The McGowan Davis/Schabas Inquiry: The UN Legal Pogrom

Hamas and the Rules of International Humanitarian Law:
Distinction, Precaution, and the Use of Human Shields

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."

Hamas Actions

Israel Ministry of Foreign Affairs, "Violations of the Law of Armed Conflict, War Crimes, and Crimes Against Humanity Committed by Hamas and Other Terrorist Organisations During Operation Protective Edge," January 28, 2015:

"Throughout Operation Protective Edge (hereinafter: the '2014 Gaza Conflict'), Hamas and other Palestinian terrorist organisations in Gaza intentionally and systematically employed military strategies designed to maximise harm to civilian life and property, both in Israel and in Gaza. These military strategies gave rise to violations of the Law of Armed Conflict, war crimes, and crimes against humanity...

Aside from inflicting damage on Israeli civilians, these rocket and mortar launches recklessly endangered Palestinian civilian life and property inside Gaza. For example, in the weeks leading up to the 2014 Gaza Conflict, an errant rocket fired towards Israel landed short in Gaza, killing a three-year-old girl and injuring four of her family members. During the 2014 Gaza Conflict itself, on July 13 and July 15, rockets fired towards Israeli territory struck two of the ten power lines supplying Gaza with electricity from Israel, leaving 70,000 Palestinian residents of northern Gaza without power. Two weeks later, on July 28, rockets fired towards Israel landed short, striking Al-Shifa Hospital and a playground in Al-Shati refugee camp, killing 10 civilians. In total, over 250 failed launches landed within Gaza, contributing substantially to the damage to civilian life and property in Gaza incurred during the 2014 Gaza Conflict...

During the 2014 Gaza Conflict, Hamas and other terrorist organisations embedded military assets and operations within densely-populated civilian areas in Gaza as a matter of military strategy. Rather than utilizing the less populated areas of Gaza where they operate during lulls in hostilities, these groups moved their assets and operations to built-up civilian areas in order to shield them from IDF attack. In employing this strategy, these organisations failed to take any measures to protect their own civilian population from the dangers of military operations. To the contrary, they actively exploited the presence of Gazan civilians to conduct hostilities...

Customary international law obligates parties to an armed conflict to take various steps to mitigate, to the extent feasible, the harm to the civilian population resulting from the dangers of military operations. This basic precautionary requirement applies to a party to a conflict with respect to its own population, operating on a foundational assumption of the Law of Armed Conflict that parties are sufficiently concerned with sparing their own populations to act in their populations' best interests. The embedding strategy employed by Hamas and these terrorist organisations defies this basic assumption. Not only did Hamas and other terrorist organisations in Gaza fail to take any precautions to mitigate harm to the civilian population, they went to great lengths to deliberately assimilate their military operations within civilian life, thus violating customary international law...

Hamas used its embedding strategy not just to obtain a military advantage, but to exacerbate its own civilians' suffering for political gain. According to the Al-Qassam Brigades urban-combat manual, increasing damage to civilian property "increases the hatred of the citizens towards the attackers [the IDF] and increases their gathering [support] around the city defender [Hamas].' The manual goes on to explain that fighting among civilians has the benefit of causing 'difficulties' for the IDF in 'providing assistance and first aid to citizens.' Thus, paradoxically, Hamas took measures to harm its own civilian population in order to win its support for the military effort. Hamas' disregard for the welfare of its own civilian population was further confirmed by an additional Al-Qassam Brigades pamphlet found by the IDF during the ground operation, which stated that 'civilian deaths ... have no impact on our morale. To the contrary, this strengthens our commitment, in the knowledge that an increase in the number of civilian fatalities is likely to have negative ramifications on the enemy [the IDF], and he [the IDF] will act to shorten the length of the fighting.' ...

Hamas and other terrorist organisations in Gaza extensively and deliberately used civilian buildings and facilities for military purposes throughout the 2014 Gaza Conflict, including hospitals and health clinics, U.N. facilities, schools, mosques, and civilian homes and residential buildings. In doing so, these organisations defied the customary international law obligation requiring a party to the conflict to take feasible measures to mitigate the harm to its civilian population resulting from the dangers of military operations. By exploiting civilian structures for military operations, these organisations knowingly turned these structures into legitimate objects of attack, and greatly increased the risk of incidental damage to nearby civilians and civilian structures. Despite the extensive precautions taken by the IDF to avoid or minimise damage to civilian life and property, the strategy of conducting hostilities from densely-populated civilian areas significantly exacerbated damage..."

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

"Hamas Uses all of Gaza for Terror Activity:

Hamas fires rockets, hides weapons, digs tunnels, and operates from every area in Gaza. The organization has turned the Gaza Strip into a fortress for terror activity, knowingly putting its civilians and infrastructure in danger.

During Operation Protective Edge, Hamas has used populated areas of Gaza to launch attacks against Israel. The terrorist organization knows that rocket launching sites may be the targets of IDF counterstrikes. Nevertheless, Hamas has never stopped firing rockets from mosques, school, hospitals and other civilian areas.

Hamas is responsible for the destruction in civilian areas in Gaza. Not only did Hamas draw the IDF into a battle by refusing to cease its indiscriminate rocket fire on Israelis, Hamas also brought the battle right into the heart of Gaza's civilian areas.

The IDF would not strike targets in civilian areas if Hamas had not embedded its terrorist infrastructure there. The IDF only intentionally attacks military targets. Unfortunately, Hamas never ceased to fire from populated civilian areas. Moreover, Hamas knows that even though the IDF does all it can to minimize civilian harm, including by providing effective advance warning where feasible, their rockets could eventually bring counterfire, in order to protect IDF forces and the Israeli civilian population..."