hamas military wing or activists of Hamas or other terrorist organisations.  A recent study has reviewed a list of all the internal security services members that Hamas reported killed during the Gaza Operation — consisting of 245 names in total.  It found that 75.2 percent were Hamas activists (mostly members of the al-Qassam Brigades), and the total number of terrorist activists and fighters (including members of other terrorist groups operating in Gaza) from among the number of fatal casualties of the Palestinian security forces was 311, or 90.7 percent.(219)  In other words, more than nine out of every ten alleged “civilian police” were found to be armed terrorist activists and combatants directly engaged in hostilities against Israel. 248

This evidence demonstrates that considering Hamas “police” casualties as civilians is inappropriate.  The reality is that the internal security services have been and continue to be a cadre of terrorist operatives armed with a variety of heavy weapons including anti-tank missile launchers, with standing orders to fight Israeli forces.  Under the Law of Armed Conflict, Israel is permitted to target such forces and their bases of operation.

 

(4) IDF Precautions During the Gaza Conflict

  249 In accordance with the requirement to take precautionary measures when feasible to minimise harm to civilians in pursuing legitimate military objectives, the IDF planned its attacks carefully.  Despite the enormous difficulties posed by Hamas’ tactics, the IDF’s efforts included not only a range of precautions related to targeting and munitions, but also an extensive system of warnings, including general advance warnings to the civilian population in the area of military operations, regional warnings and specific warnings to civilians in or near military targets (such as buildings used by terrorists for storing weapons or launching attacks).  Indeed, Israel has been commended for its extensive precautions during the Gaza Operation.(220)

 
(a) Precautions Regarding Targeting Munitions
  250 Given the incessant rocket attacks on Israeli civilians from Gaza, Israel had no real choice but to pursue Hamas and fight such terrorism.  It was clear to the IDF in planning the Operation that it would need to exercise great care given the population density of Gaza, and Hamas’ tactic of purposely hiding (and committing acts of terrorism against Israeli civilians from) within that population.  Advance planning was possible for some of the targets and attacks, but it was also clear that, as in all combat situations, commanders and soldiers in the field would have to make spontaneous decisions, based on Hamas actions at a given location and time. 251 For attacks planned in advance, the IDF’s efforts to implement the principles of distinction and proportionality began at the initial planning stage, where each operation and target was considered on an individual basis in order to ensure that it met the requirements of distinction, proportionality and precautions in attack.  Targeting decisions which were planned in advance were reviewed by several IDF authorities, including MAG officers.  The decision-making process involved an in-depth analysis of all relevant considerations, which was based upon the available intelligence, including the operational needs, the anticipated damage to property and sensitive sites, the anticipated harm to civilians, and so on.  Whenever possible, the IDF verified the accuracy of the information on the target by cross-checking updated and independent intelligence sources.  In this process, the IDF disapproved some, approved others only under certain conditions, such as the time of the attack, the type of weapons used (in order to achieve the military goal while reducing collateral damage), or required precautions prior to attack.  On numerous occasions the process resulted in rejection of proposed military operations, where, for example, the available intelligence regarding the proposed target was not sufficiently reliable or up-to-date, or where the likelihood of collateral damage to civilians and their property was considered excessive in relation to the military advantage anticipated. 252 Even where a target was authorised in advance, the IDF examined proportionality again immediately prior to the attack on the basis of real time data available to the person executing the attack.  Thus, for example, when a pilot approaching a target identified the potential for disproportionate collateral damage, he or she would refrain from attacking the target or even — when possible — would divert a missile already fired, as occurred occasionally during the Gaza Operation.(221)  These rules of engagement applied fully during the Gaza Operation.

253 Certain attacks could not be planned in advance, but became imperative in real time during combat, such as when ground forces came under fire from Hamas operatives.  However, the commanders authorised to approve such targeting decisions act under IDF orders which, as discussed in Section V.C(2) above, set forth the rules of distinction and proportionality and emphasise the importance of appropriate precautions.  Thus, pursuant to IDF standing orders, commanders in the field are expected to carefully assess both the expected military gain and the potential of collateral injury to civilians and civilian property in the area.  In making this determination, the commander considers numerous factors.  In assessing military advantage, for example, the commander will take into account the degree and immediacy of the threat posed by the target to the safety and security of Israeli civilians; the contribution of the target’s destruction towards the accomplishment of the mission; and the threat to IDF personnel.  In assessing possible collateral damage, the commander will consider the number of civilians near the target; whether they are exposed or protected; the expected radius of the strike’s lethal effects; and whether or not the attack can be delayed or carried out effectively with a more precise or less powerful weapon in the prevailing circumstances. 254 Second, when possible, the IDF used (in real time) updated and precise intelligence available regarding target identification and the risk of incidental civilian harm.  When necessary, it also cross checked intelligence sources before commencing attacks, even in cases in which delaying fire entailed additional risk to both Israeli civilians and IDF forces. 255 Third, the IDF gave considerable care to the choice of munitions.  Wherever possible, and even though it is not strictly required under international law, the IDF conducted pinpoint surgical aerial strikes, using precision guided munitions.  Several missiles were diverted moments before impact for this reason.  In total, about 80 percent of the air missiles fired by Israel were precision guided.  256 Fourth, the IDF employed various means for monitoring the presence of civilians in areas of operation, where possible, including aerial surveillance, before conducting aerial attacks.  The IDF aborted or postponed attacks on Hamas personnel and targets when it appeared that civilians were at risk, at the expense of attaining military advantage.  In fact, the IDF has released video footage conclusively demonstrating the diversion of missiles during the Gaza Operation.(222) 257 Fifth, in several cases, military targets were destroyed from the ground using mechanical equipment, rather than bombed from the air, in order to minimise collateral damage.  This approach enabled the orderly evacuation of civilians and kept damage to surrounding areas at a minimum, although it exposed IDF personnel to additional risk. 258 Sixth, to the extent feasible, the IDF timed attacks on targets so as to cause minimum collateral damage.  For example, buildings normally occupied only during daylight hours, and military targets which were located in proximity to such buildings, were struck at night.  Similarly, moving vehicles were planned to be hit when they had travelled as far away as possible from civilian bystanders.  259 Finally, the IDF took precautions regarding sensitive sites.  The IDF’s operational plans and rules of engagement order special precautions with regard to military activity in proximity to United Nations and Red Cross facilities (of which there are several hundred in Gaza), hospitals, religious sites and educational institutions — a total of almost 1,900 sensitive sites in the Gaza Strip.  All these sensitive sites were clearly marked in advance on IDF operational maps and aerial photographs, according to the information available to the IDF, as provided by the different organisations.  The IDF distributed these maps at all levels of command, and gave clear orders regarding the protection of facilities and vehicles of this sort.  The IDF set up a special Civil Administration situation room and a centre for humanitarian coordination to facilitate cooperation between the IDF and the U.N., the Red Cross and other international organisations. 260 In spite of these numerous precautionary measures, there is no way in a rapidly changing and complex battlefield environment to absolutely guarantee the safety of all civilians, civilian objects and sensitive sites.  As explained in Sections V.B(2) and V.B(3), Hamas and the other terrorist organisations operating in the Gaza Strip placed the civilian population and the facilities used by the U.N. and other international organisations and humanitarian agencies in substantial danger.  With the knowledge that the IDF limits its operations in the vicinity of such facilities, Hamas terrorists intentionally conducted military activity, including the launching of rockets and mortar shells, adjacent to them.  Similarly, as discussed above, Hamas terrorists located headquarters, bases, weapon storage facilities and other terrorist infrastructure close to the sensitive facilities of the U.N., Red Cross and other international organisations and even inside sensitive sites, such as Shifa hospital. 261

