Israel & the International Criminal Court

Israel and the Rules of International Humanitarian Law: 3 – Distinction

Israel and the Rules of International Humanitarian Law:
Military Necessity, Humanity, Distinction, Proportionality, and Precaution

The Principle of Distinction

The principle of distinction requires that belligerents distinguish combatants from civilians and military objectives from civilian objects; parties to a conflict must direct their operations only against combatants and military objectives.

Applicable Law


A. Treaty Law


Article 48, Additional Protocol I of the Geneva Conventions:


"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 military objectives and accordingly shall direct their operations only against military objectives."

Article 50, Additional Protocol I of the Geneva Conventions:


"1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1); (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
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."

Article 51, Additional Protocol I of the Geneva Conventions:


"1. The civilian population and individual civilian shall enjoy general protection against dangers arising from military operations. . .
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. . .
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."

Article 52, Additional Protocol I of the Geneva Conventions:


"1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."

Article 27, Hague Convention IV:


"In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes."

Article 53, Additional Protocol I of the Geneva Conventions:


"Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals."

B. Customary Law


ICRC Customary Rule 1:


"The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians."

ICRC Customary Rule 2:


"Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."

ICRC Customary Rule 6:


"Civilians are protected against attack, unless and for such time as they take a direct part in hostilities."

ICRC Customary Rule 7:


"The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects."

ICRC Customary Rule 8:


"In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

ICRC Customary Rule 11:


"Indiscriminate attacks are prohibited."

ICRC Customary Rule 12:


"Indiscriminate attacks are those:
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."

ICRC Customary Rule 16:


"Each party to the conflict must do everything feasible to verify that targets are military objectives."


C. Jurisprudence


Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, July 8, 1996:


"The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets."

Constitutional Review of Additional Protocol II, Colombian Constitutional Court, December 14, 2011:


"One of the basic rules of international humanitarian law is the principle of distinction according to which the parties in conflict must differentiate between combatants and non-combatants, since the latter may never be the targets of acts of war. There is an elementary reason for this: although war seeks to weaken the enemy's military capacity, it may not target those who do not actively participate in the hostilities - either because they have never taken up arms (civilian population), or because they have ceased to be combatants (disarmed enemy troops) - since they are not military personnel. The law of armed conflicts therefore considers that military attacks against such persons are unlawful . . .
The distinction between combatants and non-combatants has fundamental consequences. Firstly, as stated in the rule regarding immunity of the civilian population . . . the parties have the general obligation to protect civilians from the dangers arising from military operations. From this follows . . . that the civilian population as such may not be the object of attack, and acts or threats of violence the primary purposes of which is to spread terror are prohibited. General protection of the civilian population from the dangers of war also implies that it is not in keeping with international humanitarian law for one of the parties to involve the population in the armed conflict, as in so doing it would turn civilians into participants in the conflict and thus expose them to military attacks by the adverse party . . ."

D. Learned jurists and commentary


Michael N. Schmitt, Charles H.B. Garraway, Yoram Dinstein, "The Manual on the Law of Non-International Armed Conflict With Commentary," International Institute of Humanitarian Law, 2006:


"The principle of distinction is the 'foundation on which the codification of the laws and customs of war rests.' It seeks to shield those who are not actively (directly) participating in armed conflict from its effects by prohibiting direct attacks upon civilians or objects that do not constitute legitimate military objectives...

The principle of distinction has roots stretching back to the Lieber Code. Since then, it has been confirmed in numerous legal instruments, including the Hague Regulations, which (as discussed above in the commentary to Rule 1.2.1, represent customary international law). The principle of distinction permeates the Geneva Conventions in the sense that those instruments set forth categories of protected persons. Additional Protocol I, in Article 48, refers to the principle of distinction as a "basic rule." Most recently, in the Nuclear Weapons Advisory Opinion, the International Court of Justice recognized distinction as one of two 'cardinal' principles of the law of armed conflict, the other being unnecessary suffering.

Today, it is indisputable that the principle of distinction is customary international law for both international and noninternational armed conflict. Article 13 of Additional Protocol II sets forth the general principle that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations." The application of the principle of distinction as a customary rule in non-international armed conflicts is emphasized in the ICRC Commentary to the Article. In Tadić, the ICTY Appeals Chamber also found the principle of distinction to be customary law in non-international armed conflict."

