V. International Legal Standards
International humanitarian law, the laws of war, governs fighting between Israel and Palestinian armed groups in the Gaza Strip that rises to the level of armed conflict. These rules bind all parties to an armed conflict, whether they are states or non-state armed groups.
The laws of war governing the methods and means of warfare are primarily found in the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I).[94] Although Protocol I does not formally apply to the armed conflict in Gaza,[95] most of its provisions are considered reflective of customary law.[96] Also applicable is article 3 common to the four Geneva Conventions of 1949 (Common Article 3), which concerns the treatment of civilians and combatants who are no longer taking part in the fighting.[97]
Central to the law regulating conduct of hostilities is the principle of distinction, which requires parties to a conflict to distinguish at all times between combatants and civilians. Operations may be directed only against military objectives, including combatants; civilians and civilian objects may not be the target of attack.[98]
The principle of distinction is also enshrined in Common Article 3, which imposes legal obligations on all warring parties to ensure humane treatment of persons who were not, or are no longer, taking an active role in hostilities. Such persons, including combatants who have surrendered and those placed hors de combat (out of combat) by sickness, wounds, capture, or any other cause, shall in all circumstances be treated humanely.
Civilians are protected from attack unless and for only such time as they take a direct part in hostilities.[99] In case of doubt whether a person is a civilian, that person is considered a civilian.[100]
The meaning of “taking a direct part in hostilities” has never been fully clarified. According to the ICRC Commentary to Protocol I, “direct participation [in hostilities] means acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces,” and includes acts of defense.[101]
Direct participation in hostilities “implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.”[102]
Civilians lose their immunity from attack for as long as they directly participate in hostilities. Typically, civilians who fire weapons or directly assist combatants on the battlefield, such as by loading weapons or acting as artillery spotters, are considered to be directly participating in the hostilities. “Hostilities” not only covers the time when the civilian actually makes use of a weapon but also the period when he is heading towards or from the battlefield.[103] Persons planning military operations or directing attacks would also be considered directly participating in hostilities. Human Rights Watch found no evidence that any of the 19 civilians described in this report who were killed or injured were directly participating in hostilities.
It should be noted that while civilians are always immune from attack unless directly participating in hostilities, combatants who express an intention to surrender, such as by displaying or waving a white flag, likewise may not be attacked.[104]
All wounded and sick persons on whichever side “shall be respected and protected.” They must receive, to the “fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.”[105] Medical personnel and vehicles must be respected and protected in all circumstances and not be the object of attack.[106]
In the conduct of military operations, parties to a conflict must take constant care to spare the civilian population and civilian objects from the effects of hostilities.[107] They are therefore 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.[108]
Parties to a conflict must do everything feasible to verify that the persons or objects to be attacked are military objectives and not civilians or civilian objects.[109] In its Commentary to Protocol I, the ICRC explains that the requirement to take all “feasible” precautions means, among other things, that those conducting an attack are 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.”[110]
Parties must cancel or suspend an attack if it becomes apparent that the target is not a military objective.[111] Attacks must also be canceled if the attack would be expected to cause loss of civilian life or civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated.[112] And, when circumstances permit, parties must give effective advance warning of attacks that may affect the civilian population.[113]
Parties to a conflict must also take all feasible precautions to protect civilians against the effects of attacks.[114] This includes, to the extent feasible, avoiding locating military objectives within or near densely populated areas.[115]
They must endeavor to remove civilians from the vicinity of military objectives.[116] And they are prohibited from engaging in “human shielding”—intentionally using civilians “to shield military objectives from attacks” or using their presence “to shield, favor or impede military operations.”[117]
The laws of war prohibit perfidy, the improper use of white flags of truce, and the use of human shields. Perfidious attacks are those in which a combatant feigns non-combatant status, such as by pretending to be wounded or a civilian, to gain the confidence of belligerent forces in order to carry out an attack.[118] White flags of truce may only be used to request to communicate with the adversary, such as to negotiate a ceasefire or surrender; any use to gain a military advantage over the enemy is unlawful.[119]
With respect to individual responsibility, serious violations of international humanitarian law, including intentional, indiscriminate, and disproportionate attacks harming civilians, when committed with criminal intent, are war crimes. Criminal intent has been defined as violations committed intentionally or recklessly.[120] Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.[121]
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.[122]
Under international humanitarian law, states have a duty to investigate war crimes allegedly committed by members of their armed forces. They should also investigate alleged war crimes by other persons within their jurisdiction. Where appropriate they should prosecute the suspects before courts that meet international fair trial standards.[123]
[94] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. Also applicable as a matter of customary law are the Hague Convention IV - Laws and Customs of War on Land: 18 October 1907 (Hague Regulations), 36 Stat. 2277, 1 Bevans 631, 205 Consol. T.S. 277, 3 Martens Nouveau Recueil (ser. 3) 461, entered into force Jan. 26, 1910. The “means” of combat generally refer to the weapons used, while “methods” refer to the manner in which such weapons are used.
[95] Israel is not party to Protocol I. Under article 96 of Protocol I, non-state actors may commit, under certain specific circumstances, to apply the Geneva Conventions and the protocols if they declare their willingness to do so to the Swiss government. Neither Hamas nor the Palestinian Authority has ever made a declaration under article 96.
[96] See Yorem Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), p. 11 ( “Much of the Protocol may be regarded as declaratory of customary international law, or at least as non-controversial.”). See generally International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge Univ. Press, 2005).
[97] Geneva Conventions of 1949, art. 3, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions (accessed November 14, 2008).
[98] Protocol I, art. 48. Military objectives are combatants and 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.” Ibid., art. 52(2).
[99] Ibid., art. 51(3).
[100] Ibid., art. 50(1). Some states have expressed reservations about the military implications of a strict interpretation of this rule. According to the ICRC, “when there is a situation of doubt, a careful assessment has to be made as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious.” See ICRC, Customary International Humanitarian Law, pp. 23-24.
[101] See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987, p. 619.
[102] See M. Bothe, K. Partsch, and W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 303.
[103] See ICRC, Commentary on the Additional Protocols, pp. 618-19. “Hostilities” is broader than the definition of “attacks” and includes at a minimum preparation for combat and return from combat. See also Bothe, New Rules for Victims of Armed Conflicts, p. 303.
[104] See, e.g. Hague Regulations, art. 23(c); Common Article 3; and Protocol I, art. 41(2). This protection is conditional on refraining from any hostile act or attempt to escape.
[105]Protocol I, art. 10.
[106]Ibid., arts. 15, 16 & 21.
[107]Ibid., art. 57(1).
[108] Ibid., art. 57(2).
[109]Ibid., art. 57(2)(a).
[110]See ICRC, Commentary on the Additional Protocols, pp. 681-82.
[111]Protocol I, art. 57(2)(b).
[112]Ibid., art. 57(2)(a)(iii).
[113]Ibid., art. 57(2)(c).
[114]Ibid., art. 58(c).
[115]Ibid., art. 58(b).
[116]Ibid., art. 58(a).
[117]Ibid., art. 51(7).
[118] Ibid., art. 37(1).
[119] Ibid., art. 38(1).
[120]See ICRC, Customary International Humanitarian Law, p. 574, citing, e.g. International Criminal Tribunal for the former Yugoslavia, Delalic case, Case no. IT-96-21-T, Judgment, Trial Chamber II, Nov. 16, 1998.
[121]See ICRC, Customary International Humanitarian Law, p. 554.
[122]See ibid. pp. 558-63.
[123] See ibid. pp.607-11, citing the Geneva Conventions and the ICC Statute.