This mode of operation created complex operational, moral and legal challenges to the IDF, which frequently had to reconcile its commitment to minimise the risk to civilians and provide special protection to sensitive sites with military imperatives, such as the prevention of rocket launches from areas adjacent to schools and hospitals or the protection of troops under attack by Hamas terrorists operating from the vicinity of U.N. facilities.  In some cases, the IDF refrained from military activities because of potential significant harm to sensitive sites.  For example, the IDF did not attack Shifa hospital even though it served as the main headquarters for Hamas military leadership.(223)  In other cases where it was necessary to proceed with military operations despite the risk to sensitive sites, the IDF took precautions to minimise the risk for harm.

(b) Advance Notice to Civilians

  262 The IDF also made special efforts to notify civilians of impending IDF operations and to instruct them how to avoid harm.  The early warnings system was comprised of several layers that were complementary to each other. 263 First, general warnings were used, calling on civilians to stay away from sites where Hamas was conducting combat activities.  In addition, regional warnings were distributed in certain areas, calling on civilians to leave those areas before IDF forces operated in them.  Efforts were made to include in these warnings sufficient information to the residents, including a timeframe for the evacuation and designated specific routes for this purpose leading to safe areas.  Far from having no place to flee, residents could — and the vast majority did — move to safe locations.  Finally, specific warnings were issued to residents of particular buildings before attack.  264 Throughout the Gaza Operation, the IDF employed a variety of methods to communicate warnings effectively.  The warning techniques included:  
  • Radio Broadcasts and Phone Calls: The IDF conveyed instructions and advance warnings to residents by local radio broadcasts with IDF announcements and by about 165,000 phone calls.  This involved specific notices as well as a daily news broadcast (the latter from 31 December onwards).
  • Dropping of Leaflets: During the Gaza Operation, the IDF dropped a total of some 2,500,000 leaflets of various kinds in the Gaza Strip.  Some of the leaflets warned civilians to distance themselves from military targets, including buildings containing weapons, ammunitions or tunnels, or areas where terrorist activity was being conducted.(224) Other leaflets directed residents to leave a particular location and move to a safe zone by a certain route and within a defined period of time.  Such leaflets were distributed, for instance, in the northern Gaza neighbourhood of Sajaiya.(225)  While warnings were a significant tool to reduce the likelihood of civilian casualties, IDF forces did not consider the distribution of leaflets alone as sufficient to presume the absence of civilians at the relevant locations.
  • Specific Warnings Before Attacks: In addition to the above, the IDF made specific telephone calls just before an attack was about to take place, informing residents at risk about the upcoming strike and urging them to leave the place.  In certain instances, although such warnings were made, the civilians chose to stay.  In such cases, the IDF made even greater efforts to avoid civilian casualties and minimise collateral damage by firing warning shots from light weapons that hit the roofs of the designated targets, before proceeding with the strike.  These warnings were accompanied by real-time surveillance in order to assess the presence of civilians in the designated military target, despite the advance warnings.  Accordingly, the commander in charge assessed whether the collateral damage anticipated, including to those who chose to stay at the premises, was not excessive in relation to the military advantage anticipated.  The specific warnings were generally effective.  Several such incidents are discussed in Section V.D(2), including one in which all residents of a four-story apartment building safely evacuated following a series of warnings, and another in which surveillance confirmed the evacuation of a group of residents, although apparently one family remained despite the extensive warnings.
265

While the warning systems implemented by the IDF did not provide a 100 percent guarantee against civilian casualties, they were, in fact, highly effective.  Aerial video surveillance by IDF forces confirmed the departure of civilians from targeted areas prior to the attack as a direct result of the warnings. 

(c) Humanitarian Efforts

  266 At the same time that the IDF was taking substantial precautions to minimise civilian casualties, it was also implementing a far-reaching effort to ensure that the humanitarian needs of the civilian population in Gaza were met during the Gaza Operation.  This humanitarian effort included several components:  
  • Ensuring continuous supplies of humanitarian aid through the crossing points, such as food, medical supplies and fuel.
  • Coordination of evacuations and other humanitarian movements within the Gaza Strip and between Gaza and Israel.
  • Unilateral suspensions of military operations to enable re-supply of the population and humanitarian relief activities.
  • Ensuring the functioning of essential infrastructure in the Gaza Strip.
267 A central aspect of the IDF humanitarian effort was coordination with the various humanitarian agencies and organisations.  Humanitarian facilities were marked on IDF operational maps and aerial photographs according to information provided by the various organisations in advance.  Furthermore, a joint coordination map was prepared, to create a common language for the IDF and the international organisations operating in Gaza. 268 On 23 December 2008, on the eve of the operation in Gaza, the Ministry of Foreign Affairs held a specific meeting with representatives of the ICRC and other organisations in order to establish clear channels of cooperation, and to ensure the continuing flow of humanitarian supply and medical assistance to Gaza during the operation.  In addition, immediately upon the commencement of the Gaza Operation, the then Foreign Minister, Tzipi Livni, held a special high level meeting with representatives of ICRC, United Nations Truce Supervision Organization (“UNTSO”), UNRWA, United States Agency for International Development (“USAID”), World Food Program (“WFP”) and the EU, in order to assess the needs of these organisations for the benefit of the civilian population in Gaza.  Furthermore, as discussed below, a Humanitarian Coordinating cell was established during the operation in Gaza, providing real-time assistance and coordination to international organisations vis-a-vis the IDF and the Israeli authorities. 269 During the Gaza Operation itself, the Gaza Coordination and Liaison Administration (“CLA”) operated a 24 hour operations room tasked with communicating with the IDF and international organisations to deal with real time problems and requests.  The CLA coordinated close to 500 movements of international organisations’ vehicles and convoys during the operation.  In addition, a special Humanitarian Coordination Centre (“HCC”) was established for enhanced coordination with representatives of the international organisations working in Gaza.  Representatives of the United Nations Office for the Coordination of Humanitarian Affairs (“OCHA”), UNRWA, ICRC, WFP and other international organisations met on a daily basis with IDF representatives to coordinate the entry of humanitarian aid into Gaza.  There were 120 humanitarian support and liaison officers, trained in advance and deployed at all levels of field command, in order to manage implementation of the humanitarian coordination and to serve as advisers to the military commanders on humanitarian and coordination issues. 270 The IDF maintained communication with the Civil Affairs Committee of the Palestinian Authority as well as with members of the Palestinian private sector to coordinate supplies of goods and humanitarian assistance.  In addition, the IDF maintained contact with the Palestinian Electricity, Water and Sewage and Communications Authorities in Ramallah and their crews in Gaza, in order to coordinate the functioning of essential utilities during the Gaza Operation. 271 A total of 1,511 trucks carrying 37,162 tons of supplies entered the Gaza Strip from Israel through the Kerem Shalom and Karni crossings from the commencement of the Gaza Operation and for its duration, as detailed below:
Kerem Shalom Crossing Humanitarian Supplies

