VIDEO: Israel Complies With The Law Of Armed Conflict When Defending Against Terrorists Hiding Among Civilians
Proportionality relates to loss of civilian life “which would be excessive in relation to the concrete and direct military advantage anticipated…. So there is some requirement of proportionality in international law, but it’s not proportionality between the casualties on your side and the casualties on the other side….’
On Wednesday, June 9, 2021, the Legal Insurrection Foundation held an online event on How Israel Implements The Law Of Armed Conflict To Defend Against Terrorists Hiding Among Civilians.
The event was a reaction to the outrageous lies, misinformation, and disinformation spread regarding Israel’s conduct in the May 2021 conflict initiated by Hamas firing thousands of rockets at Israeli cities.
The original event post has full biographies of the speakers. You know me and Kemberlee, and we were honored to be joined by two experts in the fields of international law and the law of armed conflict:
Eugene Kontorovich is a Professor of Law and Director, Center for the Middle East and International Law, at George Mason’s Antonin Scalia School of Law. As head of the International Law Department at the Kohelet Policy Forum, a Jerusalem-based think tank, he is recognized as one of the world’s preeminent experts on international law and the Israel-Arab conflict. He is a widely sought-after speaker. He has testified repeatedly in both houses of Congress, and regularly briefs visiting European and American legislators and celebrities on their trips to Israel. Legal Insurrection readers may recall Prof. Kontorovich’s must-watch lectures, The Legal Case for Israel, and The Legal Case for Israel’s ‘Settlements’.
Eli Bar-On concluded his career in the Israel Defense Forces holding the position of instructor at the IDF National Defense College (the INDC). Prior to that position Bar-on served as the Deputy Military Advocate General of the IDF (2012 to 2015), where he was in command of approximately 1,000 lawyers and legal experts, including prior to, during and following Operation Pillar of Defense & Operation Protective Edge. He also served as the Chief Legal Advisor for the IDF in the West Bank from 2009 to 2012. A prolific lecturer, Bar-on has provided expert presentations to hundreds of high level, international delegations in Israel and throughout the international community. He is a Senior Legal Analyst at The MirYam Institute, lecturing and writing on a variety of topics related to the law of warfare.
The presentations by Prof. Kontorovich and Col. Bar-On contain many interesting and important visuals:
The Highlight Reel below runs 28 minutes. The full event video, at the very bottom of this post, runs 1 hour and 28 minutes, so an hour of content, including the Q&A, was left on the Highlight Reel cutting room floor. But you can watch the full program at the bottom of this post.
Please note that the highlight reel (and transcript) compacts clips of statements by the respective speakers and are not single uninterrupted presentations, it should be obvious where the break in the original comes (but if there’s any doubt, you can watch the full video at the bottom of the post). Also, the transcript is mostly auto-generated, so there may be transcription errors.
HIGHLIGHT REEL TRANSCRIPT
(AUTO-GENERATED, MAY CONTAIN TRANSCRIPTION ERRORS)
Time Stamps are approximate. Because the highlight reel transcript is longer than usual, I have added some emphasis to parts of the transcript:
Kemberlee Kaye, Director of Operations and Editorial Development, Legal Insurrection Foundation (00:13):
And today’s panel discussion is entitled, “How Israel Implements the Law of Armed Conflict to Defend Against Terrorists Hiding Among Civilians”. I think this is an incredibly important topic. I think it’s very relevant. I know we receive from our readers many questions along these lines, so I’m thrilled to be able to provide expert opinion on the matter. They can explain some of these things a little bit better to all of us, so that we can better discern what the news is telling us and what the media is telling us about the current situation…
Professor William A. Jacobson, Cornell Law School and President, Legal Insurrection Foundation (00:43):
It was our idea to do this in light of the overwhelming flood of misinformation and disinformation that has been taking place since the recent, eleven-day conflict precipitated by Hamas firing rockets at Israel…. The first of the major conflicts that we covered was the 2014 Gaza conflict, and this is something like a “here we go again,” in terms of media coverage and disinformation.
At that time, and again this time, the media battlefield becomes extremely important, maybe not as important as the actual battlefield, but Israel has always, at least in my coverage, done much better on the actual battlefield than on the media battlefield. And so we’re hoping to arm you with facts and information that can help you respond to some of the misinformation and lies that are spread around….