Leslie C. Green, The Contemporary Law of Armed Conflict, Manchester University Press 1993 (pg. 151-152):


"Indiscriminate acts by whatever weapons or means and in whatever theatres are forbidden, althrough for the purposes of Protocol I any attack from the sea or air must be directed against targets on land. Article 51(4) of Protocol I defines indiscriminate as those not directed at a specific military objective or employing means or methods which cannot be so directed or whose effects cannot be limited as required by the Protocol concerning protection of the wounded and sick, civilians and civilian objects, as well as prohibitions relating to protected places and excessive non-military damage, and which are of a nature likely to strike military objectives and civilians or civilian objects without distinction.

While Protocol I provides the first definition of indiscriminate attacks, customary law concerning the distinction metween military and non-military objectives an the rule regarding proportionality are directed to this end. Article 51(5)(b) expressly refers to the proportionality rule by giving as an example an attack 'which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.' This relates to command discretion in the light of all information, including the advantage to the overall military operation. To determine the specificity of an objective may require prior reconnaissance to ensure that it is in fact a military objective, and the attack must follow so soon afterwards that the attacking commander may be reasonably certain that what was observed to be a legitimate objective is likely to have remained so at the time of attack. If a number of clearly distinct and separate military objectives are located in an area containing a concentration of civilians or civilian objects, these may not be the subject of a single area attack, so that the area bombing attacks of World War II would now be illegal. This does not mean, however, that merely because a built-up area exists the larger area is no longer a military objective, but the civilian areas within it should be clearly defined, and the rule of proportionality should always be observed."

International Committee of the Red Cross, "Basic Rules of IHL," December 31, 1988:


"The prohibition of attacks on civilian persons and civilian property includes all acts of violence, whether committed in offence or defense. Attacks or threats of violence intended to terrorize the civilian Population are also prohibited. The prohibition includes attacks launched indiscriminately. In particular these are attacks which are not directed or which cannot be directed, because of the methods or means of combat employed, at a military objective. Also considered as indiscriminate are attacks which treat as a single military objective a number of clearly separated and distinct military objectives located in a town, village or other area containing a similar concentration of civilians or civilian property. The same applies to attacks which cause incidental civilian losses and damage excessive in relation to the concrete and direct military advantage anticipated."

Luis Moreno-Ocampo, "Letter of Chief Prosecutor of the International Criminal Court," February 9, 2006:


"Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)."

Marco Sassòli, "Legitimate Targets of Attacks Under International Humanitarian Law," Background Paper Prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 27-29, 2003:


"A dual-use object serves both civilian and military purposes. Particularly in times of war, the military uses civilian infrastructure, telecommunications and logistics also for military purposes. In industrialized countries power-generating stations are crucial for civilian access to clean water, but they also provide power to war industries – and in an integrated power grid all stations provide power to both. In the era of high technology, the construction of computer hardware and software may be essential for military purposes, while it may be nearly impossible to identify that technology actually destined or useful for military purposes. When a certain object is used for both military and civilian purposes, it may be held that even a secondary military use turns it into a military objective. However, if the effects on the civilian use of the object imply excessive damages to civilians, an attack on such a dual-use object may nevertheless be unlawful under the proportionality rule. In practice, it may admittedly be extremely difficult to determine the importance of the military use and of the military advantage in destroying the object, in particular if the military has priority access to all remaining infrastructure. Under the wording of Protocol I, an attack on a dual-use object is in any event unlawful if the effect on the civilian aspect is intended, but the respect of that particular rule is impossible to assess in the heat of the battle."

Israel Ministry of Foreign Affairs, "Behind the Headlines: Fighting Hamas Terrorism Within the Law," August 7, 2014:


"The principle of 'distinction' mandates that each party must ensure that it directs its attacks only against combatants and military objectives and abstain in all circumstances from targeting civilians or civilian objectives. Military objectives are those which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction offers a definite military advantage.

The rule of distinction further mandates that the parties to the conflict refrain from placing military objectives within or near densely populated areas. If a military objective, such as a missile launcher or weapons stockpile, is placed in the heart of a civilian area, it does not cease being a lawful military objective. The primary responsibility for civilian causalities arising from such 'shielding' of military objects lies with the party that deliberately placed civilians at risk."