Item

No of Trucks

Tons

Flour   

525

14,208

Rice

50

1,283

Sugar

77

2,356

Oil

56

1,308

Dairy Products

64

1,117

Legumes

15

477

Animal Feed

119

3,495

Medicines and Medical Equipment

119

1,038

Blankets

24

160

Other

364

7,824

Total

1,413

33,266

Karni Crossing Humanitarian Supplies

Item

No of Trucks

Tons

Animal Feed

41

1,638

Corn

4

162

Soya

1

37

Wheat

50

1,975

Barley

2

84

Total

98

3,896

Transfers of Fuels and Gas to Gaza

Diesel for Gaza Power Station

1,535,750 litres

Diesel for Transport to UNRWA

188,000 litres

Diesel for Transport

96,000 litres

Diesel to UNRWA

282, 000 litres

Cooking Gas

234 tons

Diesel for Heating

1,711,000 litres

272

The IDF coordinated the entry of 706 trucks carrying donations from international organisations and various countries as follows:

  • UNRWA – 10; WFP – 25; United Nations Children’s Fund (“UNICEF”) – ’9; Médecins Sans Frontières (“MSF”) – 1; Médecins Du Monde (”MDM”) – 1; Other Organisations – 7; JHCO  – 116; Egypt – 43; Turkey – 16; Greece – 2; Italy – 1
273

The IDF coordinated the entry of consignments of medical supplies received from various sources during the Gaza Operation as follows:

  • UNRWA – 5,606; WFP – 3,611; ICRC – 327; World Health Organisation (“WHO”) – 300; UNICEF’ – 166; MDM  – 6; MSF – 2; JHCO – 2538; Egypt – 1183; Turkey – 273; Greece – 26; Italy – 17; Other – 58
274

In addition, a special medical coordination centre was set up in the Gaza District CLA, under an officer with the rank of Major, which dealt with assistance to civilians in danger and with evacuation of the wounded and dead from areas of hostilities.  This medical situation room coordinated 150 different requests during the Gaza Operation, and all professional decisions were made by a medical doctor.  As part of these efforts, the following measures were taken:

  • 382 wounded Palestinians were extracted from areas of hostilities.
  • 1,150 Palestinian civilians were evacuated from areas of hostilities.
  • 68 chronically ill patients left Gaza via Erez Crossing for treatment in Israel/Jordan.
  • A field clinic was set up at the Erez Crossing.
  • 20 ambulances entered Gaza from Israel – donations from Turkey and Jordan and reinforcements from Red Crescent in West Bank (10 additional ambulances were brought in by the Red Cross after the operation).
  • 37 international aid workers and medical personnel entered Gaza via the Erez Crossing.
  • 17 fire engines were sent to deal with fires.
  • Coordination of passage from North to South within the Gaza Strip of 500 trucks and 131 ambulances.
  • In addition, several hundred humanitarian journeys were made between Egypt and Gaza through the Rafah crossing including the entry to Gaza of 25 ambulances.
275

The IDF also set up and manned (24 hours a day, 7 days a week) an Infrastructure Coordination Centre to monitor the situation in Gaza, identify needs and coordinate repairs to infrastructure in areas of hostilities.  This centre handled the following matters:

  • 38 infrastructure repairs were carried out by technicians in areas of hostilities.
  • Direct communication was maintained between the Palestinian Energy Authority and the Israel Electric Corporation to identify problems and fix them as soon as possible, including at risk to lives of Israeli technicians.  Although several of the power lines supplying electricity from Israel to Gaza were damaged in the fighting, as of 15 January 2009, nine of the ten lines were operational.
  • The two power lines bringing electricity from Egypt into Gaza were operational.
  • During the operation, substantial amounts of industrial diesel for the Gaza power station were transferred into Gaza from Israel.  The amount of diesel was reduced after an explosive tunnel was discovered near the Nahal-Oz fuel terminal.  However, in spite of the risk, the supply of industrial diesel was renewed through the Kerem Shalom crossing.
  • In addition, 200,000 litres of automotive diesel, 234 tons of cooking gas, hygiene and water purification kits and water bottles were brought into Gaza from Israel.
276 Finally, beginning 7 January 2009, the IDF unilaterally suspended military operations for at least three hours each day (“humanitarian pauses”), to enable re-supply of the population and other humanitarian relief activities.  As discussed in Section V.B(7) above, while the IDF carefully observed the humanitarian pauses, Hamas abused them to launch rockets and fire mortars into Israel.  During the period between 8 and 17 January 2009, Hamas fired a total of 44 rockets and mortars at Israel during humanitarian pauses.  277 Naturally, humanitarian efforts during active warfare and hostilities can always be improved.  Civilian populations inevitably and tragically suffer during a time of armed combat, particularly where the combat operations take place in densely populated urban areas.  This is further exacerbated when the humanitarian efforts of one party are impeded by the activities of the other party, which wishes to create a humanitarian crisis.  It is important to understand that, in contrast to Hamas’ actions which jeopardised the civilian populations of Gaza and obstructed the distribution of humanitarian supplies, Israel put into place significant systems and resources to try to ensure that the humanitarian needs of the civilian population were met. 278 IDF’s efforts to comply with its humanitarian obligations during the Gaza Operation were reviewed by the High Court of Justice while the operation was still going on.  Two petitions,(226) submitted and heard during the heat of battle, further illustrate the legal scrutiny of IDF’s activities by the High Court of justice even during active fighting.  As stated by the President of the Court, the Hon. Judge Beinisch:  

“Cases in which the court examines the legality of military operations while they are happening are not uncommon occurrences, in view of the reality of our lives in which we are constantly confronting terrorism that is directed against the civilian population of Israel, and in view of the need to respond to it while discharging the duties imposed by law even in times of combat. … [I]t is the role of the court, even in times of combat, to determine whether within the framework of the combat operations the obligation to act in accordance with legal guidelines — both within the context of Israeli law and within the context of international humanitarian law — is being upheld.”(227)

279 The petitions were filed on 7 January 2009 and 9 January 2009.  The petition in HCJ 201/09 claimed that there were delays in evacuating the wounded to hospitals in the Gaza Strip, and claimed that ambulances and medical personnel were being attacked by the IDF.  The petition in HCJ 248/09 related to the shortage of electricity in the Gaza Strip, which it was claimed, prevented effective functioning of hospitals, clinics, water and sewage systems.  The petitioners argued that this situation was the result of IDF actions during the Gaza operation. 280 After hearing the petitioners’ claims, as well as requesting and receiving detailed responses from the IDF with regard to the various humanitarian concerns that were raised, the Court denied both petitions.  It found that “[i]t was made clear to [the Court] that the IDF and the high-level command authorities acting on its behalf are aware of and prepared to carry out their humanitarian obligations.”(228) 281 In particular, with regard to the first petition the Court held as follows:  

