The McGowan Davis/Schabas Inquiry: The UN Legal Pogrom

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

The Principle of Precaution

"Even when a lawful attack is launched, precautionary measures are required of both the attacking party and the party being attacked, in order to avoid (or at least to minimize) the collateral effects of hostilities on civilian persons, the civilian population and civilian objects."

Applicable Law


A. Treaty Law


Article 57(1), Additional Protocol I of the Geneva Conventions:


"In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects."

Article 57(2)(a), Additional Protocol I of the Geneva Conventions:


"With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any 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."

Article 57(2)(b), Additional Protocol I of the Geneva Conventions:


"[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack 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."

Article 57(2)(c), Additional Protocol I of the Geneva Conventions:


"[E]ffective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit."

Article 57(3), Additional Protocol I of the Geneva Conventions:


"When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which maybe expected to cause the least danger to civilian lives and to civilian objects."

Article 58, Additional Protocol I of the Geneva Conventions:


"The Parties to the conflict shall, to the maximum extent feasible:
(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) avoid locating military objectives within or near densely populated areas;
(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations."

B. Customary Law


ICRC Customary Rule 15:


"In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects."

ICRC Customary Rule 17:


"Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects."

ICRC Customary Rule 20:


"Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit."

ICRC Customary Rule 22:


"The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks."

C. Learned jurists and commentary


Yoram Dinstein, "Distinction and Loss of Civilian Protection in International Armed Conflict," U.S. Naval War College International Law Studies, Volume 84, International Law and Military Operations, 2008:


"Pursuant to Article 57(2)(a)(ii) of Additional Protocol I, those who plan or decide on an attack must take all feasible precautions (taking into account all circumstances prevailing at the time), if not to avoid altogether, at least to minimize incidental losses to civilians or civilian objects. Yet the aspiration to minimize collateral damage cannot trump all other military inputs. Minimize the costs to civilians, yes, but not at all costs to the attacking force. There is no obligation incumbent on the attacker to sustain military losses only in order to minimize incidental losses to enemy civilians or civilian objects. Survival of the military personnel and equipment is an appropriate consideration when assessing the military advantage of an attack in the proportionality context... Other feasible precautions include-if circumstances permit-the issuance of effective advance warnings to civilians of an impending attack (in conformity with Article 57(2)(c) of Additional Protocol 129) . All the same, circumstances do not always permit the issuance of such warnings. Otherwise, surprise attacks would have had to be struck out of the military vocabulary."

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:


"a) All feasible precautions must be taken by all parties to minimise both injuries to civilians and damage to civilian objects.

b) When a reasonable choice between methods or means used in an attack exists for obtaining a similar military advantage, the methods or means expected to minimise the danger to civilians and civilian objects must be selected.

c) An attack must be cancelled or suspended if it becomes apparent that the target is not a fighter or military objective or is subject to special protection, or if the expected injury to civilians and/or the expected damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated.

d) When a reasonable choice is available between several military objectives for obtaining a similar military advantage, the objective expected to minimise the danger to civilians and civilian objects must be selected.

1. Neither Common Article 3 nor Additional Protocol II set forth any requirements for precautions in planning and carrying out attacks. However, such precautions are implicit in the general tenet, outlined in Article 13.1 of Additional Protocol II, that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations." This tenet was already recognized by customary international law at the time the Additional Protocols were drafted.

2. In the Tadic judgment , the ICTY's appellate chamber cited with approval UN General Assembly Resolution 2675's admonishment that 'in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations' and stated that it was 'declaratory of the principles of customary international law...in armed conflicts of any kind.'

3. The text of this Rule is largely based on Article 57 of Additional Protocol I. A provision requiring all feasible precautions to be taken to protect civilians can also be found in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which in itself repeats a provision contained in Article 3.4 of its original Protocol II.

In addition, a similar provision can be found in relation to cultural property in Article 7(b) of the Second Protocol to the Hague Cultural Property Convention. That this is a standard acceptable in the context of non-international armed conflict is apparent from the fact that both instruments apply to such conflicts.

4. 'Feasible precautions' are defined as 'those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.' Among the most evident of feasible precautions is the review of intelligence and other forms of information concerning the target and surrounding area Assessment of information should be based on all sources that are reasonably available at the relevant time.

