During last year’s Operation Protective Edge, a fascinating data visualization published in Medium revealed the extent of political polarization on Israel and Gaza and the scarcity of common ground. As the visualization shows, supporters of both sides consumed information strictly from sources that vindicated their own point of view and entrenched their predispositions. The effect was strangely dissociative: At some points, it seemed that the supporters of the parties habituate two different spheres of reality.
Interestingly, this fissure is also reflected in legal discourse, along the lines not only of pro-Israelis versus pro-Palestinians, but also between what Eyal Benvenisti has called the law of armed conflict (LOAC) and international humanitarian law (IHL) camps. It thus should have been perfectly expected when a group of ex-generals proclaimed on June 12 that the Israeli military did above and beyond what was legally required to protect civilians during Operation Protective Edge, while Human Rights Watch concluded the opposite. Setting aside possible partisan interests, it is clear that the facts — in particular concerning the conduct of hostilities, fatality figures and investigatory practices — can only be validated, if at all, by a mechanism that enjoys free access to information currently under the exclusive control of both parties. Unfortunately, such a mechanism does not exist in this context. It is precisely because of such limitations, that it is best to discuss the Israeli government’s 277-page June 14 report about the 2014 Gaza conflict on its own terms.
The June 14 report, it must be noted, is not a quasi-judicial fact-finding report such as the 2011 Turkel Report. Rather, its key purpose seems to have been presenting the Israeli position in anticipation of the just-released UNHCR report headed by Mary McGowan-Davis — which Israeli Prime Minister Benjamin Netanyahu designated as a “waste of time” even before its release. Exactly for this reason, the liberal Haaretz criticized the June report as a “particularly long PR document.” However, notwithstanding the possible motivations behind the report, this critique misses the mark. As Laurie Blank noted here a few days ago, the report should be commended if only for highlighting some of the dilemmas of asymmetric warfare, and for its detailed disclosure of the relevant legal framework as Israel understands it. The latter is particularly true considering the uphill Freedom of Information battles concerning the disclosure of legal bases for US drone strikes. I would also note that the report seems to be drafted in anticipation of counter-arguments; some of these are, in turn, directly engaged in the McGowan-Davis report.
The June report provides Israel’s view on the conflict’s background, on its objectives during the conflict’s various phases, and on the conduct of Palestinian armed groups during the hostilities. It also describes Israel’s investigations (perhaps the most consequential issue considering the Palestinian accession to the Rome Statute), and provides its assessment of fatality figures in Gaza. Regarding the conduct of hostilities by Israel, the report raises numerous points that deserve detailed attention from IHL scholars and practitioners. However, here I will focus only on three general issues concerning Israel’s position that can be discussed without access to the full factual picture.
Jus ad Bellum, Jus in Bello, and Proportionality
The first point of interest is the report’s approach regarding the application of jus ad bellum to the Gaza context. The report devotes significant effort to convince readers that Israel’s actions were reactive in nature, and that Israel was justified to “use force” in Gaza (para. 65). Yet, it also stresses that Operation Protective Edge was just one eruption in a prolonged armed conflict, ongoing for over 14 years (para. 66). Israel’s general approach towards the situation in Gaza is that a continuous armed conflict exists, with occasional peaks in the form of concerted “operations,” which do not affect the overall legal situation. Although there are contesting views concerning the status of the Gaza Strip as occupied territory, and there is also some ambiguity regarding the classification of the conflict (international versus non-international), it seems that most commentators do not in fact challenge the premise that ongoing conflict exists.
Now, the upshot of this claim, as Israel sees it, is that situating the operation within an already existing conflict makes the analysis of jus ad bellum necessity and proportionality redundant (Annex, n.2). This reasoning reflects the rather conservative view that once a situation of war exists, jus ad bellum ceases to constrain the use of force, which is now regulated by jus in bello alone. However, this approach is impossible to apply in real life, since both necessity and proportionality, taken seriously, can only be assessed dynamically along a temporal spectrum. Even when an initial defensive act might seem necessary and proportionate, this might change as the conflict progresses: for instance, a credible peace initiative is put forward, but the defending party arbitrarily refuses, thereby nullifying the “last resort” requirement of necessity; or that the defensive operations, initially aimed to counter the enemy’s armed attack, have transformed to something entirely different — thus making the use of force disproportionate (Israel’s own 1982 war in Lebanon comes to mind).