Very important, what I think is most on-topic, for this panel and why we requested that these really two highly, highly-qualified people come on and explain to you, is that accusations about violation of international law become part of the media narrative and become essentially weaponized as part of the informational war on Israel….
During the conflict, you couldn’t turn on a TV in the United States without hearing somebody in their 40-second coverage of the conflict on mainstream media talk about ‘disproportionality’ that the mere fact that more Palestinians have died than Israelis somehow means it’s a war crime… as if the law of armed conflict requires that both sides lose as many people in the conflict. So I thought it would be really important to bring these two individuals on today. And I’m going to not say a whole lot more because I want you to hear from them about what international law actually says about armed conflict, and the extraordinary extent to which the IDF goes to comply with international law…
Professor Eugene Kontorovich, Director, Center for the Middle East and International Law at the Antonin Scalia School of Law, George Mason University (03:06):
The Gaza conflict recently, like almost everything else involving Israel, in popular discussions, was cast almost exclusively in international law terms. This is important. I think [that] itself deserves to be noticed. There’s lots of wars around the world, lots of wars in which Western forces participate, and NATO forces. And they’re often discussed in a variety of terms. Are they good? Are they bad? Are they helpful? Who’s winning? But when Israel is involved, there is an inevitable recourse to the language of international law…
I’m going to suggest two reasons why these issues inevitably turn on questions of international law. One is precisely what I just said. Unless you’re an international lawyer, you are almost certainly unfamiliar with the fine points of the first additional protocol to the 1949 Geneva conventions…. Making claims about Israel’s conduct, in the context of international law, is a way of shielding them behind the veil of expert discourse, which makes it hard for people to evaluate independently. And this is one of the things I hope to do, is give you tools to evaluate it independently…
Another reason to consider why Israel is so frequently cast as a serial violator of international law, and I think the undercurrent is if Israel, if Israel violates the rules by which countries agreed to conduct themselves, then it has, in a sense, lost the privilege of being part of the community of nations. And so it’s a fundamental attempt to delegitimize Israel as a country. And I think that’s why international law is so often invoked.
In this case, the international law question is fairly easy. The claims can be described as such, that Israel violated the law of war by killing civilians. That’s a very strong claim, “Israel killed civilians. That’s a violation of the law of war.” Or perhaps Israel violated the law of war by killing more civilians than it had civilians killed on its side, or by causing civilian death not in proportion to the civilian casualties that it itself suffered. That’s another description. Or perhaps, as the New York Times seems to suggest, that it violated the laws of war, merely by the fact that children died as a result of its actions or that the casualties on the other side were greater than the casualties on the Israeli side.
None of these claims has any basis in international law or the law of armed conflict….
Civilian casualties are predictable consequences even of the most righteous war. And, they’re not forbidden. What international law does do, it has a central principle of what’s called “distinction”… that [a belligerent] clearly distinguishes its fighting forces from the civilian population. That’s the point of uniforms. So it is an obligation of a belligerent to clearly distinguish their fighting forces, their combatants from non-combatants. On this count, I think it’s quite clear that Israel does this. Israel has a regular uniformed military, and Hamas does not do this….
Whether Hamas distinguishes itself from the civilian population does not itself prevent Israel from attacking Hamas targets. And let me show you the relevant provisions of international law directly. The treaty I am showing you that we called the First Additional Protocol of the Geneva Convention…
What Article 51, “Protection of the Civilian Population,” prohibits is indiscriminate attacks, right? So we mentioned there’s the principle of distinction. One side needs to distinguish its combatants from its non-combatants and the other side needs to also distinguish, in its targeting between combatants and non-combatants…. It’s an attack that is not aimed at a specific military objective, you need to have a specific military objective.
What are you not allowed to do? What are you not allowed to do? Using a method or a means of combat, which cannot be directed at a specific military objective. What would be an example perhaps of a method of combat, which cannot be directed at a specific military objective? Aiming a rocket or a hundred rockets at the city of Tel Aviv and claiming, as Hamas sometimes would, “There’s some military targets in Tel Aviv. Maybe we were trying to hit them.” “Maybe we’re trying to hit the defense ministry headquarters.” But those rockets are incapable of being directed with such specificity. And so they’re essentially direct-adjusted for Tel Aviv.