5. When there is a choice of methods and means for conducting an attack, those that minimize civilian danger must be selected. For instance, a munitions factory may be attacked at night if its workers are not present. Similarly, a computer network attack against a communications facility may offer a reasonable alternative to a kinetic attack against the same facility with less risk to civilians and civilian objects. Or, when striking military objectives in an urban area, the use of precision munitions rather than unguided weapons may need to be considered. Comparable factors arise in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which, when considering the protection of civilians from weapons to which the article applies, refers to 'the availability and feasibility of using alternatives.'

6. Article 57 of Additional Protocol I does not contain an explicit reference to the reasonableness of choices facing the attacker. However, such a condition is implicit in the term "feasible" (practicable or practically possible), which appears twice in Article 57.2. Additionally, a requirement of "reasonable precautions" is contained in Article 57.4 in the context of military operations at sea or in the air.

7. Rule 2.1.2c has been drawn from Article 57.2(b) of Additional Protocol I and, with regard to cultural property, Article 7(d)(ii) of the Second Hague Protocol. These requirements apply primarily to those executing or controlling attacks. For example, the receipt of new target intelligence may reveal that the intended target is in fact not (or no longer) a military objective; initial intelligence might have been faulty or the military activities that previously occurred at the targeted facility may have ceased. The attacker may even come to realize that the target is an object that enjoys special protection under the law. Perhaps most commonly, an attacker may become aware of the presence of unexpected civilians in or near the target that would alter the proportionality calculation.

8. The requirement to select that military objective which best minimises danger to civilians and civilian objects whenever a similar military advantage will result from attack on those targets is drawn from Article 57.3 of Additional Protocol I. As an example, it may be possible to achieve the same military advantage by destroying railway bridges away from populated areas rather than attacking railway stations within such areas. Indeed, in the context of modern combat, rather than attacking the bridges, it may be possible to mount computer network attacks that disrupt elements of the railway control system without unduly affecting use by the civilian population.

9. Again, there is no requirement to select an objective if doing so would be militarily "unreasonable". As an example, one of the possible objectives may be so much more heavily defended than the others, that it would be unreasonable to select it as the target. Risk to the attacker is a relevant factor. Munitions availability is another. Aside from the fact that certain systems may be unavailable, the attacker will need to take into account future requirements and replenishment. For instance, when the number of precision-guided munitions is limited, it would be imprudent for the attacker to expend them early in the conflict without considering possible future needs and capabilities."

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


"To implement the rules protecting civilian persons and property, those who plan or decide upon an attack are bound to take certain precautions. They must do everything feasible to verify that the objectives to be attacked are definitely military objectives. They must choose means and methods of attack which avoid, or at least reduce to a minimum, incidental losses and damage which could be caused to civilians and civilian property. They must refrain from launching an attack if it seems clear that such losses or damage would be excessive in relation to the concrete and direct military advantage anticipated, and even cancel or suspend it if it becomes apparent that such is the case. Advance warning must be given in good time to the civilian population of attacks which may affect them when circumstances permit. Finally, the location of military objectives in the vicinity of civilian populations and civilian property shall be avoided as far as possible and all other necessary precautions must also be taken (shelters, signs, etc.)."

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


"[A]nother principle is that of precaution, which requires the attacking party to verify the military character of its targets and to give prior warnings, to the extent possible, to civilians in the vicinity of that target."


Israeli Actions


Israel Ministry of Foreign Affairs, "Israel Minimizes Civilian Casualties," July 24, 2014:


"Among the measures taken by the IDF to minimize the risk to Palestinian civilians are announcements about impending attacks in the form of phone calls, pamphlets and warning shots. In many cases missions have been aborted because civilians were identified dangerously close to the targets...


Phone Calls and Text Messages:

As part of its efforts to minimize civilian casualties in Gaza, the IDF makes phone calls and sends text messages to civilians residing in buildings designated for attack...


Leaflets:

The Israel Air Force has dropped leaflets over Gaza that warn civilians to avoid being present in the vicinity of Hamas operatives. These leaflets urge civilians to move away from Hamas targets, making clear Israel's intention to minimize civilian casualties. Since the operation began, Hamas has repeatedly instructed Palestinians to ignore these warnings.


Abandoning Air Strikes:

The IDF has aborted aerial strikes seconds before they were to be carried out, due to civilians being present at the site of the target... On July 9, Palestinians fled a Hamas target after the IAF fired a warning shot. Moments later, people in the surrounding area flocked to the roof of the target, acting as human shields. The IAF called off the strike to avoid civilian casualties."

