Not sure if anyone is reading this thread, as there was no discussion around it, but since my friend (who is a professor of international law in Europe and works in International and human rights law) made some comments on what Don Radlauer of the Institute for Counter-Terrorism was arguing in the other emails in this thread, I thought to offer it up to those who are interested.
Bryan
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In general, you have raised pretty much of the relevant issues, so I just want to emphasize a few things.
- You are right to point out at Art. 57 of the 1st Add. Protocol of 1977. However, legally speaking, one has to keep in mind that Israel is not ratified it and is thus not bound by the Protocol as such.
- However, many rules contained in this treaty are declaratory of customary law, and this is binding upon all States whether or not they are States Parties to the Protocol.
- This is particularly true for the principle of distinction or discrimination, i.e. the duty to distinguish between combatants and civilians at all times. It is also expressed in Art. 49 of the 1st Add. Prot: "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and accordingly shall direct their operations only against military objectives." This is not just one of many goals to be taken into account, but one of the paramount principles of the contemporary law of armed conflict.
- This has also implications on the procedural level which have also customary law status: Each party to a conflict has the duty to take precautionary measures to guarantee that the substantive principle is respected. This is expressed in some detail in Art. 57, and one can legitimately doubt whether every comma therein is customary, but definitely most of it.
- In addition, and this is crucial, civilians are defined by exclusion, as shown in Art. 50 para. 1 1st Add. Protocol: "A civilian is any person who does not belong to one of the categories of persons referred to [combatants etc.]" To this is to be added the rule enshrined in para. 3: "Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities". However, the whole regime is governed by the overarching protection goal of the civilian population. As a corollary of that, "in case of doubt whether a person is a civilian, that person shall be considered to be a civilian."
This has implications for Don's reasoning:
- He seems to suggest that by virtue of the method of warfare employed by certain militants the civilian population loses much or most of its protection ("By disguising combatants as civilians, Hamas effectively makes civilians ... into legitimate objects of suspicion and likely targets"). However, see Art. 50 para. 3: "The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character." In addition, the rule of doubt must be respected.
- Furthermore, in the ICT's study they speak of Hamas members who were "involved directly or indirectly in the fighting" or who "could not be positively identified as being non-affiliated with a militant group". There is a general, and problematic, tendency to widen the definition of combatant - even though the principles of IHL work just in the opposite direction. i) According to Art. 50 para. 3 only taking "a direct part in hostilities" leads to the loss of protection as a civilian. Indirect participation is not sufficient. (ii) There is not need to positively identify somebody as a non-combatant to be protected. It is the other way round: As long as there is no reliable indication that someone is a combatant, the rule of doubt applies. iii) "Affiliation" with an armed group as such does not suffice for becoming a combatant or a civilian taking directly part in hostilities. More is required - to be sure, some forms of membership might be enough, but it must materialize in something like direct participation (e.g. not directly fighting, but being a senior member of group coordinating attacks, selecting targets etc.).
- The reasoning relies very much on the perspective of the soldier in the heat of the battle. While there is something to this, one must be careful:
i) It is true that the evaluation whether a potential target is civilian or not must be made from an ex ante-perspective. The mere knowledge afterwards that one was wrong proves nothing.
ii) However, one should not focus too much on the single soldier who has admittedly not too much information and overview over the situation. That is why the relevant rules on precautionary steps particularly address "those who plan and decide upon an attack". They normally know much more. Many attacks are prepared, and the targets are carefully chosen, and risk assessments are made (or at least should be made) whether and how many civilians will be there and how difficult it will be to distinguish them. The rules enshrined in Art. 57 are pretty clear in this regard. Planning is key, and when the result is a) that the distinction can not reasonably made (possible violation of the principle of distinction) or b) that it can be made, but that one has to expect incidental loss of civilian life (what is otherwise called: "collateral damage") that would be excessive in relation to the concrete and direct military advantage anticipated (possible violation of the principle of proportionality), the attack "shall be canceled or suspended". While this is, again, to be evaluated from an ex ante perspective ("anticipated"), it is important to see that the 1st Add Protocol does not only require some kind of general or abstract military advantage (e.g. weaking of the enemy), but a "concrete and direct military advantage".
iii) Hence, the responsible army officer might only order an attack in densely populated setting, in particular when they know (or should have known) that it will be difficult to distinguish between civilians and combatants, whether there is enough intelligence, whether the soldiers have been trained appropriately, whether other precautions have been taken (effective advance warning etc.), otherwise they can become personally responsible under the doctrine of command responsibility. See, e.g. Art. 28 of the ICC Statute (which is not binding upon Israel, but the doctrine of command responsibility is generally recognized): "A military commander ... shall be criminally responsible for crimes ... committed by forces under his or her effective command and control ... as a result of his or her failure to exercise control properly over such forces were that military commander either know or, owing to the circumstances at the time, should have known that the forces were committing or about to commit crimes, and that military commander ... failed to take all necessary or reasonable measures within his or her power to prevent ... their commission ..." Insofar it is not correct to say that "only if the IDF fails properly to conduct such investigations and impose appropriate punishments on soldiers and officers found guilty of illegal or improper actions is the IDF or the Israeli government implicated in war crimes."
iv) So when it is said that "it is perfectly legitimate for IDF soldiers to have killed or injured young men ... who they believed posed a threat - since there was no obvious and safe way, under the prevailing circumstances of Operation Cast Lead, to distinguish", this is only half of the truth. What might be true for the single soldier who really has to take a spontaneous decision in the field, looks utterly different from the perspective of the responsible commanders. They have to evaluate beforehand, whether and in how far they, by given the command to start an operation, contribute to such situations which have a relatively high chance to lead to mistakes in the evaluation and overreactions. If the risks are too high in terms of distinction and proportionality, they must not order the operation in the first place.