“In view of the establishment and enhancement of the humanitarian mechanisms, which it may be assumed will prove their effectiveness, in view of the statement made to us that a serious effort will be made to improve the evacuation and treatment of the wounded, in view of the setting up of a clinic in the vicinity of the Erez crossing (and to the extent that the Palestinian side will also agree to the transfer of the wounded to Israel for treatment), it is to be hoped that the humanitarian mechanisms will operate properly in accordance with the obligations of the State of Israel.  In these circumstances, we see no further reason to grant relief in the form of an order nisi at this time.”(229)

282 The Court reached a similar conclusion in the second case:  

“It can be seen that steps have been taken in order to repair the faults in the electricity network in the Gaza Strip, and despite the state of combat and the security risks, efforts have been made to facilitate the entry into the Gaza Strip of industrial diesel oil for operating the local power station in Gaza, as well as additional humanitarian requirements, such as cooking gas, diesel oil for transport, water, food and medications.  In these circumstances, this petition should also be denied.”(230)


(5) Israel’s System for Investigating Complaints

  283

As discussed above in Section V.C, Israel employs extensive training to try to ensure awareness and compliance by its commanders and soldiers with international law and domestic norms and laws, issues appropriate rules of engagement, plans military operations carefully to ensure that only legitimate military objectives are targeted, and implements in the field extensive precautions designed to minimise civilian harm to the extent feasible.  Equally important, Israel is committed to fully investigating alleged violations of Israel’s legal obligations (including the Law of Armed Conflict), and to taking appropriate and effective action, including penalising IDF commanders or soldiers found to have committed offences.  Numerous outside observers, including most recently the National Criminal Court of Appeals of Spain, have confirmed the thoroughness of Israel’s system for investigating such allegations, which is on par with the investigatory systems of many other countries.  Israel has already activated this system with respect to the recent operations in Gaza, and as discussed in Section V.D(1) below, investigations are now underway.  The integrity of these investigations must be maintained and they should be permitted to run their course, without prejudgment of the results.

(a) The Military Justice System

  284 Israel’s legal and judicial apparatus is fully equipped and motivated to address alleged violations of national or international law by its commanders and soldiers.  Such allegations are reviewed through a multi-tiered system of independent and impartial proceedings before Israeli investigative, administrative and judicial authorities, including Israel’s highest judicial instance, the Israeli Supreme Court.  285 Israel has a military justice system that operates within the IDF but is professionally independent.  The military justice system is based primarily on the Military Justice Law of 1955, a comprehensive statute which governs the investigation of misconduct and indictment and prosecution of offenders and establishes the Court Martial system.  The military justice system empowers the Military Advocate General to try soldiers not only for unique “military” offences (such as absence without leave, conduct unbecoming an officer, etc), but also for ordinary criminal offences under Israel’s Penal Law, 1973.  Any and all allegations regarding offences committed by IDF personnel, and related to the military, are dealt with through this multi-tiered system, including allegations regarding improper conduct on the battlefield. 286 The IDF system of review includes three main components: the Military Police Criminal Investigation Division (“MPCID”), the Military Advocate General’s Corps (“MAG”), and the Military Courts.  The MAG Corps and Military Courts are both independent from the IDF command hierarchy, are subject only to the law, and are also entirely independent from one another. 287 According to Article 177 of the Military Justice Law, the Military Advocate General is appointed by the Minister of Defence, by recommendation of the Chief of the General Staff of the Israel Defence Forces.  The appointment of the MAG by the Minister of Defence and not by the Chief of the General Staff, (as is the case with other officers in the IDF), is intended to preserve the MAG’s professional independence, in executing his authorities.  The MAG’s powers and authority are in accordance with the Military Justice Law, IDF standing orders (Supreme Command Order 2.0613) clearly state that in executing his powers and authority, the MAG is subject only to the law, and is not subject to the IDF chain of command.  On professional matters, the MAG is guided by the Attorney General. 288 Israel is an open and democratic society which fully respects the freedom of speech, an independent and free press and an active community of non-governmental and international organisations that operate in and from Israel.  In this context, information on possible misconduct of soldiers reaches the IDF authorities in various ways, including complaints by the victims themselves or family members; complaints by commanders or soldiers who witnessed an incident; complaints by human rights organisations, journalists, embassies, or international bodies; and complaints forwarded to or filed directly with the MAG by the Israel Police and other law enforcement agencies.  Any person may file a complaint with the Military Police in reference to misconduct by IDF personnel at any civilian police station in the country.  Gaza residents can file complaints directly in writing through a NGO acting on their behalf or via the liaison mechanism that works vis-à-vis the Palestinian civilian population. 289 Generally, the MPCID investigates allegations of criminal offences committed by soldiers.  Investigations dealing with complaints of misconduct by soldiers towards Palestinians (including with respect to events in Gaza) are conducted with the assistance of Arabic-speaking interpreters, who participate in and accompany interviews of Palestinian complainants and witnesses.  Criminal investigators handling complaints by Palestinians undergo special training to equip them for dealing with these types of cases.  When necessary, consultations are held with a Military Prosecutor from the MAG Corps regarding the proper handling of the case.  290 Where circumstances do not necessarily point to a criminal offence, the Military Advocate General will first review the findings of a “field investigation” — an inquiry conducted by the chain of command following operational activity, and governed by the Military Justice Law.  Under the law and IDF standing orders, the findings of “field investigations” are relayed to the MAG for review, as well as any other available evidence (including information collected by NGOs), to assist him in deciding whether to order a criminal investigation.  If after examining the aforementioned material, the MAG believes the facts indicate a reasonable suspicion that an offence may have been committed, which justifies the opening of a criminal investigation, he will launch a full a criminal investigation of the incident. 291 It is the common practice of the IDF that, following every military operation of any kind, a field investigation is conducted in order to examine the performance of the forces and to learn what aspects should be preserved and what aspects should be improved.  The IDF conducts such field investigations on its own initiative, regardless of whether a complaint has been submitted.  With regard to certain categories of cases, the IDF field commanders are under a duty to initiate and conduct specific field investigations, which are separate from the general field investigation of the operation as a whole.  Such a duty exists with regards to cases that involve serious violations of the Laws of Armed Conflict, including when there are reliable reports on such cases by victims, witnesses, NGOs or the media. 292 As mentioned above, the Military Advocate General is entitled — and in some circumstances even obliged — to review the findings of such field investigations, and can, if the findings justify, order a full criminal investigation into the incident. 293 The authority to prosecute soldiers for offences connected to their military service lies with the MAG Corps.  In cases where sufficient evidence has been collected according to the requirements of Israeli Penal Law, indictments are filed in the Military Courts.  In the period from January 2002 through December 2008, 1,467 criminal investigations have been opened into alleged misconduct by soldiers, leading to the issuance of 140 indictments against soldiers regarding crimes committed against the Palestinian population.  Of these indictments, as of December 2008, 103 defendants were convicted and ten cases are still pending.  During the first six months of 2009, 123 criminal investigations were opened, with ten of them leading to indictments. 294 A significant development in the investigation of alleged wrongdoing by IDF soldiers was the establishment, in October 2007, of the Office of the Military Advocate for Operational Affairs.  This office is charged with investigating cases of operational misconduct by IDF soldiers against Palestinian civilians, such as mistreatment of prisoners, pillaging or theft, use of unnecessary force, abuse of authority etc.  This special military prosecution unit was established and funded to enable the Military Prosecution to deal effectively and efficiently with these offences, in light of their importance and the added value of expertise gained by transferring these cases from regional offices of the prosecution to a special unit dedicated to their investigation.  It also allows the automatic opening of criminal investigations in all such cases, on the premise that these specific crimes can never be justified by military necessity.  295 The effectiveness of the Office of the Military Advocate for Operational affairs, as well as the other measures taken by the IDF to eradicate any kind of misconduct towards Palestinians (including command and educational activities, which increased the number of cases reported by soldiers), is evident, as the number of investigations launched against soldiers has roughly doubled. 
Criminal Investigations Launched
Related to Palestinian Civilians