Israel Defense Forces, "Special Report: Operation Protective Edge" (last updated: January 26, 2015):


"Throughout Operation Protective Edge, the IDF has made extensive use of tactics to avoid civilian casualties in the Gaza Strip. As the operation progresses, the IDF is gathering more evidence that Hamas takes advantage of the densely populated Gaza Strip and civilian population to protect themselves.

In a prime example of the IDF's precision capabilities, an airstrike was carried out on a car carrying three senior terrorists of Palestinian Islamic Jihad. The car was targeted perfectly, but the surrounding area and individuals were left unharmed....


The IDF Warns Before Striking:

As a warning tactic, the IDF targets buildings with loud but non-lethal bombs, meant to warn civilians that they are in the vicinity of a weapons cache or other target. This method is used to allow the residents to leave the area before the IDF targets the site with live ammunition...

On July 9, Palestinians fled a Hamas target after the IDF fired a warning shot. Moments later, other residents flocked to the roof to act as human shields. The Israeli aircraft called off the strike in order to avoid casualties. Despite these challenges, the IDF will continue to act against Hamas terror in order to defend its citizens...


Phone Calls and Text Messages:

As part of its efforts to minimize civilian casualties in Gaza, the IDF makes phone calls and sends text messages to civilians residing in buildings designated for attack.


Leaflets:

The Israel Air Force has dropped leaflets over Gaza that warn civilians to avoid being present in the vicinity of Hamas operatives. These leaflets urge civilians to move away from Hamas targets, making clear Israel's intention to minimize civilian casualties. Since the operation began, Hamas has repeatedly instructed Palestinians to ignore these warnings.


Roof-Knocking:

'Roof knocking' is when the IAF targets a building with a loud but non-lethal bomb that warns civilians that they are in the vicinity of a weapons cache or other target. This method is used to allow all residents to leave the area before the IDF targets the site with live ammunition.


Abandoning Air Strikes:

The IDF has aborted aerial strikes seconds before they were to be carried out, due to civilians being present at the site of the target... Despite the IDF's efforts to avoid civilian casualties, Hamas continues to operate from within civilian areas, encouraging Gazans to avoid IDF warnings in a deliberate attempt to create civilian casualties."

The International Institute for Counter-Terrorism (ICT) Report "Operation 'Protective Edge': A Detailed Summary of Events," July 12, 2014:


"Throughout Operation 'Protective Edge', as in previous IDF campaigns, the IDF made great efforts to minimize harm to the civilian population in the Gaza Strip. The IDF warned civilians prior to IAF strikes. The largest effort took place on July 17, when approximately 100,000 leaflets containing a warning message were dropped over Gaza and hundreds of thousands of citizens receive messages telling them to vacate their villages... On July 23, after Hamas continued firing rockets from inside a hospital, the IDF made an additional warning call; audio from the call confirms that the hospital was closed and that no medical staff or patients were in the building. After confirming that no civilians were present, the IDF attacked the compound and the terrorists within the hospital grounds in order to remove the threat posed to IDF forces."

Laurie R. Blank, "Getting the Law Right on the Israel-Hamas Conflict," The Hill, July 11, 2014:


"[R]eports have described Israel's comprehensive system of warnings to civilians before launching strikes in Gaza as "'contentious' and suggest that it is motivated solely by the desire to evade potential war crimes charges. Under the law of war, warnings are designed to protect civilians by giving them the opportunity to leave an area of hostilities and seek safety. Examples of such warnings include radio announcements, leaflets, or other generalized communications. Israel's use of individualized, specific warnings by phone and text goes far beyond what the law requires - it is hard to imagine how they could possibly be described as "contentious," instead of unprecedented or protective.

At the same time, the law of war does not require warnings before targeting enemy personnel - indeed, the law authorizes the use of lethal force as a first resort against enemy fighters and military objects. Imagine the absurdity of a system that required soldiers to give the enemy a chance to hide or plan an ambush by giving a warning before attacking: The United States did not warn German or Japanese soldiers before attacking them in World War II, nor should it have. Hamas militants are fighters, not civilians, and therefore are not entitled to protection from attack, just as Israeli soldiers are not protected from attack during conflict. It is the civilians of Gaza and Israel and every other conflict zone that the law seeks to protect, through a comprehensive web of protections and obligations."

