Israeli lawyer Michael Sfard analyzes IDF war on Gaza

A legal analysis by Michael Sfard, legal counsel for Yesh Din (Volunteers for Human Rights), quoted here extensively with his permission, puts into context the revelations by Israeli soldiers published in the Israeli media in about their “permissive rules of engagement”.

This analysis also sets the stage for the United Nations Human Rights Council’s consideration, on Monday in Geneva, of reports about the hostilities during the war.

Sfard wrote, in his analysis, that the first and most important principle of International Humanitarian Law (IHL), its raison d’etre, is the principle of Distinction: “Combatants must always aim their weapons at military targets, at combatants and military objects only. Combatants are never allowed to aim their weapons at civilians or civilian objects. There is only one exception, and that is when civilians participate in hostilities and endanger the lives of others, and then the ordinary principle of self defense of combatants allows them to use force against civilians, for the duration of the civilians’ active involvement in the hostilities. That is the only exception and it is not relevant to our case of the Gaza War”.

The second principle of IHL, Sfard states, is the principle of Proportionality, which states that aiming weapons at, or targeting, legitimate targets (such as combatants or military objects), is not legal if if there is reason to believe that illegitimate targets (civilians or civilian objects) will be harmed by the attack, and that the foreseen harm to these illegitimate targets is greater than the advantage gained by the destruction of the legitimate target.

In the war in Gaza, Sfard wrote, “there are alarming indications that we [Israel] have violated both principles. The amount – or the gravity – of the violation and the number of offenses – war crimes – that we have committed, is indeed dependent on facts. It is important to mention that according to international law, not enabling an impartial, professional, independent investigation of allegations of violations of international humanitarian law is in itself a violation of international law. So, if there are factual questions, for example, whether if before the attack on the UNRWA school there was indeed fire shot from the school at the soldiers or if the attack targeted not the UNRWA school but a nearby location, then Israel must allow an impartial, professional, independent investigation to be held. And if Israel doesn’t do so this in itself is a violation of international law”.

In the war in Gaza, Sfard wrote, “there are alarming indications that we [Israel] have violated both principles. The amount – or the gravity – of the violation and the number of offenses – war crimes – that we have committed, is indeed dependent on facts. It is important to mention that according to international law, not enabling an impartial, professional, independent investigation of allegations of violations of international humanitarian law is in itself a violation of international law. So, if there are factual questions, for example, whether if before the attack on the UNRWA school there was indeed fire shot from the school at the soldiers or if the attack targeted not the UNRWA school but a nearby location, then Israel must allow an impartial, professional, independent investigation to be held. And if Israel doesn’t do so this in itself is a violation of international law” …

“Allegations have been made regarding the legality of the rules of engagement ordered to infantry units during Operation Cast Lead. Soldier testimonies published in the Israeli media alleged that the applicable rules of engagement defined ‘shoot-to-kill zones’. If that is true, that means that soldiers were ordered to shoot indiscriminately at combatants and civilians alike. That is the clearest violation of the principle of Distinction …

“The most simple allegation that can be made, and it seems that cannot be refuted, against the Israeli army in the Gaza War is that it implemented a declared policy of targeting civilian infrastructure and civilian objectives, which was termed by Israeli leaders as a policy of targeting ‘symbols of the Hamas regime’, or ‘symbols of government’. In the framework of this policy, we targeted governmental offices, such as the Ministry of Education and the Ministry of Transportation. We targeted the Palestinian Parliament, the Parliament House in Gaza, and police stations, the police main headquarters, and many others. These are civilian objects and are not a legitimate target …

“I have to stress that police, even if armed is not a combating force under international law, unless the police force is a part of the combating infrastructure. Policemen do not enjoy the rights of combatants according to international law; if they engage in battle, if they take part in hostilities, they can be tried, and they don’t enjoy Prisoner of War status if captured. At the same time, and as a consequence of that, they do enjoy the protections afforded to civilians and thus they are not a legitimate target …

“Of course if civilians were in these institutions during the attack then the offense is much graver and then we are dealing not only with destruction of civilian infrastructure and objects, but also with a possible crime of wanton killing of civilians

On Proportionality, Sfard wrote: “[P]roportionality in essence is a principle that is based on morality, and my morality is [or,may be] different than other men or women’s morality. But if I equate what happened in this recent conflict to what has happened in incidents in the past to see what Israel has said is Proportionate and what Israel has said is not Proportionate, this time we can see a huge drop in moral standards by Israel.

“Case in Point: Five and a half years ago, Israel assassinated Hamas extremist Salah Shehade killing fourteen civilians and wounding another hundred in that attack. Israel has never claimed that this attack was Proportionate. Israel claimed in writing, before the High Court of Justice, that had they known that civilians in such numbers were around Salah Shehade at the time, they would have not carried out the attack. Their defense was different then, they said they did not know: ‘we did not expect, we could not foresee the damage to civilians and civilian objects’.