The report seems to be aware of the limited power of the “ongoing conflict” argument for the purpose of jus ad bellum, since it indeed provides a (rather thin) analysis of jus ad bellum necessity and proportionality. Interestingly, its reasoning here correlates with the dynamic view of these terms, as it argues that “Hamas’s continuation of rocket and mortar fire against Israel throughout the 2014 Gaza Conflict demonstrated the need for Israel’s sustained military action” (para. 69). While the political impetus to refrain from discussing jus ad bellum is clear, it is precisely in this context that some of the most acute normative questions arise — in particular concerning the issue of necessity in the current political impasse in Israel/Palestine. Namely, the question should be asked whether (generally speaking) the involved parties exhausted possible peaceful measures before resorting to force.
A connected issue has to do with the normative implications of casualty figures. As is well known, the Gaza conflict resulted in a much higher fatality number among Palestinians, including, as the report notes, 369 children under the age of 15 (para. 26). Now, the report repeatedly stresses that the number of casualties in Gaza — whether in itself or in relation to Israeli casualties — does not necessarily imply disproportional conduct either on the ad bellum or in bello levels (paras. 69, 105, 330, Annex paras. 2, 6). While this may be true in terms of positive law, two remarks should be made. First, on the ad bellum level, proportionality in traditional just war theory indeed refers to weighing expected universal goods versus the universal evils. To those proceeding from this point of departure, the parties’ relative losses are indeed ethically relevant. Many of the participants in the discourse on Israel and Gaza talk past each other precisely because they fail to acknowledge these divergent applications of proportionality. Second, the casualty comparison might enter the backdoor of in bello proportionality if a key military advantage expected from a specific attack is protecting the attacker’s civilians, which sometimes is the case in operational settings such as Israel/Gaza (para. 318). In a “pure” case of this order, the attacker essentially calculates lives of civilians on both sides against each other, and would therefore have to make a controversial argument regarding the assessment of lives of civilians. In particular, it would have to openly embrace either a cosmopolitan or a collectivist view of the role of states in the contemporary international system, and whether (or to what extent) states can give greater weight to the lives of their own civilians.
A further point that deserves attention is the dynamics and politics of military advantage and civilian harm. Simply put, the question is which considerations are relevant when thinking about proportionality, and how concrete and direct these should be; and how much should “context” be considered when analyzing such questions. The report elaborates on the harm caused to Israeli civilians by indiscriminate Palestinian rocket and mortar attacks. As the report rightly notes, these harms go beyond the purely physical and extend to the psychological, including lasting impact on vulnerable populations (paras. 192–230). Elsewhere, the report notes that the “high cost” of active defense systems such as Iron Dome should be factored into the military advantage expected by attacks against rocket launchers, advantage that can be measured against civilian harm in jus in bello proportionality (para. 322). However, when discussing collateral damage caused by IDF attacks, the report seems to focus on “conventional,” narrow forms of harm, namely, physical harm to civilians. Although the report notes the need to consider “indirect” incidental harm to civilians within the proportionality calculation (n.254), it is unclear to what extent this would include the type of lasting harms described above. It is clear, nevertheless, is that if “context” is taken into account in one side of the proportionality equation, it must also be accounted for on the other.
Targeting the Targeted Killings Case?