The Jewish Institute for National Security Affairs, "2014 Gaza War Assessment: The New Face of Conflict," JINSA-commissioned Gaza Conflict Task Force, March 10, 2015:


"Property that is civilian in appearance and nature may also qualify as a lawful military objective when, due to the nature, location, purpose or use, the property makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Accordingly, deliberately attacking a civilian that has not forfeited protection from attack as the result of direct participation in hostilities, or civilian property that has not been transformed into a military objective, is strictly prohibited. However, pursuant to the laws of armed conflict, both civilians and civilian property may qualify as lawful military objectives, and when this occurs, they may be deliberately attacked."

International Committee of the Red Cross, "Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants:"


"In principle, the IDF (Israel Defense Forces) accepts and applies the principle of distinction. Israel's Manual on the Rules of Warfare (2006) states that 'a distinction has to be made between combatants and non-combatants.' Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at § 20 (11 December 2005)."


Israeli Actions


IDF Military Advocate General [MAG] Corps, "Operation Protective Edge: Examinations and Investigation," September 10, 2014:


"Legal Framework Applicable to Aerial Strikes against Terrorists: As part of Israel's general commitment to international law, aerial strikes against terrorists are conducted in strict compliance with LOAC [Law of Armed Conflict]. In accordance with LOAC, it is permissible to attack combatants as well as civilians taking a direct part in hostilities. The State of Israel directs its attacks only against lawful targets. More particularly, Israel views Article 51(3) of the First Additional Protocol to the Geneva Conventions as reflecting customary international law. Accordingly, Israel's position is that it is permissible to attack civilians during such time as they take a direct part in hostilities."

1) "Incident involving an alleged aerial strike on a vehicle marked 'TV' in Gaza City (9 July 2014):

The MAG Corps received reports, as well as complaints from human rights organizations, regarding allegations that an aerial strike was carried out in the Rimael neighborhood of Gaza City on July 9, 2014, against a vehicle marked 'TV', and which resulted in the death of one person alleged to be a journalist (Ahmed Abdullah Mahmoud Shabab). Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism.

The material collected by the FFA Mechanism, and its findings, which were reviewed by the MAG, indicated that the strike was carried out against a vehicle which intelligence information and direct evidence indicated was being used to transport weaponry, intended for use against IDF forces the same day.

It should be noted that at the time of the strike the IDF forces could not discern whether the vehicle was marked 'TV'. It appears that the vehicle was marked 'TV' in order to mask the military use made of the vehicle to transport weaponry. In any event, in light of the military use made of the vehicle for the purposes of transporting weaponry, the marking of the vehicle did not alter the lawfulness of the strike. In addition, the MAG found that the strike procedure was carried out with an effort to minimize incidental harm, and to that end, the strike on the vehicle was at one point delayed when the vehicle was suspected to be in the vicinity of civilians. The MAG found that the strike process conformed with the requirements of Israeli law and international law and that there was no deficiency in the actions of the IDF forces involved. As a result, the MAG ordered that the case be closed without further actions."


2) "Allegation Concerning a Strike on a Red Crescent Station in Jabalya and Harm Caused to Red Crescent Personnel (9 July 2014)

The MAG Corps received allegations from a number of NGOs that in the nighttime hours of 9 July 2014, a number of persons working at a Red Crescent station were wounded (the various reports differ with regard to the number of wounded persons, with allegations starting from three wounded and varying up to 15 persons, and also differ with regard to the severity of their wounds, with some allegations of minor wounds caused and others claiming moderate wounds caused) and three ambulances were damaged, allegedly as a result of an IDF strike on agricultural property near the station. Subsequently, in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

According to the factual findings collated by the FFAM and presented to the MAG, Palestinian terrorist organizations had positioned rockets aimed at Israel in underground rocket launching sites a few tens of meters away from the Red Crescent station. The location of the station was known to the IDF forces and was marked in the IDF's operational systems as a "sensitive site", which receive special consideration. The rockets and the launchers that were hidden in the underground launch site next to the station were attacked by the IDF, together with an effort taken to avoid any harm to civilians and to the nearby Red Crescent station. This included selecting the time for attack (at nighttime) and employing appropriate munitions, in an effort to ensure that any damage caused to adjacent buildings, and persons potentially located inside them, would be minor, at most. In actuality, it appears that besides the destruction of the military target, incidental damage was caused to the Red Crescent station, workers inside the station were possibly injured, and ambulances at the location suffered indirect damage resulting from the attack – seemingly as a result of objects that were thrown by the force of the blast.