“In this war we have many many many Salah Shehade assassinations. And this time Israel has not said it is sorry for the loss of life, and has not said ‘we did not know that civilians were there’. Actually it says something completely different. It says ‘we called them and we announced that we are going to bombard this house and we gave them a chance to leave’.

“Well, that means that Israeli decision makers knew that there were civilians in the house. The reason why they [the civilians] did not leave the house is immaterial, irrelevant to the question of whether the attack was legal or not. It might be that those people did not leave because some of them were old, some of them may be handicapped, maybe children did not leave for other reasons, and maybe they are fanatics who do not think that they should leave just because Israeli airplanes were going to shoot at them. It is not important. The fact of the matter is that the result in many attacks was grossly disproportionate according to the standards Israel claimed it held five years ago.

“It is also irrelevant whether the attack was meant to kill a combatant or a terrorist that was in the house, or whether the attack was meant to demolish ammunition that was hidden the house. It is not important, as long as the house was not used during the attack to shoot at soldiers. If someone shoots at you, you can shoot back, you can defend yourself, that’s clear. [But if not…]

“And now we are getting to the second point that I wanted to make about proportionally. And that is the point, the most complex one, what do you do when you are shot at from a civilian object? And that was the Israeli defense regarding the UNRWA school, and regarding Dr. Abu El Esh, and other incidents where they shot at protected areas. Again, the incidents have to be investigated and Israel must allow investigations, and if it doesn’t, that’s a violation in itself.

“But let’s assume Israel is telling the truth, and the attacks on these places were carried out as responses, retaliations, or self defense, because Israeli soldiers were shot at from these places, then we have to ask ourselves whether the counter attack was Proportionate. According to media reports, and these incidents must be fully investigated to resolve factual issues, what we have seen during this war was that every time snipers shot at Israelis, the Israeli army responded with bombs, either from the air or by tanks, which demolished the whole compound from where snipers allegedly shot at them. There is a specific example in the High Court of Justice’s decision on the legality of the assassinations policy case, where former Chief Justice of the High Court of Justice Aharon Barak states that it would be proportionate to shoot at a sniper that is shooting at you from a balcony, but it would be disproportionate to drop a bomb that would demolish the whole building and would bury underneath not only the sniper but also his neighbors…

In addition, Sfard wrote: “There is one principle in International Law of Armed Conflict which was certainly violated grossly in the recent Gaza War. I am referring to the duty of the fighting powers, definitely in circumstances of actual occupation and when engaging in offensive in a civilian area, to allow civilians to escape the battle zone.

[This is a point discussed in our earlier post, on 6 January, “No other country in the world”, here.]

The point is also perfectly corroborated with the just-released testimony of one of the soldiers, “Aviv”, who said: “they [the IDF commanders] used a huge amount of firepower and killed a huge number of people along the way, so that we wouldn’t get hurt and they wouldn’t fire on us. At first the specified action was to go into a house. We were supposed to go in with an armored personnel carrier called an Achzarit [literally, Cruel] to burst through the lower door, to start shooting inside and then … I call this murder … in effect, we were supposed to go up floor by floor, and any person we identified – we were supposed to shoot. I initially asked myself: Where is the logic in this? From above they said it was permissible, because anyone who remained in the sector and inside Gaza City was in effect condemned, a terrorist, because they hadn’t fled I didn’t really understand: On the one hand they don’t really have anywhere to flee to, but on the other hand they’re telling us they hadn’t fled so it’s their fault”… This was included in our previous post, here.

Back to Michael Sfard’s analysis. He also noted that: “Israel says, and probably rightly so, that the arena of battle was forced on us, that we didn’t chose where to fight, that the Hamas combatants were hiding in the streets of downtown Gaza. But what could a civilian who did not wish to be part of the fighting do in order to save herself and her family? Israel did not open a humanitarian corridor for those who wished to leave their houses and stay away from the fighting area until the hostilities were over. And that is possibly the worst violation of Israel’s responsibilities under International Humanitarian Law in the Gaza War, and one that created many levels of violations, because the IDF forced civilians to stay in a combat zones. The civilians could not get medical care or be treated, they could not get food and water supplies, and they were victims of direct attacks and enormous psychological stress.

“I am not a military expert – but I believe it would have given Israel a huge military advantage if tens of thousands of civilians would be allowed to leave the combating area and it seems, and this is based purely on a suspicion, but it seems that not allowing civilians out was part of the strategy in order to create the deterrent that Israeli leaders talk about constantly. And if that’s true, it is a grave violation of International Humanitarian Law“.