Legal Obligations
The conduct of hostilities between Israel and Hamas in the Gaza Strip is regulated by international humanitarian law (the laws of war). The rules on the methods and means of armed conflict are found in the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I) and the 1907 Hague Regulations.[71] Most of the relevant provisions of both treaties are considered reflective of customary international humanitarian law, legal rules based on established state practice that are binding on all parties to an armed conflict, whether states or non-state armed groups.
The fundamental tenets of the laws of war are "civilian immunity" and the principle of "distinction,”[72] While humanitarian law recognizes that some civilian casualties are inevitable, it imposes a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives. Deliberate attacks against civilians are prohibited.[73] Civilians lose their immunity from attack when and only for such time that they are directly participating in hostilities.[74]
International humanitarian law also protects civilian objects, which are defined as anything not considered a military objective.[75] Prohibited are direct attacks against civilian objects, such as homes, apartments, places of worship, schools, and hospitals—unless they are being used for military purposes.[76]
Parties to a conflict must not make threats or commit acts of violence "the primary purpose of which is to spread terror among the civilian population."[77] Reprisals that involve attacks against the civilian population are also prohibited.[78]
The laws of war also prohibit indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Thus, if a party launches an attack without attempting to aim properly at a military target, or in such a way as to hit civilians without regard to the likely extent of death or injury, it would amount to an indiscriminate attack.[79]
International humanitarian law requires that the parties to a conflict take constant care during military operations to spare the civilian population and to take all feasible precautions to avoid or minimize the incidental loss of civilian life, as well as injury to civilians and damage to civilian objects.[80] Feasible precautions are "those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”[81] In its authoritative Commentary on Protocol I, the International Committee of the Red Cross explains that the requirement to take all "feasible" precautions means, among other things, that the person launching an attack is required to take the steps needed to identify the target as a legitimate military objective "in good time to spare the population as far as possible."[82]
International humanitarian law does not prohibit fighting in urban areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Forces deployed in populated areas must avoid locating military objectives near densely populated areas,[83] and endeavor to remove civilians from the vicinity of military objectives.[84] Belligerents are prohibited from using civilians to shield military objectives or operations from attack. "Shielding" refers to purposefully using the presence of civilians to render military forces or areas immune from attack.[85] However, even if one party considers opposing forces responsible for having located legitimate military targets within or near populated areas, it is not relieved from the obligation to take into account the risk to civilians when conducting attacks.
Rocket Attacks on Populated Areas and Individual Criminal Responsibility
Serious violations of international humanitarian law committed willfully, that is, deliberately or recklessly, are war crimes, and give rise to individual criminal responsibility.[86] War crimes include intentional or indiscriminate attacks on civilians, as well as attacks in which the expected civilian loss is disproportionate compared to the anticipated military gain. Individuals may also be held criminally liable for attempting to commit a war crime, as well as planning, instigating, assisting in, facilitating, aiding or abetting a war crime.[87]
Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[88]
As noted, Hamas and other armed groups have publicly taken responsibility for a large number of rocket attacks on civilians in Israel, including the three fatal attacks on Israeli civilians documented in this report. Leaders of Hamas and other armed groups have publicly expressed their intention to target Israeli civilians, seeking to justify their attacks as lawful reprisals for Israeli attacks against Palestinian civilians.[89] Hamas leaders have also claimed that rocket attacks against Israeli civilians are justified by the “right to resist” Israeli occupation.[90] Such statements, in the context of deliberate or indiscriminate rocket attacks on Israeli civilians documented in this report, are evidence of war crimes. Hamas authorities have not, to the knowledge of Human Rights Watch, held to account any members of Hamas or other armed groups in Gaza for unlawful rocket attacks against population centers in Israel.
[71]See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978; Hague Convention IV - Laws and Customs of War on Land: 18 October 1907, 36 Stat. 2277, 1 Bevans 631, 205 Consol. T.S. 277, 3 Martens Nouveau Recueil (ser. 3) 461, entered into force Jan. 26, 1910.
[72]See Protocol I, arts. 48, 51(2), and 52(2).
[73] Protocol I, article 48, states, "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."
[74]Protocol I, art. 51(3).
[75]Ibid., article 52(1). Military objectives are combatants and those objects that "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." Ibid., art. 52(2).
[76]Protocol I, art. 52(2).
[77]Protocol I, art. 51(2).
[78]Protocol I, art. 51(6). Reprisals have been defined as an otherwise unlawful action "that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to unlawful acts of an adversary." See ICRC, Customary International Humanitarian Law, p. 513.
[79]Articles 51(4) and 51(5) of Protocol I enumerate five kinds of indiscriminate attacks: those that 1) are not directed at a "specific military objective," 2) cannot be directed at "a specific military objective," 3) have effects that violate the Protocol, 4) treat separate urban military objectives as one (carpet bombing), or 5) violate the principle of proportionality.
[80]Protocol I, art. 57.
[81]See Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1342 U.N.T.S. 171, 19 I.L.M. 1534, entered into force Dec. 2, 1983, art. 1(5).
[82]ICRC, Commentary on the Additional Protocols, pp. 681-82.
[83]Protocol I, art. 58(b).
[84]Ibid., art. 58(a).
[85]Ibid., art. 51(7).
[86]See ICRC, Customary International Humanitarian Law, pp. 568-74.
[87]See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), p. 554.
[88]See ICRC, Customary International Humanitarian Law, rule 153.
[89]See “Summary,” above, quoting statements by Abu Obeida and Mahmoud Zahar. The former was reported by Hanan Awarekeh, “Hamas Ready for Battle; Victory’s coming, ‘God willing,’” Al-Manar, January 5, 2009, http://www.almanar.com.lb/NewsSite/NewsDetails.aspx?id=69218&language=en, accessed April 29, 2009. Zahar’s statement was reported by Ethan Bronner, “Israelis push deep into Gaza City,” International Herald Tribune, January 5, 2009, http://www.iht.com/articles/2009/01/05/mideast/mideast.php?page=1U.S, accessed March 16, 2009.
[90]See “Summary,” above, quoting an interview with Khaled Meshal, “Transcript: Interview with Khaled Meshal of Hamas,” May 5, 2009, New York Times, http://www.nytimes.com/2009/05/05/world/middleeast/05Meshal-transcript.html.