 

2002

2003

2004

2005

2006

2007

2008

Crimes of Violence

52

75

104

109

96

223

211

Crimes related to Death of Civilians

17

17

22

15

19

54

18

Crimes of Property

82

54

63

31

37

74

94

Total

151

146

189

155

152

351*

323*

296 As a general rule, the rules of evidence in the military legal courts system of the IDF are similar to the rules of evidence in Israeli criminal courts.  When there is sufficient evidence to establish a reasonable basis for conviction of a soldier, an indictment may be filed against the soldier.  The Military Prosecution is obligated to carefully examine the evidence and may only file an indictment when the evidence justifies doing so.  Moreover, in addition to the challenges that prosecutors face to meet the high evidentiary standard in criminal law cases, IDF’s military prosecutors face additional unique challenges due to the lack or partial cooperation of the complainants and/or of the Palestinian Authority.  Another substantial difficulty in obtaining and securing physical evidence at the place of the commission of an alleged crime stems from security risks as well as active combat in the area.  297

As a general policy, the Military Prosecution seeks substantial sentences in cases of offences against the Palestinian civilian population and in appropriate cases appeals lenient sentences to the Military Court of Appeals.  Traditionally, however, the Military Courts deal sternly with soldiers convicted of offences against civilians.  The gravity attached by the Military Courts to offences against civilians is illustrated in the following excerpt from the Court’s judgment in C/62/03 Military Prosecutor v. Sgt Ilin, involving a case of looting and improper conduct:
“A soldier committing prohibited acts during armed conflict inflicts injury upon the human dignity of the conquered as well as upon the humanity of the conqueror…  It is clear therefore that the thunder of war and the heat of the battle actually demand reinforcement and amplification of the voice of morality….”

(b) Attorney General Review of Decisions of the Military Advocate General

  298

The decisions of the Military Advocate General regarding the opening or non-opening of criminal investigations, as well as his decisions regarding the filing or non-filing of indictments, may be subject to further review by the Attorney General of the State of Israel, an independent figure of high authority.  A complainant or non-governmental organisation may trigger the review of the Attorney General by simply sending a letter directly to the Attorney General, requesting further review of the matter.

299

With regard to the recent military operation in Gaza, it was decided that all findings of the five major field investigations, detailed in Section V.D(1) and the Military Advocate General decisions with regard to them be transferred for review by the Attorney General.

(c) Supreme Court of Israel Judicial Review of Decisions of the Military Advocate and Attorney General

  300 In addition to review by the Military Advocate General and the Attorney General, complainants or non-governmental organisations who are dissatisfied with a decision of the Military Advocate General or of the Attorney General – including decisions with regard to whether to open a criminal investigation, or whether charges filed reflected the severity of the alleged crime, may file a petition directly to Israel’s Supreme Court. 301 The Supreme Court regularly reviews determinations of the Military Advocate General and the Attorney General on these issues.  For example, in one case the Supreme Court intervened in the Military Advocate’s decision not to file criminal charges against a high ranking field commander, resulting in the filing of such charges and ultimately in the conviction of the commander according to Israeli Penal law.(231)  In another case, during the course of Supreme Court hearings, the Military Advocate General consented to open a military investigation into an incident for which investigation had not previously been conducted.(232)  Just this month, on 1 July 2009, the Supreme Court intervened in a Military Advocate General decision to indict a soldier and a commander for the offence of “unbecoming conduct” under the Military Justice Law, in connection with the alleged firing of a rubber bullet at the feet of a detainee.(233) Following the judgment, the MAG issued an amended indictment, charging the commander and the soldiers involved in the incidents with more serious offences.(234) 302 The scope of judicial review of Israel’s Supreme Court is very broad.  According to the jurisprudence and practice of the Israeli Supreme Court, any interested party (including non-governmental organisations) or any person (including those who are neither Israeli citizens nor residents) who is affected or potentially affected by the actions ofthe government is entitled to directly petition the Israeli Supreme Court on any claim that a government action or an action of the IDF is ultra vires, unlawful or substantially unreasonable, including, inter alia, actions relating to the IDF military activity.  In fact, in the year 2008 alone, over 2,000 petitions were filed to Israel’s Supreme Court.  The Supreme Court rules as a matter of routine on such petitions,and when justified, issues injunctions against the Government, or other relief asappropriate.  Consequently, petitions are brought on a regular basis by Palestinianresidents, as well as NGOs or persons representing their interests claiming that they have been harmed by actions taken by theIsraeli security forces, including operational activities in the West Bank and the Gaza Strip. 303 The Israeli Supreme Court has declared that the situation Israel faces as the target of terrorist attacks does not lessen the obligation of the State and its security forces to abide by applicable law and humanitarian standards.  To the contrary, the Court has issued dozens of decisions addressing the issue of fighting terrorism within the law.(235)  As mentioned above, during the height of the military operation in Gaza, the Supreme Court agreed to hear petitions by NGOs alleging delays in evacuating the wounded, shortage of electricity in the Gaza Strip, and other complaints about humanitarian issues purportedly resulting from IDF actions.  The Court stated that it would hear the case immediately, while battles in Gaza were still raging, as it “endeavours to examine the claims in real time, so that it may grant effective relief or arrive at an agreed settlement.”(236) 304 Israel’s Supreme Court has earned international respect and recognition for its jurisprudence, as well as for its independence, for actions it has taken in this regard.  Its landmark rulings in several cases related to the balancing of security and the protection of individuals are well regarded by jurists and academic scholars of international law, and have been cited favourably by foreign courts, including the Supreme Court of Canada, the House of Lords in the United Kingdom, and the European Court of Justice.(237)  One United States court specifically rejected an argument that Israeli courts could not independently judge claims involving “serious charges … against high officials of the Israeli government,” noting that “Israeli courts are entirely capable of making judgments displeasing to those in high civil or military authority.”(238)

