IV. International Legal Standards

The armed conflict between Israel and Hamas from December 27, 2008, to January 18, 2009, was regulated by international humanitarian law (the laws of war). International humanitarian law imposes upon warring parties legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. It is applicable to all situations of armed conflict, without regard to whether the conflict itself is legal or illegal under international law (i.e., whether a given party is an aggressor or a defender), and whether those fighting are regular armies or non-state armed groups. Individuals who willfully commit serious violations of international humanitarian law can be prosecuted for war crimes before national or international courts.[52]

The fundamental tenets of international humanitarian law are "civilian immunity" and "distinction." Parties to a conflict are required to distinguish at all times between combatants and civilians, and to direct attacks only against combatants and other military objectives. Deliberate attacks on civilians and civilian objects are strictly prohibited.

Military objectives include persons taking a direct part in hostilities, and "those objects which by their nature, location, or purpose 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."[53]

Civilians are protected from attack unless and for such time as they take a direct or active part in the hostilities. For example, civilians firing weapons or loading ammunition during a firefight, or actively serving as spotters for artillery, may be attacked. However, civilians who for example merely observe belligerent forces or who remain in a combat zone are not lawful targets of attack.  

In the conduct of military operations, warring parties must take constant care to spare the civilian population and civilian objects from the effects of hostilities, and are required to take precautionary measures with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects. These precautions include:

• Doing everything feasible to verify that the objects to be attacked are military objectives and not civilians or civilian objects.[54]
• Taking all feasible precautions in the choice of means and methods of warfare to minimize loss of civilian life.[55]
• Doing everything feasible to assess whether the attack will cause loss of civilians and civilian objects disproportionate to the direct and concrete military advantage anticipated.[56]
• Doing everything feasible to cancel or suspend an attack if it becomes apparent that a target is not a military objective or would result in disproportionate civilian loss.[57]
• When circumstances permit, giving effective warning of attacks that may affect the civilian population.[58]

International humanitarian law does not prohibit fighting in urban or residential areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. These include: avoiding locating military objectives within or near densely populated areas; endeavoring to remove the civilian population from the vicinity of military objectives; and not deliberately seeking to prevent attacks on one's forces by mingling with civilians or using them as "human shields."[59]

Individuals who plan, order, or commit deliberate attacks on civilians, or attacks that willfully – that is, deliberately or recklessly -- fail to discriminate between combatants and civilians, are responsible for war crimes. Israel, like all parties to an armed conflict, is obligated under international law to investigate alleged war crimes, and prosecute those responsible.[60]

Unmanned aerial drones, such as those used by the IDF, are covered by the same rules grounded in the laws of war as other weapons systems. Personnel who operate drones are no less legally responsible for the use of drones in combat than are other soldiers operating other weapons and weapons systems.