After reviewing the factual findings and the material collated by the FFAM, the MAG found that the targeting process accorded with Israeli domestic law and international law requirements, and included significant efforts to minimize harm to civilians. The MAG further found that the damage caused to the Red Crescent station was unavoidable considering the proximity of the rockets placed by the Palestinian terror organizations only a few tens of meters from the station.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

At the same time, the MAG recommended to the relevant IDF operational entities that they consider specific amendments to the target planning process, which may assist in further minimizing the potential collateral damage resulting from IDF strikes on military objectives located in close proximity to sensitive sites."


3) "Allegation Concerning a Strike on an Ambulance in Bet Hanoun (22 July 2014)

Correspondence from an NGO alleged that in the morning hours of 22 July 2014, the IDF "struck three ambulances that were involved in the evacuation of wounded persons east of the industrial area of Bet Hanoun. One of the wounded persons in an ambulance was killed and the three vehicles were seriously damaged". As a result, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

Following a thorough review conducted by the FFAM with all the forces identified as operating in the relevant area, such a strike by IDF forces operating in that area could not be identified. Likewise, and in contrast to other complaints concerning similar incidents, no report could be located from the time of the incident indicating that harm had been caused to a rescue crew. In turn, the FFAM did not dismiss the possibility that damage, insofar as such occurred, was the result of activity other than that of the IDF. Under these circumstances, considering the complaint could not be sufficiently substantiated and insufficient details existed in order to identify the incident, the MAG ordered that the case be closed. However, the MAG instructed that if additional information in the future allows for sufficient identification of the incident, a further examination of the incident will be considered."


4) "Allegations Concerning Attacks on Al-Wafa Hospital (11-23 July 2014)

In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that the Al-Wafa Hospital was unlawfully attacked by IDF forces on a number of occasions between 11-23 July 2014. As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, Palestinian terrorist organizations used the hospital compound for a range of varied and multiple military purposes throughout the period noted above, as well as beforehand. Such, it was found that Hamas used structures in the hospital for positioning surveillance devices so as to track IDF operational activity, that the hospital structures were used on multiple occasions as firing positions towards IDF forces, and that rockets were launched from the immediate vicinity of these structures. Further, according to materials presented to the MAG, reliable information indicated that the sole use that was made of the hospital, from a certain date onwards, was for the military purposes of Hamas, by Hamas' military operatives. At this point, the hospital had already been evacuated of all civilians – patients and staff.

According to the factual findings, on a number of occasions during this period IDF forces were forced to return immediate fire, in a discerning and precise manner, towards sources of attacking fire that posed a serious and immediate threat to those forces. The MAG is not aware of any civilian harm resulting from these incidents. At the same time, in light of the ongoing and widespread military use made of the hospital by Hamas, a number of warnings were provided by the IDF to official entities in the Gaza Strip and to the Palestinian Authority, as well as to international organizations, requiring that the military use of the hospital be ceased.

On 23 July 2014, after these warnings went unheeded and after fire was again directed at IDF forces from the hospital, it was decided to attack the hospital. The attack was only carried out after the IDF had ensured a number of times, that all civilians had evacuated the hospital and that the hospital was being used at that time solely for military purposes.

After reviewing the factual findings and the material collated by the FFAM with regard to each and every incident of attack, the MAG found that, with exception to one instance which will be discussed below, the attacks were conducted in accordance with Israeli domestic law and international law requirements. The attacks were directed against military objectives, while adhering to the requirements of the principle of proportionality. Likewise, the MAG found that the attack was executed only after various precautions were undertaken, with significant efforts to minimize civilian harm. With regard to the incidents where IDF forces were faced with a serious and immediate threat to their lives, the forces returned fire immediately towards the source of the attacking fire, in a precise and discerning manner, and without harming civilians. The structures in the hospital compound were attacked and destroyed only after advance warning had been provided as required under international law, and no civilians were present at the time. The decision to attack was made in a careful and reasoned manner by the authorized authorities, after Hamas disregarded advance warnings and continued in its military use of the hospital compound, thereby resulting in the loss of the special protection from attack provided to the hospital under international law.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