305

The effectiveness of Israel’s own systems for investigating complaints regarding combat activities which allegedly contradicted international law was recognised most recently by the Criminal Chamber of the National Court of Spain (Audiencia Nacional), which decided on 30 June 2009 by a wide margin (14-4) — and in a written decision issued on 17 July 2009 — to discontinue a Spanish investigation into alleged war crimes in the Gaza Strip.  The proceedings concerned a 2002 incident in the Gaza Strip, where the Israeli Air Force targeted Saleh Shehadeh, the head of Hamas’ military wing, killing Shehadeh but also a number of civilians.  A Spanish judge had opened an inquiry into the matter pursuant to Spain’s Universal Jurisdiction statute. 306 The Criminal Chamber of the National Court of Spain emphasised Israel’s ability to fully and fairly investigate the charges itself.  It held that Israeli procedures and decisions with regard to the legality of preventive strikes under international law, and the military, civilian and judicial review in Israel of the Shehadeh incident, comport with the principle of complementarity, as the State of Israel is a democratic country where the rule of law applies.  The Court stated that:  

“Furthermore, disputing the impartiality and organic and functional separation from the Executive of the Israeli Military Advocate General, the Attorney General of the State of Israel and the Investigation Commission appointed by the Israeli Government involves ignoring the existence of a social and democratic state with rule of law, where the members of the Executive and the Judiciary in question are subject to the rule of law.  On the basis of those premises, there can be no doubt whatsoever with regard to the exercise of pertinent criminal actions in the event that the existence of any criminally relevant conduct on the part of the individuals who ordered, planned and carried out the bomb attack should come to light in the course of the investigations performed.”(239)

(d) Comparisons with Other Investigatory Systems

  307 Israel’s system for investigating alleged violations of Law of Armed Conflict compares well with the rule of law of other democratic States.  To respond to alleged violations of the Law of Armed Conflict other countries also rely on a combination of military, criminal, and administrative investigations.(240)  Likewise, criminal investigations in several other countries are conducted through a courts-martial system similar to that in place in Israel.(241) 308 For example, the United Kingdom has used both criminal investigations and independent investigations within the military to examine allegations of violations of the Law of Armed Conflict.(242)  In the United Kingdom, allegations of violations within the Army are forwarded to the Army Prosecuting Authority (“APA”).(243)  The Director of Army Legal Services, who is appointed by the Queen, “has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts-martial, the Standing Civilian Court and the Summary Appeal Court and for Appeals before the Courts-Martial Appeal Court and the House of Lords.”(244)  The Director of Army Legal Services delegates these decision-making functions to “ALS officers appointed as prosecutors in the APA.”(245)  As is the case in Israel, “[t]he APA is under the general superintendence of the Attorney-General and is, rightly, independent of the Army Chain of Command.”(246)  In addition to criminal investigations, the military in the United Kingdom also investigates allegations of violations of the Law of Armed Conflict through administrative actions, independent informal investigations, or through independent formal investigations ordered by a Board of Inquiry.(247)  309 Similarly, the procedures and institutions of the United States for such investigations, for example, are quite similar to those in Israel.  To respond to alleged violations of the Law of Armed Conflict, the United States established comprehensive investigation procedures, which grants multiple actors within the Department of Defense and the military branches independent authority to order an investigation.(248)  Specifically, the investigatory procedures in the United States follow the same practice as in Israel, providing that when there is a “reportable incident”(249) involving the Law of Armed Conflict, the appropriate field commander has the duty to report the incident up the chain of command immediately.(250)  The report then both moves up the chain of command to the relevant Commander of the Combatant Command, and goes to the appropriate military investigation agency to determine whether to initiate a criminal investigation, as well as to the General Counsel of the Department of Defense.(251)  310 Criminal procedures in the United States system are conducted through a courts-martial system similar to that in place in Israel.  Military prosecutors are required to be free from command influence, although as a matter of structure they are subordinate to the field commanders, unlike in Israel.  In addition, in Israel the legal adviser has the authority to order criminal investigations and to prosecute soldiers, while in the United States, the “Convening Authority”(252) has jurisdiction to refer cases to a Court-martial for trial and to approve, modify, or disapprove the findings and sentences in Court-martial proceedings, and Judge-Advocates in the United States may only advise the Convening Authority.(253)  The U.S. system does not provide for independent judicial review of the decision to commence or not commence a criminal proceeding, as exists in Israel.(254)  311 While the U.K. and U.S. systems may not have the full panoply of independent investigatory and review mechanisms the Israeli system has, they nonetheless have been accepted as more than sufficient to investigate alleged abuses on their own.(255)  As discussed above, this was the basis on which the National Court of Spain recently discontinued an investigation regarding a 2002 incident in Gaza: the Israeli system is independent and impartial, and is fully capable of investigating the matter on its own.        
FOOTNOTES
(196) Israel Defence Forces, Spirit of the IDF, available at

(197) See, e.g., Canada:  Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual B-GJ-005-104/FP-021 § 1503-04, 13 August 2001, available at

dgfda/Pubs/CF%20Joint%20Doctrine%20Publications/
CF%20Joint%20Doctrine%20-%20B-GJ-005-104%20FP-
021%20-%20LOAC%20-%20EN%20(13%20Aug%2001).pdf (Canadian manual noting the Law of Armed Conflict must be included in military instruction programs and that commanders have a responsibility to ensure the forces under their command “are aware of their responsibilities related to the LOAC and they behave in a manner consistent with the LOAC”); NATO:  Are Rannem Johansen, The Final Exam, Joint Warfare Centre Media Center, 17 June 2004, available at (describing a training program in the Law of Armed Conflict provided to NATO forces); United States:  IC-1 to U.S. Air Force Directive 51-401, Training and Reporting to Ensure Compliance with the Law of Armed Conflict ¶ 3.1 (17 December 2008) (requiring computer based training in the Law of Armed Conflict 90 days before being deployed); U.S. Air Force Policy Directive 51-4, Compliance With the Law of Armed Conflict ¶ 5.1 (16 April 1993) (requiring all members of the U.S. Air Force to receive instruction on the Law of Armed Conflict); Other Examples:  News Release, Switzerland:  Senior Officers From 60 Countries Work On Integrating International Humanitarian Law into Military Operations, ICRC, 6 August 2007, available at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/
promoting-ihl-news-060807 (describing the efforts of 60 European, American, African, Asian and Middle Eastern countries to integrate training of the Law of Armed Conflict into their military forces).

(198) See Col. Jody M. Prescott, The Development of NATO EBAO Doctrine:  Clausewitz’s Theories and the Role of Law in an Evolving Approach to Operations, 27 Penn. St. Int’l L. Rev. 125, 162 (2008) (“Many nations have developed complex and realistic situational training programs for soldiers that challenge them to apply what they have learned about the law of armed conflict in simulations involving living role players.”); Col. Jody M. Prescott, Training in the Law of Armed Conflict — A NATO Perspective, 7 J. Mil. Ethics 66, 68-71 (2008) (describing NATO training in the Law of Armed Conflict).

(199) See International Security Assistance Force, Tactical Directive (30 December 2008) ¶ 4(a). 

(200) Id. ¶ 4(c). 

(201) International Security Assistance Force, Tactical Directive (6 July 2009).

(202) Id.

