Israels Obligations to Take Precautions against the Effects of Attacks
International humanitarian law obligates all parties to an armed conflict to take all feasible precautions to protect the civilian population under their control against the effects of attack.215 Feasible precautions have been defined as those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.216 This includes avoiding locating military targets within or near densely populated areas217 and removing civilians from the vicinity of military objectives.218 Israel has incorporated these norms into its military manuals.219
Shielding refers to the intentional use of the presence of civilians to render certain points, areas, or military forces immune from attack. 220 Taking over a familys house and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of using human shields. We found no evidence that Israeli authorities or the IDF intended to use civilians in northern Israel in this fashion during the 2006 conflict with Hezbollah.
However, the prohibition on shielding is distinct from the requirement that all warring parties take constant care to protect civilians during the conduct of military operations by, among other things, taking all feasible precautions to avoid locating military objectives within or near densely populated areas.221 In firing rockets toward Israel, Hezbollah violated its obligation to aim exclusively at military objectives and to do so only when it could distinguish between military objectives and civilian objects. It fired rockets at all of the main Jewish cities of the north irrespective of whether there were military objectives within or adjacent to these cities. Given that indiscriminate fire, there is no reason to believe that Israel's placement of certain military assets within these cities added appreciably to the risk facing their residents. That said, Israel should, to the extent feasible, relocate military assets away from populated areas, and enhance, where warranted, the protection it provides to all civilians residing near military assets.
Throughout the north of the country, fixed military facilities, such as IDF bases, are located next to or in the midst of civilian settlements. The IDF northern command headquarters is located in the city of Safed. The Israeli navy has a major training base on the Haifa waterfront, across the street from Rambam Hospital and adjacent to Bat Galim, a neighborhood of low-rise apartment buildings. The Rafael Armament Development Authority, a public-sector corporation that produces weapons and technology for the IDF and for export, has a major complex on the coast, between the towns of Kiryat Yam and Akko; numerous other defense plants in the north are located next to Jewish and Arab settlements.
During the conflict, the IDF presence in the north surged as the army concentrated its forces near and across the border. In some instances, the IDF fired artillery into Lebanon from locations quite near to residential communities, such as just outside the border village of Arab al-Aramshe, and near the town of Maalot-Tarshiha (see chapters above on these two locations). Two significant military bases are located near the village of Mghar (population 19,000) in the eastern Galilee, which Hezbollah hit with about forty rockets. Over the years, Arabs in several Galilee towns and villages, including Sakhnin222, have protested against the construction or expansion of IDF and defense industry facilities in their immediate vicinity.
When Human Rights Watch on July 23 visited the Jewish village of Zarit, located some 750 meters from the border, we watched the IDF firing 155mm shells from 109 howitzer cannons parked on a residential street. The same day, we observed an artillery platoon firing into Lebanon from atop a hill just beyond a residential area of northern Kiryat Shmona (population 22,100).
Col. Kuperstein, in charge of the IDFs Department of Physical Protection, denied that the IDF placed artillery batteries next to or in civilian neighborhoods, claiming that they were all placed in open places. But when asked about the artillery unit Human Rights Watch had seen firing from a street in Zarit, Col. Kuperstein replied, I think we could call it an open space. Its a village on the northern border.223
Lt. Col. David Benjamin, head of the civil and international law branch at the IDF Judge Advocate Generals office, said, We are a small country. If you said you cant put an artillery piece within 30 kilometers of a village, we couldnt operate. The IDF has no policy of firing, purposely or negligently [in a way] that endanger[s] its own civilian population.224
Israel can also point to the extensive efforts it takes in wartime to shelter or evacuate civilians in northern Israel, in order to protect them from belligerent attacks while it conducts its own military operations in the region. Israels elaborate civil defense program includes publicly and privately maintained reinforced shelters, secured hospital wings, warning sirens, public education programs, and evacuation plans. These programs almost certainly helped to reduce the number of civilian casualties inflicted by rockets fired by Hezbollah during this and earlier conflicts.
Nevertheless, the incidents described above raise questions as to whether Israel complied at all times with the international humanitarian norm requiring it, to the extent feasible, to avoid locating military objectives within or near densely populated areas, and to protect the civilian population under its control from the effects of attack.
For example, the IDF fired artillery cannons during the war from the outskirts of the Bedouin border village of Arab al-Aramshe. Hezbollah rockets hit Arab al-Aramshe several times during the war. On August 5, one of them struck a house and killed three women. To our knowledge, Hezbollah issued no statement indicating the intended target of this deadly attack; it is not known whether it had been aiming at the IDF artillery cannon or simply firing toward the village. Either way, the question remains whether the IDF could have placed its artillery cannons at a farther remove from the village and whether Israeli authorities could have done more either to shelter or evacuate the residents of Arab al-Aramshe while troops were firing from nearby fields.