At the same time, the MAG found that one of the attacks, occurring on 11 July 2014, and directed against military surveillance equipment placed by Hamas on the roof and uppermost floor of one of the hospital's buildings, was seemingly carried out without advance warning. It should be noted that this attack was directed at a defined point on one of the buildings in the hospital compound, where it was known that no patients or medical staff were present at the time, and that the attack was planned and carried out in such a manner so as to strike only the surveillance equipment and its immediate vicinity, without causing any collateral damage to civilians or adjacent buildings. Since this incident did not establish a serious violation of the law of armed conflict which requires criminal investigation, and in light of the other circumstances of the incident, the MAG found that there were no grounds for a reasonable suspicion of criminal misconduct in this incident. However, the MAG recommended that the Chief of General Staff examine the reasons why the relevant authorities did not provide the required advance warning and to take measures where deemed appropriate. In addition, the MAG recommended that the Chief of General Staff provide a clarification in the relevant IDF regulations reflecting the requirement to advance warning prior to an attack against a medical facility being used for military purposes."


5) "Allegation Concerning a Strike on the Al-Shifa Hospital and a Park in the Shati Refugee Camp in the Gaza Strip (28 July 2014)

Various media reports alleged that on 28 July 2014, an incident occurred involving a strike on medical clinics belonging to the Al-Shifa Hospital, as well as a strike on a park where children were present in the Shati Refugee Camp, and as a result of which ten persons (including nine children) were killed and tens injured. Some of these reports alleged that the strikes were carried out by the IDF. As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

Following a thorough review conducted by the FFAM, such a strike by IDF forces could not be identified. However, Israel's technical systems recorded in real-time the path of a salvo of missiles fired from within the Gaza Strip, seemingly by Hamas or Palestinian Islamic Jihad, which landed in the medical clinics and in the Shati Refugee Camp at the time of the alleged incident. Under these circumstances, and in light of the fact that the strike on the hospital was the result of rocket fire from Palestinian terrorist organizations, the MAG ordered the case to be closed."


6) "Allegation Concerning a Strike on the UNSCO Headquarters in Gaza City (29 July 2014)

In a report received by the MAG in real time, it was alleged that the UNSCO (United Nations Special Coordinator for the Middle East Peace Process) headquarters were damaged by IDF shelling. The report claimed that several shells fell in the headquarters compound, which caused damage to buildings in the compound and one of the organization's armored vehicles (it was not claimed that any persons were harmed in the incident). As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, no high-explosive shells were fired by IDF forces in that area during that time, rather only illumination shells, intended to illuminate the area as part of an effort to disrupt mortar and rocket fire towards IDF forces and Israeli territory. According to an assessment of the relevant operational authorities, it is possible that the UNSCO headquarters may have been damaged as a direct or indirect result of the ogive (casings) of such shells falling randomly within the compound. The FFAM found that at no time during the Operation were the UNSCO headquarters directly targeted.

The MAG found that the use of illumination shells in this incident was employed for a proper military objective and was conducted in accordance with Israeli domestic law and international law requirements. The incidental and unintended damage to the UNSCO headquarters is a regrettable though possible outcome, considering the fierce and intense fighting taking place in the Gaza Strip (insofar as the damage was indeed caused by the illumination shells). Nonetheless, such incidental damage does not affect the legality of the employment of the illumination shells.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident."


7) "Allegation Concerning Strikes on a School in Al-Bureij and an UNRWA School in Nusseirat (25 July 2014)

In an operational report received by the MAG Corps, it arose that on 25 July 2014, IDF forces struck a school in Al-Bureij and an UNRWA school in Nusseirat (in an initial report it was alleged that as a result of one of these strikes, five civilians were injured, however, from a later report it arose that there were no individuals harmed in this incident). Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, the incident started with an attack carried out on 25 July 2014 against IDF forces in the Gaza Strip that were located in an area to the East of Al-Bureij, by means of mortar shells and anti-tank missiles. During this incident, first sergeant Guy Levi was killed, and another Israeli soldier was injured. Concurrently, high-trajectory fire was also being launched at other forces that were located within the same area of operations, including fire which resulted in a direct hit on a structure in which one of the brigade's companies was located. IDF technological systems identified the source of this fire in real-time as emanating from two sites – the mortar fire and anti-tank rockets from the area of Al-Bureij, very close to a school; and mortar fire from the area of Nusseirat close to an UNRWA school and next to (at a distance of a few meters away) an UNRWA center which provided sanitation, aid, welfare, food distribution and employment services. This area, which is normally a residential area, was known to the IDF forces as a hub of Hamas' and Palestinian Islamic Jihad's military activity over the course of the Operation.

