IDI Releases Legal Opinion on Operation Protective Edge and International Law

Operation Protective Edge and International Law

A Legal Opinion by Israel Democracy Institute Experts on Democracies Battling Terror

In light of the ongoing rocket fire from Gaza and Israel’s Operation Protective Edge, IDI scholars have released a brief outlining the basic legal concepts involved in asymmetrical warfare and the boundaries of permissible action according to standard interpretations of existing international law.

The authors of this brief are internationally recognized experts on the legal aspects of asymmetric warfare and counterterrorism.

• Yohanan Plesner, IDI President, and former Member of Knesset and member of the Knesset’s Foreign Affairs and Defense Committee
• Prof. Mordechai Kremnitzer, IDI Vice President, former Dean of the Law Faculty at the Hebrew University of Jerusalem, and former Deputy Chief Prosecutor and Military Judge of the IDF
• Prof. Amichai Cohen, Research Fellow in IDI’s National Security & Democracy Project, and Dean of the Faculty of Law and Professor of International Law at the Ono Academic College
• Eli Bahar, Research Fellow in IDI’s Democratic Principles project and the former Legal Advisor to the Israel Security Agency (Shin Bet)

On releasing the opinion, Yohanan Plesner commented, “It is very unfortunate that there are civilian casualties on the Palestinian side, but this does not necessarily mean that every casualty is a war crime. International law provides ample tools for democracies to defend themselves, and we hope that this legal opinion will enrich the international discourse.” (Read the introductory letter by Yohanan Plesner.)

Main Points

In the legal opinion, the authors assess Israeli practices and underscore the need to balance between national security considerations and the fundamental obligation of every government to protect the lives of their citizens on the one hand, and considerations of human rights, the rule of law, and the obligation to minimize the risk to Palestinian civilians on the other. Salient points of the legal opinion include the following.

• Hamas Activities: The activities of Hamas and other terrorist organizations during the conflict constitute war crimes. Firing rockets at Israeli civilians constitutes a clear violation of international law, and imposes individual criminal responsibility on the perpetrators. Deliberately hiding among a civilian population is also a war crime.
• Targeting Civilian Facilities: Civilian facilities – including residential homes, hospitals, and schools – are often exploited as weapons storage facilities, rocket launching sites or for other military uses. Consequently, such facilities may be targeted if a terrorist organization has turned them into a military use (subject to the requirement of convincing evidence). Similarly, a place of worship (such as a mosque) may be targeted if there is evidence that the structure is being used for military purposes, and that its destruction provides a clear military advantage. On the other hand, harming civilian structures in order to intimidate the civilian population is prohibited.
• Targeting Terrorists: Once Hamas operatives engage in actual combat activities (including shooting, planning, and commanding), they are legitimate targets at all times. This principle is also accepted by the United States and other states fighting terror.
• Illegitimate Targets: Civilian organizations (e.g., providers of medical services), traffic police, individuals involved in transferring funds, food providers, and the social welfare institutions of Hamas are not legitimate targets if there is no concrete evidence that the people providing these services are taking a direct part in hostilities against Israel.
• Proportionality and Civilian Casualties: The killing of civilians in and of itself does not constitute a violation of the principle of proportionality. Proportionality does not guarantee zero harm to civilians. The principle permits the attacker to harm civilians incidentally when the collateral damage to civilians will not be excessive in relation to the anticipated, direct military advantage of the objective.
• Advance Warning: There is a duty to give advance warning before an attack that may harm civilians, unless circumstances prevent such a warning. The warning is not intended to allow indiscriminate bombing of a particular area without having to ascertain that there are no civilians in the vicinity. The fact that Hamas may force civilians to remain does not relieve Israel from its responsibility to protect civilians from harm to the best of its ability. For this reason, in each case, it is necessary to examine the realities on the ground after the warning and to take steps that will reduce the damage to the civilian population.

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