Permission to Kill in Gaza

In the summer of 2014, Israel unleashed unprecedented violence against the Gaza Strip. Although it was third such large-scale attack since 2008, the fourteenth military offensive since Israel's unilateral disengagement in 2005, and the twenty-second since former Prime Minister Ariel Sharon announced plans for disengagement in April 2004, Operation Protective Edge (OPE) was by far more violent and merciless than any of its predecessors. In large part, this shift reflected Israel's radical innovations in the laws of war with the aim of expanding its right to use force and to diminish protections for Palestinian civilians. These innovations--which defy and deviate from international consensus about the legal rights of states--reflect a move that Israel set in motion at the beginning of the second Palestinian intifada in 2000 and accelerated following its unilateral withdrawal from Gaza in 2005. The use of force against Gaza in 2014 reflects a new norm that Israel, together with the United States, aims to establish in the context of counter-terrorism operations. This "new normal" means that future confrontations between Israel and Palestinian combatants, as well as Hezbollah for that matter, will likely entail similar shows of devastating force.

The scope of death and destruction in Gaza in the summer 2014 was an inevitable result of this "new normal." Consider that Israel's comprehensive siege, together with the Egyptian regime's collusion to seal the Rafah crossing, meant that Palestinians had nowhere to flee during hostilities. Consider also that the Gaza Strip, 365 square kilometers and home to 1.8 million Palestinians, is one of the most densely populated places on earth. During the 2014 attack, Israel expanded the buffer zone from the eastern and northern land borders by forty-four percent, thus further concentrating the population. With nowhere to flee and concentrated into the center of the Strip, any aerial attack on the Gaza Strip would be an attack on the entire population. These circumstances ensured grotesque devastation upon Gaza's population.

Since the start of the second intifada in September 2000, Israel has insisted that it is engaged in an "armed conflict short of war" with Palestinians in the West Bank and Gaza. Following Israel's unilateral disengagement from the Gaza Strip in 2005, the government disingenuously declared the cessation of military occupation there, despite maintaining its effective control of the territory and terming Gaza a "hostile entity" to denote its lack of sovereignty.

This legal ambiguity has been deployed by Israeli officials to argue that the situation in Gaza is sui generis, and therefore not regulated by traditional laws of armed conflict. Instead, Israel has claimed the right to wage war against the population while simultaneously denying combatant status to Palestinian fighters. The denial of such status allowed Israel to criminalize all use of force--including defensive operations and those targeting Israeli soldiers and military objects. Moreover, Israel categorized all fighters in Gaza as civilians who are directly participating in hostilities, rather than as combatants who have the right to kill to achieve a military advantage. As such, Israel denied captured Palestinian fighters the designation as prisoners of war, or POWs. At the same time, Israel accreted to itself the "right" to engage in assassination operations under the cover of war.

Until September 2001, the US government publicly rejected Israel's attempts to reinterpret the laws of war. Following Al-Qaeda's attacks on the World Trade Center and the Pentagon, however, the Bush administration emulated Israel's novel approach and integrated similar arguments and tactics into the lexicon of the U.S.'s global "war on terror." Those approaches continue to be advanced by the Obama administration in its drone warfare and targeted killing policy. This background helps explain the lack of condemnation of Israel's unprecedented and unlawful rules of engagement in 2014.

Five of Israel's most troubling claims are:

1) No Palestinian Combatants

Israel has insisted that no Palestinians have the status of "combatants" which would entail a right to fight. Instead, all Palestinians who engage in combat are regarded as direct participants in hostilities (DPH). Whereas Article 51(3) of the 1949 Geneva Conventions stipulates that a DPH forfeits his civilian immunity "for such time" as he takes up arms, Israel insists that Palestinian fighters have a continuous combat function. This is applied to mean that they can be targeted at any time and place, even when they are sleeping in a residential complex full of other civilians. Israel also claims that membership in Hamas is sufficient reason to deny Palestinians civilian immunity. This contravenes the principle of distinction, which aims to protect civilians, and purports that only combatants as well as DPHs during the time of their military engagement can be legitimately targeted. Despite the fact that Hamas is a political organization with a military wing, Israel views all Hamas members, political leaders, and indeed anyone on its payroll as legitimate military targets.

In 2008, Israel explicitly defended its attack on a class of 800 police cadets because it reasoned that during warfare, these civilian forces would join Hamas's military forces. This is a radical reading of international humanitarian law. The equivalent would be to consider nearly all Israelis aged eighteen or above as legitimate targets because they would be conscripted into the army or called to serve if they were part of its reservist troops. Moreover, it would mean that Hamas could target homes where Israeli army pilots slept at night away from the battlefield.

2) No Civilian Infrastructure

Similarly, Israel considers all Hamas-affiliated infrastructure, be it educational, governmental, or medical, to be a legitimate target. Israel's IDF Law Division explained that it authorized the targeting of Hamas-affiliated buildings because

...the way Hamas operates is to use the entire governmental infrastructure for the organization's terrorist purposes, so that the distinctions are a bit different. We adjust the targets to the case of a terrorist regime.