By the same token, by situating major military assets such as the IDF northern command headquarters in the city of Safed and the Navy Training Base next to Rambam Hospital and the Bat Galim neighborhood of Haifa, Israel exposes the civilian neighbors of these bases to the danger of enemy attacks on these assets. The obligation under international humanitarian law to take all feasible precautions to protect the nearby population means ensuring that an adequate civilian protection plan is in place for the population living nearby, or relocating those assets away from densely populated areas.
But even where Israel situated military assets in or near densely populated areas, Hezbollah would not have been justified under the laws of war to respond with indiscriminate attacks. International humanitarian law requires warring parties even in such circumstances to discriminate at all times between noncombatants and legitimate military targets, firing at only the latter, and only when the expected civilian loss is not disproportionate to the anticipated military gain. Hezbollahs failure to comply with these requirements was the principal cause of the wartime civilian casualties in Israel.
Protection of civilians during wartime and the Principle of non-discrimination
While Israel has invested heavily in civilian protection, Arab residents of northern Israel raise legitimate questions about whether Israel discriminates against them in terms of the degree of protection it provides them from belligerent attacks. The complaints were louder than ever during the 2006 conflict because it was the first time that Arab communities and not just Jewish communities had come under extensive fire from Hezbollah rockets.225 Arabs accounted for eighteen of the forty-two Israelis killed in the attacks.
The Arab citizens and nongovernmental organizations who alleged discrimination contended that the state provided inadequate Arabic-language information, insufficient alarm systems in Arab areas, and fewer public shelters.226 Government officials denied that Arab communities had unequal access to public information and contended that decisions on building public shelters and safe rooms in private homes depended to some extent on municipalities and individual property owners respectively. If these protected spaces were less common in Arab communities than in Jewish ones, officials told Human Rights Watch, it was because, until 2006 many Arabs, assuming that their communities would not come under attack, had chosen not to allocate the substantial resources required to construct and maintain these safe areas.227
However, an audit prepared by Israels state comptroller, Micha Lindenstrauss, criticized the inadequacies of shelters and other protection for the non-Jewish population in northern Israel. His 582-page report on the Home Fronts performance during the Lebanon war, released July 18, 2007, noted, with respect to the non-Jewish sector:
The office of Prime Minister Ehud Olmert rejected the State Comptrollers findings.229
Human Rights Watch did not investigate whether Israel discriminated among Jewish and Arab residents of the north in the protection it provided from Hezbollah attacks. We note, however, that international human rights law would prohibit such discrimination on the basis of religion or ethnicity.230
215 See Protocol I, art. 58(c).
216 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).
217 See Protocol I, art. 58(b).
218 See Protocol I, art. 58(a).
219 The IDF Laws of War on the Battlefield, p. 38, notes it is prohibited to mingl[e] military targets among civilian objects, as for instance, a military force located within a village or a squad of soldiers fleeing into a civilian structure. Also, [o]ne should try and remove the civilian population from military targets. Ibid. p. 39.
220 Protocol I, art. 51(7).
221 Protocol I, arts. 57, 58.
222 Palestinians Protest on Land Day, Salt Lake Tribune, March 31, 2000.
223 Human Rights Watch interview, Ramle, October 4, 2007.
224 Human Rights Watch interview, Tel Aviv, July 2, 2007.
225 See, for example, Sharon Roffe-Ofir, Nazareth: No one told us, the Arabs, to take shelter, Ynet News, July 19, 2006, http://www.ynetnews.com/articles/0,7340,L-3278550,00.html#n (accessed May 31, 2007); the Mossawa Center (Haifa, Israel), The Arab Citizens of Israel and the 2006 War in Lebanon: Reflections and Realities, August 2006, http://www.mossawacenter.org/files/files/File/Reports/2006/The%20Arab%20Citizens%20of%20Israel%20and%20the%202006%20War%20in%20Lebanon(2).pdf. (accessed May 1, 2007).
227 Human Rights Watch interview with Col. Yechiel Kuperstein, head of the IDFs Physical Protection Department, Ramle, October 5, 2006.
228 Israel State Comptroller, The State of the Home Front and its Functioning during the Second Lebanon War, (He'archut Ha'oref vetifkudo bemilhemet Levanon Hashniya) in Hebrew at http://www.mevaker.gov.il/serve/contentTree.asp?bookid=493&id=188&contentid=&parentcid=undefined&sw=1280&hw=954, July 18, 2007 (accessed July 21, 2007).
229 Aron Heller, Government Watchdog Slams Olmert, Army for Handling of Homefront during Lebanon War, Associated Press, July 18, 2007.
230 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 26.