(203) See United StatesU.S. Chairman of the Joint Chiefs of Staff Instruction (“CJCSI”) 5810.01C ¶ 4(b) (29 January 2008) (providing that “[a]t all appropriate levels of command and during all stages of operational planning and execution of joint and combined operations, legal advisors will provide advice concerning law of war compliance”); Canada:  Canadian Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual B-GJ-005-104/FP-021 § 1505 (10 June 2005), available at
dgfda/Pubs/CF%20Joint%20Doctrine%20Publications/
CF%20Joint%20Doctrine%20-%20B-GJ-005-104%20FP
-021%20-%20LOAC%20-%20EN%20(13%20Aug%2001).pdf  

(“Canada has the obligation to ensure that legal advisors are available to advise military commanders on the application of the LOAC and the appropriate instruction to be given to the CF.  Legal officers from within the Office of the Judge Advocate General fulfill this mandate.”); see generally Rear Adm. Michael F. Lohr et al., Legal Support in War:  The Role of Military Lawyers, 4 Chi. J. Int’l Law 465 (2003) (describing the role of the U.S. Judge-Advocates with respect to the Law of Armed Conflict); Brig. Gen. Jerry S.T. Pitzul, Operational Law and the Legal Professional:  A Canadian Perspective, 51 Air Force L. Rev. 311 (2001) (describing the role of the Canadian Forces Judge-Advocates with respect to the Law of Armed Conflict). 

(204) UK Ministry of Defence, The Manual of the Law of Armed Conflict 413 n.16 (1996).

(205) See Aitken Report, An Investigation into Case of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004 ¶ 28 (25 January 2008) (describing the role of the Service Prosecuting Authority in the United Kingdom and its level of independence from the military hierarchy); David McNaim, The Canadian Forces’ Criminal Law Firm:  A Blueprint for Independence, 8 Can. Crim. L. Rev. 329 (2004) (describing the institutional changes made in Canada to give its lawyers more independence from the chain of command).

(206) The absolute prohibitions included plunder, starvation of the population, poisoning of water resources, torture, rape, the taking of hostages and the use of civilians as human shields, destruction of private property other than for military necessity, and perfidy.

(207) Military targets were defined in terms similar to those used in Additional Protocol I, art. 52(2).

(208) Adalah – The Legal Center for Arab Minority Rights in Israel et. al. v. GOC Central Command, IDF, et. al., HCJ 3799/02  (6  October 2005).

(209) Intelligence and Terrorism Information Center, video available at
tkifot_af_eng.htm.

(210) See, e.g., The Handbook of Humanitarian Law in Armed Conflicts 307 (Dieter Fleck and Michael Bothe, eds., Oxford University Press 1995) (“Along with the combatant status attained through the incorporation into the armed forces, these (police) forces also become a military target (as defined by art. 52, ¶ 2 API) and are therefore subject to armed attacks by the opposing party to the conflict just like any other unit in the armed forces.”)

(211) Richard Boudreaux, Abbas outlaws Hamas’ paramilitary Executive Force, The Boston Globe, 7 January 2007, available at
articles/2007/01/07/
abbas_outlaws_hamass_paramilitary_executive_force/.

(212) International Middle East Media Center, Interview with the leader of the Hamas-formed Executive Force, Palestine Newspaper, 17 August 2007, available at
http://www.imemc.org/article/49939.

(213) Intelligence and Terrorism Information Center, Mounting evidence indicates that during Operation Cast Lead (and in ordinary times) members of Hamas’ internal security forces served as commanders and operatives in Hamas’ military wing (Izz al-Din al-Qassam Brigades), 24 March 2009, available at
html/hamas_e067.htm.

(214) Intelligence and Terrorism Information Center, Hamas Military Buildup in the Gaza Strip, April 2008, available at

Israel-and-Palestinian-territories/
Hamas-Military-Strength-April-2008.

(215) Intelligence and Terrorism Information Center, Mounting evidence indicates that during Operation Cast Lead (and in ordinary times) members of Hamas’ internal security forces served as commanders and operatives in Hamas’ military wing (Izz al-Din al-Qassam Brigades), 24 March 2009, available at
hamas_e067.htm.

(216) Id.

(217) Id.

(218) Id.

(219) Jonathan Dahoah-Halevi, Fatal Casualties of the Palestinian Security Forces — Myth vs. Reality (24 May 2009), available in Hebrew at

showpage.asp?FID=594&DBID=1&LNGID=
2&TMID=99&IID=22712.

(220) As British Colonel (ret.) Richard Kemp commented on the BBC, “I don’t think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.”  BBC: Former British Army Colonel Richard Kemp Discusses IDF Gaza Ops, 18 January 2009, available at http://www.youtube.com/watch?v=WssrKJ3Iqcw.

(221) 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/.

(222) Id.

(223) 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
Satellite?pagename=JPost/
JPArticle/ShowFull&cid=1231424936164.

(224) For example, residents of Rafah were provided with a general leaflet, stating that “[t]he IDF is conducting operations against groups who are engaged in acts of terrorism against the State of Israel.  The IDF will strike and destroy any location or building containing weapons, ammunition or a tunnel.  As of the distribution of this notice, the life of anyone present in a building containing weapons, ammunition or a tunnel is in danger and he should leave the location immediately for his own and his family’s safety!”

(225) The text of the Sajaiya leaflet was as follows:

To the Residents of the Sajaiya Neighbourhood
The IDF continues to intensify its operations against Hamas terrorism and will attack any location in the Gaza Strip where terrorist operatives, tunnels or weapons are to be found. All residents of the Sajaiya Neighbourhood must leave their homes and move towards the Old City to the other side of Salah A’Din Road, with effect as of the distribution of this leaflet and by no later than 6 hours after the distribution of this leaflet.

These instructions are in force until further notice. Adherence to IDF instructions has prevented unnecessary casualties in the past.

Please continue to follow IDF instructions for your own safety.

IDF Command

(226) Physicians for Human Rights et. al. v. The Prime Minister et. al., HCJ 201/09 and HCJ 248/09, 19 January 2009, available at
09002010.n07.pdf.

(227) Id. at ¶ 12.

(228) Id. at ¶ 28.

(229)Id. at ¶.23

(230)Id. at ¶ 26

(231) See Jamal Abed al Kader Mahmoud Zofnan et al. v. Military Advocate General, HCJ 425/89 (1989). In other cases, after careful scrutiny of the evidence, the Supreme Court found the MAG decision not to file charges reasonable. See, e.g., Iman Atrash v. Military Advocate General, HCJ 10682/06 (2007).

(232) See Brian Avery v. Military Advocate General, HCJ 11343/04 (2005).

(233) Ashraf Abu Rahma et al. v. Military Advocate General, HCJ 7195/08 (1 July 2009) (“The military justice system, which is in charge of implementing the IDF’s values of conduct, must send out a determined message of consistent and decisive defence of the basic values of the society and the army, and of uncompromising enforcement in all levels — educational, commanding authority and punitive — of the fundamental principles that are shared by the Israeli society and the Israeli army and give them their ethical and humane character.”).

(234) The amended indictment included the charging of the commander with the offence of threats under Section 192 of Israel’s Penal Law; and the soldier was charged with the crime of illegal use of a firearm in accordance with Section 85 of the Military Justice Law.  Both were charged with the offence of conduct unbecoming an officer.  The case is pending in the military court.

