Human Shields or Terror Victims?

The Israeli military said the apartment building contained an operational command and control center of Hamas, the Islamic militant group that dominates the Palestinian coastal territory, and that operatives were using the building as a base for their activities. Lt. Col. Peter Lerner, a spokesman for the Israeli military, could not immediately specify which floor, or floors, of the building were the targets in the attack, or whether the intention had been to destroy the whole tower.

  NYT

Really? They’re going to carry out an airstrike and only bomb certain floors?

Colonel Lerner, the military spokesman, added, “Hamas will not be free to continue its indiscriminate aggression against Israel from the comfort of high-rise buildings, farmhouses or greenhouses.”

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Israel has fired missiles to destroy apartments within a building, but this was the first time since the start of its military offensive on July 8 that a strike had completely brought down so large a building.

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Hesham Saqallah, a father of four who lived on the first floor, said a resident received a warning call about 6 p.m. and started shouting in the stairwell to alert his neighbors to leave. About 20 or 30 minutes later, he said, a missile fired from a drone hit the roof, and about 20 minutes after that, a warplane struck.

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The warnings advised residents to prevent their property from being used by militants, and to stay away from militant sites, according to the text of one of the leaflets, which the military also distributed to reporters. It ended with a clear message: “Beware.”

Begone, more like.

Gaza militants launched more than 100 rockets and mortar rounds against Israel during the day. At least two rockets that were fired after the building collapse reached the Tel Aviv area. One was intercepted by Israel’s Iron Dome antimissile defense system, and another apparently landed in open ground. On Saturday night, at least one rocket fired from southern Lebanon struck the Upper Galilee region in northern Israel, according to the police, causing damage to a house and wounding a child. Rockets from Lebanon have landed across the border in Israel at least twice before during the current Gaza conflict, in what may be a show of solidarity by Palestinian groups in Lebanon.

The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

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Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. [...] Warnings are not acts of charity.

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The final paragraph of Article 57 provides a first strong indicator that warnings do not influence the legal obligations an attacker otherwise faces. It unequivocally states that ‘[n]o provision in this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects’. [...] Civilian residences do not become military objectives only in virtue of their inhabitants having been warned.

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By the same token, warnings do not take care of the attacker’s obligation to weigh expected collateral damage against the anticipated military advantage and make sure the former is not disproportionate, ‘excessive’ in the language of Article 51(5) b.

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The argument for why civilians who remain in their homes, warnings notwithstanding, do not have an unimpaired claim to protection is that they must have decided to serve as human shields to the military objective that is the target of the impending attack.

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Voluntary human shields may, under certain circumstances, be considered to directly participate in hostilities and hence, for such time as they do, lose their protection from attack under Article 51(3). Yet, staying put after a warning is not sufficient evidence for the warned civilians’ qualification as voluntary human shields. [...] That children can never be considered voluntary human shields is self-evident.

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All international laws asks of civilians is not to directly participate in hostilities, but that obligation cannot be considered violated by ‘not fleeing’. No hostile intent can be inferred from the decision not to leave one’s home in a war zone.

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At the end of the day, any interpretation of Article 57 that imposes an additional obligation on civilians, but weakens the obligations the attacker faces is an interpretation contra legem. While by no means all rules of international law for the conduct of hostilities have an overriding humanitarian purpose, Article 57 does. [...] It does not spell out how the attacker’s obligations fall by the wayside if the presence of the civilian population interferes with a belligerent’s ability to conduct effective military operations.

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The second sentence [Article 51(2)] prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’. It is deeply plausible that a warning that one’s house will be bombed, in the absence of a real possibility to get to safety, does just that: it induces terror. Of course, from the practice alone we cannot infer that terrorising the civilian population is its primary purpose. Is their consistent ineffectiveness even counter-productiveness, as alleged by Amnesty International, Human Rights Watch and the United Nations, evidence enough that protecting civilians is not the primary purpose of warnings?

  Opinio Juris

To be fair to the Israelis, I think one could argue that the purpose is NOT to terrorise the Palestinians, but to exterminate them.

While Hamas has done little to suggest concern for human life and nothing to demonstrate commitment to international law, recent statements by Israeli politicians would make it naïve to accept warnings as simply the practice of a belligerent that selflessly upholds international law against an enemy that only uses it to score points. Lawfare, ‘the use of law as a weapon of war’, is usually understood to mean imposing reputational costs on the belligerent trying to comply with law by alleging violations or making compliance difficult, a charge routinely levelled against Hamas. [...] Using warnings as a means to legitimise the disproportionate victimization of civilians is lawfare 2.0.

After the first child, nobody batted an eye; after the 50th not even a slight tremor was felt in a plane’s wing; after the 100th, they stopped counting; after the 200th, they blamed Hamas. After the 300th child they blamed the parents. After the 400th child, they invented excuses; after (the first) 478 children nobody cares.

Then came our first child and Israel went into shock.

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Suddenly the death of a little boy has meaning, suddenly it is shocking. It is human, understandable and moving. It is also human that the killing of an Israeli boy, a child of ours, would arouse greater identification than the death of some other child. What is incomprehensible is the Israeli response to the killing of their children.

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The radio yesterday already talked about “murder.” The prime minister already called the killing “terror,” while hundreds of Gaza’s children in their new graves are not victims of murder or terror. Israel had to kill them. And after all, who are Fadi and Ali and Islaam and Razek, Mahmoud, Ahmed and Hamoudi – in the face of our one and only Daniel.

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Of the hundreds of men killed one could say that they were “involved”; of the hundreds of women that they were “human shields.” As for a small number of children, one could claim that the most moral army in the world did not intend it. But what shall we say about almost 500 children killed? That the Israel Defense Forces did not intend it, 478 times? That Hamas hid behind all of them? That this legitimized killing them?

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Something here has to rise up and scream: Enough. All the excuses and all the explanations will not help – there is no such thing as a child that is allowed to be killed and a child that is not.

  Haaretz: Gideon Levy