The ICC, Israel and international humanitarian law
Allegations of war crimes by the IDF during its military confrontations with Hamas are an absurdity
In late December, ICC Chief Prosecutor Fatou Bensouda decided to open an investigation into alleged war crimes committed in the Palestinian territories, proclaiming that there was a reasonable basis that such crimes were committed by the IDF during the 2014 hostilities in Gaza. Bensouda even went so far as to accuse the Israel Defense Forces of “willful killing and willfully causing serious injury to body or health.” However, when examining all of the evidence, it becomes apparent that Bensouda’s statement lacks veracity because the IDF conducted Operation Protective Edge in full compliance with international humanitarian law under the Geneva Conventions.
The Geneva Conventions and their Additional Protocols are international treaties that regulate the conduct of parties during an armed conflict and which seek to constrain the deleterious effects of war. A grave violation of the Geneva Conventions is considered under Article 8 of the Rome Statute as constituting a war crime.
Israel’s conduct during Operation Protective Edge in 2014 demonstrates that it did not commit grave violations of the Geneva Conventions that would be considered a war crime under the Rome Statute. For instance, Article 57(2)(b) of Protocol I of the Additional Protocol to the Geneva Conventions states, “An attack shall be canceled 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.”
During Operation Protective Edge, Israel upheld this requirement by canceling air strikes when it noticed that civilians were present.
Similarly, Israel used guided missiles which allowed IAF pilots to redirect missiles in mid-flight in order to avoid hitting civilians whom they noticed were present.
When Israel decided to strike a target, it did so in full compliance with Article 57(3) of Protocol I which states, “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 may be expected to cause the least danger to civilian lives and to civilian objects.”
The IDF used precision pinpoint strikes against the targets it decided to strike in order to minimize damage to the surroundings and to prevent civilian casualties.
ADDITIONALLY, ISRAEL demonstrated that it complied with Article 57(2)(c) of Protocol I, which states, “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”
Israel complied with this provision because it called Gaza civilians and sent warning messages of the impending attack, providing them with effective advanced warning. Similarly, the IDF also sent text messages directed to mobile telephones that warned individuals of an impending strike and to avoid the area.
For instance, Israel called the Wafa Hospital in Gaza where weapons were being stored, and provided the people inside with advance warning of a strike and encouraged individuals in the hospital to evacuate. Additionally, Israel’s conduct is in compliance with Article 57(2)(c) of Protocol I because Israel dropped leaflets warning civilians of an attack and to evacuate the area. Furthermore, Israel used a tactic known as roof knocking, which is used to warn civilians of an impending strike and to give civilians time to evacuate those buildings.
While Israel undertook tremendous precautions in order to minimize civilian casualties, unfortunately, some mistakes were made and civilians were either hurt or killed. However, this does not in and of itself constitute a war crime.
The former chief prosecutor at the ICC, Luis Moreno-Ocampo, has commented, “Under international law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.”
Hamas located its military objectives within densely populated civilian in order to use the civilian population as human shields, trying to make certain areas immune from attack. That is a violation of international law. The IDF was therefore permitted, as Moreno-Ocampo alluded, to carry out its military operations against Hamas, despite the fact that some collateral damage could occur. Israel has its own methods of accountability, as the IDF investigates every allegation of wrongdoing to help ensure that such mistakes do not occur in the future.
In summation, the evidence demonstrates that Israel did not deliberately target civilians and that it acted in full accordance with the principles of international humanitarian law. This shows that the ICC chief prosecutor’s statement regarding the IDF deliberately targeting civilians is erroneous. The prosecutor should exonerate Israel of any alleged war crimes brought forward by the ICC in regard to Operation Protective Edge.
The writer is currently a third-year law-school student finishing his juris doctorate degree.