(235) Official English translations of over twenty five cases which address this issue are available at the website of Israel’s Supreme Court, http://elyon1.court.gov.il/VerdictsSearch/
EnglishStaticVerdicts.html. 
See, e.g., Public Committee Against Torture in Israel v. The State of Israel et. al., HCJ 5100/94   (6 September 1999); Iad Ashak Mahmud Marab et. al. v. IDF Commander in the West Bank, HCJ 3239/02 (6 February 2003); Beit Sourik Village Council et. al. v. The Government of Israel et. al., HCJ 2056/04 (30 June 2004); Zaharan Yunis Muhammad Mara’aba et. al. v. The Prime Minister of Israel et. al., HCJ 7957/04 (15  September 2005) ;  Ahmad Issa Abdalla Yassin, Bil’in Village Council Chairman v. The Government of Israel et. al., HCJ 8414/05 (15 December  2008  ; The Public Committee Against Torture in Israel et. al. v. The Government of Israel et. al., HCJ 769/02 (14 December 2006); Adalah – The Legal Center for Arab Minority Rights in Israel et. al. v. GOC Central Command, IDF, et. al., HCJ 3799/02 (6  October 2005).

(236) Physicians for Human Rights et. al. v. The Prime Minister et. al., HCJ 201/09 and HCJ 248/09, ¶ 13 (19 January 2009), available at
09002010.n07.pdf.  As discussed above in Section V.C(4)(c), after full public hearings and review of the available facts, the Court determined that the IDF and high level command authorities were aware of their humanitarian obligations and were making efforts to fulfill their duties according to international law.

(237) See, e.g., Application Under S. 83.28 of the Criminal Code, 2004 SCC 42, ¶ 7 (Supreme Court of Canada 2004) (citing the “eloquent” statements of Israel’s Supreme Court on the importance of responding to terrorism within the rule of law); A and others v. Secretary of State for the Home Department, 2 A.C. 221, ¶ 150 (U.K. House of Lords 2005) (emphasizing importance of the U.K.’s “retain[ing] the moral high ground which an open democratic society enjoys,” and thereby “uphold[ing] the values encapsulated in the judgment of the Supreme Court of Israel in Public Committee Against Torture in Israel v. Israel . . . [that] ‘[a]lthough a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand, ”) (citation omitted); Kadi v. Council of the European Union, 3 C.M.L.R. 41, ¶ AG 45 (European Court of Justice 2008) (quoting Supreme Court of Israel regarding importance of judicial oversight of political decisions, specifically that “[i]t is when the cannons roar that we especially need the laws… It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it.  The state fights in the name of the law and in the name of upholding the law.  The terrorists fight against the law, while violating it.  The war against terrorism is also law’s war against those who rise up against it.”).

(238) Sussman v. Bank of Israel, 801 F. Supp. 1068, 1077 (S.D.N.Y. 1992), aff’d 990 F.2d 71 (2d Cir. 1993).

(239) Unofficial translation of Decision no. 1/2009, 17 July 2009 (plenary), of the National Criminal Court of Appeals (“Sala de lo Penal de la Audiencia Nacional”), at 24, regarding Preliminary Criminal Proceedings no. 154/2008 of the Central Investigation Court no. 4.  See also Appeal of the Coordinating Prosecutor (Pedro Martinez Torrijos), 6 May 2009, from the Order of the Audiencia Nacional de Madrid, 4 May 2009, in Preliminary Proceedings Case No. 157/2008 (emphasizing that Israel’s investigatory system, with review by the Military Advocate General, the Attorney General and the Supreme Court, “fully satisfy” the requirements of “an independent and impartial system of justice”).
(240) See United Kingdom:  Aitken Report, An Investigation into Case of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, available at (hereafter “Aitken Report”) (describing the procedures for investigating violations of the Law of Armed Conflict in the United Kingdom); United States:  Dept. of Defense Directive No. 2311.01E, Dept. of Defense Law of War Program, 9 May 2006 (setting forth the procedures for the investigation of “reportable incidents” regarding of the Law of Armed Conflict in the United States).

(241) See, e.g., Canada, United Kingdom, and the United States:  Victor Hansen, Changes Made in Modern Military Codes and the Role of the Military Commander:  What Should the United States Learn From this Revolution, 16 Tul. J. Int’l & Comp. L. 419 (2008) (describing U.S., Canadian, and United Kingdom court martial systems). 

(242) See Aitken Report, An Investigation into Case of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, available at .

(243) Aitken Report ¶ 28.  The APA is in the process of being consolidated into a service-wide Prosecuting Authority in the UK, the commencement of which has been deferred until October 2009.  See HM Crown Prosecution Inspectorate’s Follow-Up Report on the Army Prosecuting Authority, February 2009, ¶ 1.11. 

(244) Aitken Report ¶ 28.

(245) Id.

(246) Id.

(247) Id. ¶ 36.

(248)  See Dept. of Defense Directive No. 2311.01E, Dept. of Defense Law of War Program (9 May 2006). Although the Defense Department Law of War Program Directive establishes comprehensive procedures for investigating incidents related to the Law of Armed Conflict, as developed below, investigations are typically ordered by military commanders or military investigation agencies.

(249) A “reportable incident” is defined as “[a] possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations than war that would constitute a violation of the law of war if it occurred during an armed conflict.”  See CJCSI 5810.01C ¶ 5(b).

(250) See Dept. of Defense Directive No. 2311.01E ¶¶ 6.3-6.8;  CJCSI 5810.01C ¶ 7(a)-(b). 

(251) See Dept. of Defense Directive 2311.01E ¶ 6.5.1-2; CJCSI 5810.01C ¶ 7(c). 

(252) “Convening Authority” is defined in R.C.M. 103(6) to include “a commissioned officer in command for the time being and successors in command.”

(253) See R.C.M. 401, 504, 505, 601, 1107.

(254) Many other countries likewise do not provide (as does Israel) for independent judicial review of either the decision to commence a criminal proceeding or the criminal proceedings themselves.  See India:  T. Padmanabha Rao, Supreme Court Ruling on Court-Martial, The Hindu, 17 April 2001, available at http://www.hindu.com/2001/04/17/stories/0217000p.htm (noting the lack of judicial review of court martial proceedings); Singapore:  Abdul Wahab bin Sulaiman v. Commandant, Tanglin Detention Barracks, 1985-1 Malayian L.J. 418, 1985 MLJ LEXIS 37 (Sing. 1985) (noting ruling by the High Court of Singapore that it lacked authority to review decisions of the Military Court of Appeals by prerogative writ).

(255) See, e.g., Remarks of Justice Richard Goldstone quoted in Andy Clark, Could ICC Prosecute U.S. for Iraq Crimes? Radio Netherlands, 18 June 2009, available at http://www.rnw.nl/id/node/6962 (noting that civilian deaths caused by the NATO bombings in Yugoslavia and by US military actions in Iraq and Afghanistan don’t “come anywhere near the sorts of crimes” that merit international investigation and emphasising that democracies like the United States and EU countries have capable legal systems for investigating such complaints and pursuing sanctions as appropriate on their own).