Another issue of interest concerns the legal status of members of Palestinian armed groups: namely, are they civilians, combatants, or under some form of third category. On this question, the report seems to reveal tension between the Israeli executive and judicial branch. In its famous 2006 Targeted Killings case, the Supreme Court of Israel rejected the government’s argument that a “third” status of unlawful combatants existed under IHL. Palestinian militants were essentially civilians, who can only be targeted when directly participating in hostilities (DPH). Under such circumstances, there is also a preference to capture rather than kill, and an obligation to conduct to an independent ex post inquiry. Indeed, in its previous report on 2008–2009 Operation Cast Lead, Israel seemed to have understood the status of Hamas militants through this prism. Later in 2009, however, the ICRC presented its own view of the question, recognizing, for the first time, the legal status of “members of organized armed groups,” whom are neither civilians nor privileged combatants, and can be therefore targeted for the duration of their membership in an armed group. Yet, membership in such groups was constructed around the exercise of a “continuous combat function,” a term itself structured around the notion of DPH. However, Israel now claims that “under the Law of Armed Conflict, members of organised armed groups may be attacked at any time by the sole virtue of their membership,” and that this membership does not require a continuous combat function (para. 267). In a sense, this approach adopts the enabling aspects of the ICRC’s approach, while doing away with its constraining parts. Its rationale, as elaborated mostly by military lawyers, is that the targetability of states’ armed forces and organized armed groups should be assessed on equal terms.
Whether customary international law supports such a view, and whether it is desirable, cannot be addressed here — the issue remains controversial. What is clear, however, is that at least under Israeli law, the Targeted Killings case is still the law of the land (more on this issue here on pages 35–36). It appears, from the state’s arguments in another case, that it sees the Supreme Court’s reasoning as unfit to address situations of high-intensity combat against extremely organized armed groups. Nonetheless, since other parts of the report cite that case (for instance, regarding its rather broad definition of DPH), and refer to the “international respect” earned by the Court, it would be at least expected that the report would attempt to distinguish its reasoning. This is especially true considering that the report discloses that the “highest legal echelons, including the Ministry of Justice,” oversee the designation of an entity as an organized armed group (para. 266).
My last point deals with the question of disclosure of facts pertaining to several incidents of concern. While disclosing the general legal framework for the conduct of hostilities, as the report does, is certainly a step in the right direction, it does not go far absent a measure of factual disclosure. Simply put, while states can produce impressive documents, these, on their own, do not tell us much about actual conduct. In this context, the report does not offer a systematic analysis of incidents in which significant civilian harm was caused, in particular when residential structures were targeted. (Some of these incidents, however, are discussed in Israel’s periodic updates of ongoing investigations, which offer some measure of factual disclosure.) Rather, the report generally notes that residential structures in Gaza have been used for military purposes, while giving several examples (paras. 276–79).
I do not attempt here to assess these updates or the investigations themselves, but the report raises some general questions on the extent of states’ disclosure obligations regarding their conduct during armed conflict. The report claims that “it is often extremely difficult to provide evidence demonstrating exactly why certain structures were damaged.” This is either because the evidence was destroyed in the attack or was removed by armed groups. However, the report notes that in other cases, detailed reasoning for the attack cannot be disclosed due to security considerations (para. 286). The inevitable result is that third parties lack the information required to assess, for instance, the military advantage of a specific attack (para. 333). The report goes a step further by adding the normative claim that IHL “does not include any … obligation to publicise such information” (n.438). This seems an unnecessarily narrow view of contemporary international law. In many situations of armed conflict, evidence remains in the exclusive control of states, and as a general principle of law, exclusive control might result in some burdens of disclosure.
As I have written elsewhere, the disclosure of the facts surrounding incidents where civilians are killed is regulated by a complex web of de facto expectations and emerging obligations stemming from principles such as transparency and international human rights law. These exist alongside IHL and possibly require governments to strike a balance between national security interests and factual disclosure, rather than opt for blanket non-disclosure. It should thus not come as a surprise that the McGowan-Davis report called on Israel to provide “sufficient details” on targeting decisions (para. 75).
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To conclude, it seems unlikely that the report will have a substantial effect over the international discourse concerning Gaza, considering the polarization mentioned above. Although some passing references were made to the report by the McGowan-Davis commission, it will probably be well received by those already amenable to its conclusions, while dismissed by others. Importantly, as a matter of politics, as long as a the reconstruction of Gaza is stalling, and in the West Bank a political settlement (or even the hope of progress) seems farther than ever, the effectiveness of such reports, at least when unaccompanied by systematic factual disclosure will likely remain limited.