International humanitarian law requires that a belligerent assess, first, whether the infrastructure's purpose is primarily civilian or military in nature; second, whether destruction of that infrastructure has a definitive military advantage; and third, whether that advantage outweighs the civilian harm that would result from an attack. Instead, Israel's assessment was sweeping. It targeted government ministries, schools, electrical grids, and desalination plants. In other cases, it dispensed with proportionality assessments to target an entire apartment complex if so much as a single room was presumed to store weapons. In several instances, this meant targeting infrastructure based on mere speculation of combatant activity. A particularly notorious instance was the targeting of seven UNRWA schools sheltering thousands of Palestinian civilians where no weapons or fighters were present.

3) Warning of Impending Attack as a Carte Blanche

By virtue of issuing warnings for impending attacks, Israeli forces acted as if they were relieved of responsibility for civilian casualties. These warnings take the form of leafletting or "knocking on the roof" of a building about to be bombed with a smaller missile. They are, therefore, quite controversial because they foster fear and panic among the civilian population. In law, if a warning is ineffective and the civilian population cannot flee or take shelter, the attacking state maintains a duty to distinguish between civilians and combatants. This is necessary to balance the anticipated harm against the anticipated military advantage. Instead, Israel considered those who did not flee following a warning as involuntary human shields, whom they consider Hamas's victims of "terrorism." Israel has not been clear, however, whether these involuntary human shields constitute civilian harm to be considered in its proportionality assessment. Its military decisions reflect that they did not count: at least 142 families lost three or more members in attacks on residential buildings resulting in at least 742 casualties. Based on their investigation, the FIDH concluded that "rather than minimizing loss of civilian life, Israel's warning policy fomented massive forced displacement and spread confusion and fear among the population."

4) Israeli Soldiers' Lives Are Worth More than the Lives of Palestinian Civilians

Since 2005, Israeli legal advisers have advanced the notion that their soldiers' lives are worth more than the lives of enemy civilians. This radical proposition shifts the risk of warfare from soldiers to civilians in its calculus of military advantage in relation to collateral damage. Two of Israel's military doctrines enshrine this radical view. The Dahiya Doctrine explicitly seeks to inflict devastating violence upon civilian populations--including through the use of indiscriminate force--in an effort to deter future operations. The Hannibal Doctrine encourages soldiers to use indiscriminate force when an Israeli soldier is captured, even if it leads to the killing of the captured soldier, in order to avoid the consequences of negotiating for his release and to deter the capture of soldiers to be used as bargaining chips. This doctrine guided Israeli soldiers in the town of Shujai'ya where they killed sixty-six Palestinians in sixty minutes and in Rafah where they sealed a 1.5 mile radius and entrapped Palestinians in an aerial bombing campaign for two days resulting in 150 casualties.

5) Proportionality Is Forward-Looking

Finally, Israel's analysis of its military advantage is forward looking. Israel considers its military advantage in five-year increments, rather than in terms of the immediate consequences of attacks. This dramatically expands the calculations for the permissible use of force. Similarly, while Israel could not legally target agricultural farmland under a traditional proportionality assessment if there were no attacks launched from there, it claims the "right" to target those lands if they could possibly be used by Hamas and other groups to launch strikes in the next five years. That explains how Israel justified the destruction of 419 businesses, thirty-six fishing boats, forty-two thousand acres of farmland, and exacerbated Gaza's unemployment rate which was forty-five percent before the start of this most recent offensive and seventy percent among youth aged 20-24.

As grotesque as they may seem, these policies put forward by Israel are not necessarily illegal. That is because the laws of war are established by treaty as well as by custom. Custom is comprised of state practice and opinio juris, or what states deem to be legal. That means that what states do in practice, even if contrary to established treaty-based law, can become customary law. In the course of its practice, Israel is proposing these are necessary amendments to existing laws of war in order to meet the challenges of modern warfare characterized by irregular combat. Israel is explicitly trying to change the laws of war. Daniel Reisner, the head of Israel's IDF Legal Division until 2004, explains

International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy.

If not rebuffed legally and politically by other states, Israel's innovations, implemented against Gaza's besieged population, could eventually come to be accepted as custom. The United Nations initiated two investigations, the Commission of Inquiry into Operation Protective Edge writ large and its Board of Inquiry into Israel's attacks on seven UNRWA schools. Both reports have raised serious questions about Israel's practices but that will mean nothing if the reports are ignored by governments and advocates. Political action is necessary to make the reports' findings meaningful, otherwise they can be marginalized and forgotten. In light of such minimal protest at the top diplomatic levels, it is likely that Israel, together with US military forces, will continue trying to assert these practices as the "new normal" in asymmetric warfare. In fact, in its newly released Law of War Manual, the US Department of State explicitly makes some of these propositions. That means what we witnessed in Gaza in summer 2014 can be repeated and may not even be the worst of what is yet to come.