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


"[T]he IDF executed a number of extraordinary and innovative methods in an attempt to further mitigate the risk to the civilian population. More than one million leaflets were dropped to warn Gazan civilians to leave a defined area of operations. Advancing ground forces fired smoke and illumination rounds to encourage civilian evacuation of pending areas of hostilities. Telephone calls were placed to homes targeted for airstrikes and text messages sent to their occupants hours in advance, to provide warning to civilians and directing evacuation of the building. Minutes before the actual strike, a small explosive would be fired at an unoccupied corner of the structure as a "knock on the roof" warning of an impending strike. Furthermore, consideration of the timing of attack, weapons selection and attack tactics was a consistent aspect of all deliberate targeting, in an effort to achieve desired attack effects while mitigating risk to civilians to the greatest extent feasible.

The IDF implemented these precautionary measures with full knowledge that they might – and often did – degrade the efficacy of an impending attack. Providing advance notice to Gazan civilians of impending areas of operations forfeited the tactical advantage of surprise critical to offensive ground operations and allowed evacuation of military personnel, equipment and/or munitions.

Despite going to such lengths to give civilians notice, the IDF still cancelled a number of lawful missions because of the presence of civilians (one Israeli official put this number at 200 instances, though there is no way to verify this independently). In one such example, Israel was not able to target a key Hamas center of gravity – its senior operational leadership – despite knowing their precise location at the Shifa Hospital, because of the gathering of Gazan refugees above Hamas's command and control facilities. Though some of these Hamas senior operational leaders were later reacquired, Israeli intelligence was unable to reacquire others.

While the effectiveness of some of these warning techniques can be debated, the fact that the IDF implemented them is an indicator of the extraordinary measures they took to comply with their LOAC [law of armed conflict] obligations. To this end, we must note that while LOAC does require an attacking commander to consider precautionary measures to mitigate civilian risk, there is no absolute obligation to use precautions. Such use is not required when doing so would not be feasible under the circumstances, a consideration that includes the loss or compromise of tactical advantage. As a result, it is often the case that precautionary measures in the form of warnings are not utilized because of the risk of ceding tactical advantage to an enemy. It is therefore noteworthy that the IDF took these extraordinary measures in many situations where they could have credibly invoked feasibility considerations to justify not doing so. This, combined with the other efforts implemented to ensure LOAC compliant operations, demonstrated to us Israel's overall good-faith commitment to the law...

It is our assessment as military professionals that IDF operations in Gaza exercised considerable restraint and exceeded the requirements of LOAC."

Elihu D Richter, Talya Markus, Alex Burnley and Tamar Pileggi, "Proportionality in the Gaza War: What Do Death Tolls and Missile Attacks in Gaza and Israel (Summer 2014) Tell Us?" Jerusalem Center for Genocide Prevention and Hebrew University Hadassah Genocide Prevention Program, January 30, 2015:


"Advanced Warning:

We note that before destroying buildings that housed military targets in and amongst civilians, the Israeli military gave advanced warning to inhabitants to evacuate the building. They did so by employing the "knock-on-the-roof" procedure – flyovers – and by phoning residents and warning them via direct conversation, SMS texting or recorded messages to evacuate the building.

There is no truth to the charge that Israel did not provide adequate advance warning time to the Palestinians in Gaza. These Israeli warnings gave Gazans five minute to one hour lead time – far more time than Israel's warning system gave its own civilians. By contrast, residents in Israeli towns close to the Gaza border had advance warning of 15 seconds or less to run for shelter."

Lazar Berman, "Top US general: Israel protected civilian lives in Gaza," The Times of Israel, November 7, 2014:


"Israel went to 'extraordinary lengths' to prevent civilian casualties during this summer's conflict in the Gaza Strip, the top US military leader said Thursday.

'I actually do think that Israel went to extraordinary lengths to limit collateral damage and civilian casualties,' said General Martin Dempsey, chairman of the Joint Chiefs of Staff, during a forum at the Carnegie Council for Ethics in International Affairs in New York City... Dempsey listed Israel Defense Forces measures such as the "roof-knocking" and the dropping of warning leaflets as part of their attempts to protect civilian lives.

'The IDF is not interested in creating civilian casualties. They're interested in stopping the shooting of rockets and missiles out of the Gaza Strip and into Israel,' Dempsey argued. The American general recounted that an American delegation visited Israel three months ago to learn lessons from the conflict, 'to include the measures they took to prevent civilian casualties and what they did with tunneling.'"