Resource: The Israeli Government’s Legal Position on Who is a “Combatant” in the Gaza Conflict [Updated]

There has been a lot of loose talk in the media and by some commentators about the government of Israel’s official position on the definition of who is a lawful target in Gaza. In an earlier post, I tried to do two things: (1) explain how well settled and clear the laws of war are on this topic; and (2) use the device of a New York Times story, which not only overlooked the existence of established international legal criteria but also obscured the question of what exactly is Israel’s official position.

As I discussed previously, under the international laws of war, lawful targets include members of the armed forces of an opposing side and individuals who “directly participate in hostilities” (see also #2 in HRW’s primer on the Gaza conflict).

In this post, all I do is essentially pull together and organize sources that set forth the Israeli government’s legal position. I do not claim whether IDF practices actually conform to these official positions. (And I do not, to be honest, engage in a deep analysis comparing Israel’s position to settled international law). I simply intend to introduce these sources to inform public discussion.

A. Lawful targets: “combatants”/direct participants in hostilities

1. General standard

Israeli High Court of Justice (2009) stated that the following are included in the class of lawful military targets::

“[T]he following cases should also be included in the definition of taking a ‘direct part’ in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities or beyond those issues … a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants.” (para. 35)

The Government of Israel’s Report on the December 2008-January 2009 Gaza operation (“Cast Lead”) is in line with the High Court: Paragraph 98 of the Report quotes essentially all of the above language of the High Court’s opinion as the governing legal standard for targeting.

Israel’s Military Advocate General submitted position papers to the Turkel Commission, which examined the 2010 “flotilla incident.” One of the position papers [see Note 2 below on the English translation] includes an important analysis suggesting that Israel also defines legal targets in Gaza on the basis of an individual’s status (membership in an armed force), not simply on the basis of an individual’s conduct (direct participation in hostilities):

“[G]rounds exist for making a distinction regarding the application of the [High Court] ruling’s principle determination– to the effect that an attack on Palestinian terror organization operatives is permissible only in the framework of the exception of a ‘civilian taking a direct part in the fighting’ – with regards to situations where the IDF is operating against an organized armed force that maintains effective control in a certain area, for then the attack place takes place against fighters who are members in the armed force, rather than against civilians who take a direct part in the fighting.”

[Note 1: Membership in an armed group is, at least stated at that high level of abstraction, consistent with the International Committee of the Red Cross’s Interpretive Guidance. The ICRC, however, adopted a specific test for membership, called the “continuous combat function.”]

[Note 2: The position paper is unclassified and publicly available on the MAG website, in Hebrew only. The above excerpt is from an unofficial, “working” translation of the position paper.]

2. “Voluntary human shields”

This category includes civilians who voluntarily and deliberately place themselves in situations to try to prevent a valid military target from being attacked.

The Israeli High Court of Justice (2009) held that these individuals are direct participants in hostilities and thus valid military targets:

“What is the law regarding civilians serving as a ‘human shield’ for terrorists taking a direct part in the hostilities? … However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities.” (para 36)

[Note: The International Committee of the Red Cross adopted the same view of voluntary human shields in its Interpretive Guidance (p. 56). (Update: Coming soon, Just Security will publish an exchange between Professor Adil Haque and me which identifies an important distinction with the ICRC position. I will include a link here upon its publication. Update-2: Our exchange is here and here.)]

3. Police force (performing a combat function)

The Government of Israel’s Report on the December 2008-January 2009 Gaza operation (“Cast Lead”) states:

“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. 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.”

[Note: The International Committee of the Red Cross disagreed with the government of Israel on this issue (as revealed by a leaked US document):

“According to Wettach [the ICRC Israel delegation head], there were fundamental disagreements between the IDF and the ICRC regarding distinction: for the IDF, for example, Hamas police were a legitimate target at all times; for the ICRC, a policeman who was not engaged in hostilities against Israel was not a combatant.”

This was, notably, the only issue explicitly raised in the US document with respect to a disagreement between the ICRC position and the Israeli government as to which persons could be targeted. The ICRC also noted a disagreement over the targeting of “civilian infrastructure” on open agricultural land that could be used to fire rockets.]

B. Not lawful targets: civilians/indirect participants in hostilities

1. General standard

Israeli High Court of Justice (2009) stated that the following are excluded from the class of lawful military targets:

“[A] person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants.” (emphasis added).

2. “Involuntary human shields”

This category includes civilians who do not by their own volition or intent place themselves in situations to try to prevent a valid military target from being attacked.

The Israeli High Court of Justice (2009) held that these individuals are not valid military targets:

“What is the law regarding civilians serving as a ‘human shield’ for terrorists taking a direct part in the hostilities? Certainly, if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism.”

C. Ambiguous cases

1. Dual use ministries?

All the above descriptions by the Israeli high Court and by the Government are relatively clear and specific. In contrast, on the issue of targeting Hamas ministries, the Government’s 2009 report on Cast Lead seems deliberately opaque:

“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.”

That said, another position paper that the Military Advocate General submitted to the Turkel Commission suggests that the Israeli government distinguishes between different “components” of the Hamas government:

“Even though there is no dispute that the Hamas regime in the Strip lacks any legal basis … we cannot deny that this is an effective administration that controls the entire territory of the Strip and uses the full range of governmental authorities.  Within this, Hamas operates various bodies which deal both with imposing its authority internally and with the combat against Israel.  … [T]he fact [is] that the Hamas regime in Gaza is a party to the armed conflict with Israel.  At the same time, it is already important to emphasize that this fact does not mean that all of the components are subject to attack in the framework of the armed conflict, precisely like the fact that the State of Israel is a party to the conflict does not lead to such a conclusion.”

[Note: This position paper is also unclassified and publicly available on the MAG website, in Hebrew only. The above excerpt is from an unofficial, “working” translation of the position paper.]

2. “Logistical funding and human resources for the terrorist arm”

During the January 2009 operations in Gaza, the IDF spokesperson made the following statement as reported by the BBC:

“Israeli Defence Forces spokesman Captain Benjamin Rutland told the BBC: ‘Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm.’”

The IDF statement to the BBC appears inconsistent with the standards outlined above. Recall, for example, that the Israeli High Court excluded “a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid.”

* * *

I imagine some readers may argue that the above information shows that Israel has adopted a highly persuasive and measured position on who is a combatant (i.e., a lawful target). Others may reject that position. Some may argue that the above shows that current IDF practices violate Israel’s own interpretation of international law. Still others will argue the opposite. Entering those debates is not my brief. Simply providing the preceding information is. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.