In an attempt to stop the attack and suppress the fire, IDF forces carried out targeted tank fire towards certain spots in the vicinity of the school in Al-Bureij, which were identified as the sources of the fire, all the while being careful to avoid hitting the school itself. Apparently, as a result of one of the projectiles fired, the wall surrounding the school was struck (though no shells landed within the school). As mentioned, a later report did not allege that any civilians were injured by this strike.

At the same time, the IDF carried out targeted aerial strikes in Nusseirat against individuals who had been identified as directly participating in the aforementioned high-trajectory fire on IDF forces. Apparently, as a result of one of these strikes, carried out against a militant who was at a distance of a few tens of meters from the UNRWA school in Nusseirat, the wall surrounding the school was struck (though no fire hit the school itself). Again, a later report did not allege that any civilians were injured by this strike.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decisions regarding the strikes were taken by the competent authorities. The strikes were aimed against lawful targets – militants who were directly participating in hostilities, and who fired on IDF troops. The strikes complied with the principle of proportionality, as at the time the decision was taken it was considered that the collateral damage expected from the strikes would not be excessive in relation to the military advantage anticipated from the strikes. Moreover, the strikes were carried out while undertaking precautionary measures which aimed to mitigate the risk of civilian harm and damage to UNRWA facilities, the existence of which were known to the forces, despite what appears to be an attempt by terror organizations to misuse these sites in order to fire upon IDF forces.

In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident."

Alan Baker, "The Latest Hamas-Israel Confrontation - Some Pertinent Legal Points," Jerusalem Center for Public Affairs, July 24, 2014:


"Israel's actions are directed towards one strategic and tactical purpose – not to punish the population but to halt the indiscriminate rocket fire and use of infiltration tunnels to carry out acts of terror against the civilian population.

While international law bars 'collective punishment,' none of Israel's combat actions against Hamas constitute collective punishment, whether in the form of imposition of penalties on individuals or groups on the basis of another's guilt, or the commission of acts that would otherwise violate the rules of distinction and/or proportionality.

Deliberate Targeting of Residences:

Israel is being falsely accused by the United Nations and others of deliberately and willfully targeting residences...

The use of houses, homes and other residential structures for military purposes endangers them and render them as legitimate military targets under international law.

Article 52(2) of the First Geneva Protocol specifically refers to the obligation to limit attacks to military objectives – "objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage;"

In order to accurately determine military targets, the IDF employs advanced methods, including multiple levels of intelligence, the provision of legal advice; and extensive prior training provided to operational commanders. Even when a house is considered by all relevant legal criteria to be a legitimate military target, the Israeli forces minimize potential harm to the surrounding civilian population through real-time visual coverage in order to assess the civilian presence at a target; provision of advance warning before striking a target; and the careful choice of weaponry and ammunition in order to minimize harm to civilians.

As such, Israel has no policy of deliberately targeting civilians or civilian property, and makes every effort to give effective advance warning of impending strikes that could potentially affect the civilian population.

Despite the deliberate policy and practice of Hamas to forcibly use civilians, including children, to shield their rocket and weapons emplacements, Israel has gone to great lengths in responding to the Hamas rocket attacks to ensure minimal harm to such civilians. This includes providing early warnings to persons residing or located in, or in the vicinity of houses targeted because of their use for purposes of planning acts of terror, storing weapons or as rocket emplacements, and public appeals to non-combatants to distance themselves from such targets."

David Daoud, "Everything You Need to Know about International Law and the Gaza War," The Tower, September 2014:


"Combatant and civilian are clearly differentiated in the IDF's Code of Ethics, even when blurred lines make such distinctions difficult to define. The IDF does not, as a policy, target civilians or their objects. Its Doctrine's concept of 'Purity of Arms' forbids soldiers from harming non-combatants and obligates them to 'do all in their power to avoid causing harm to their lives, bodies, dignity and property.' Since 2009, the IDF has updated its already exacting urban-war doctrine to further protect civilians, and, through the Military Advocate General Corps, trains its soldiers to comply with the principle of distinction."