So an indiscriminate attack is an attack that may be expected in advance when these decisions are made, something Colonel Bar-On is going to talk about, to cause incidental loss of civilian life, which would be excessive in relation to the concrete and direct military advantage anticipated.
And that is the fundamental rule, that civilian casualties are permitted; they can even be anticipated. That is to say a target is a lawful target if it is a military objective, and yet the targeter knows there will be civilian casualties, if the civilian casualties that are expected, which by the way is different from the ones that actually happen, are not excessive in relation to the concrete and direct military advantage anticipated.
So there is some requirement of proportionality in international law, but it’s not proportionality between the casualties on your side and the casualties on the other side, let alone the civilian casualties on your side and the civilian casualties on the other side…
The notion that the attacks one can make on an opposing force need to remain in proportion with your own civilian casualties would mean that the better you are at protecting your civilian population, the less you can fight your enemy. And that is an extraordinary notion that has absolutely no basis in international law or international practice… This determination of excessiveness is made in advance, in the fog of war, not afterwards when it turns out that mistakes may have been made….
But let’s say you have a mixed objective. You have a military objective that’s surrounded by civilians. So the additional protocol specifically addresses the question, the use of human shields. The presence or movement of the civilian population shall not be used to render certain points or areas immune from military operation, in particular attempts to shield military objectives from attacks or to shield favor or impede military operations….
So as we’re going through this, we’re seeing that not only is Israel not violating his provisions, but it’s quite clear that reading the provisions, it is exactly Hamas that is violating them, by locating or moving civilian populations in an attempt to render areas immune from military operations. Note, also the [additional] protocol does not say that it does render those sites immune. It does not say that the presence of civilians renders sites immune. It says you shall not put there to try to render the sites immune….
So again, civilian casualties are legal and permissible and lamentable, but are not violations of the law of war when they’re not excessive in relation to a concrete military advantage in a strike on a legitimate military objective….
Because what is a military objective? Objects, which by their nature, location or purpose, can be an effective contribution to military action and whose destruction helps your side. What’s that mean? That means a Hamas rocket launcher is a military objective, whether it’s located in a school or whether it’s not located in a school. A Hamas headquarters or a Hamas technical facility is a military objective, whether or not it is in an office building and whether or not [the] other tenants of that office building happened to be the Associated Press….
Now, how does one measure that proportionality? In fact, there is no answer…. How do you determine whether something’s excessive? So in international law, there is no actual rule…. In other words, international law and international practice does not in fact provide any clear standard, but you didn’t see the New York Times front page saying that America didn’t lose enough children in the Afghan war, or that America didn’t lose enough children in the Libya war. This is a notion that is invented solely in the case of Israel, where ironically it fits the least…
Colonel Eli Bar-On, IDF, Ret. (14:09):
What I would like to do now is take everything that Professor Kontorovich has referred to, which I fully agree with, and put things in context, and maybe try to concretize them, by looking through the lens of the last Gaza campaign from last month….
So we might want to start just by putting some geographical sense to the issue… [slide] It’s important to note that all the pink and red spots on the map; this will indicate the inhabited areas of the Gaza strip. It’s important to look at it now, because these are the places in which the 99.99% of the fighting will always take place. You can see that there are many, many open spaces in Gaza Strip, rural areas. But the fighting will never take place over there because of the modus operandi of Hamas, who always embed themselves in those areas…
In the past 14 years, we’ve had four major military campaigns in Gaza between Israel and Hamas, the last one, last month. [slide] And in between those campaigns, we had many smaller campaigns….
And to put things in a historic context, when we talk about the main threat from Gaza, and the traditional main threat has been the rocket attacks from Gaza into Israel, what we see in this chart is the numbers of rockets that [have] been launched from Gaza to Israel in the past 15 years…. [slide]
And these are the figures for the last operation in Gaza, [which] as we recall, lasted for 11 days, in which more than 4,000 rockets have been launched towards Israel. [slide] So in a fifth of the [time of the] 2014 campaign, more rockets have been launched.
We can see the coverage of these rockets. [slide] They can now cover pretty much the vast majority of the area of the State of Israel with more than 7 million people out of 9 million people living under the threat of these rockets. What we see here is the actual places that were hit by those rockets, during the operation only in central Israel. I’m showing you this because central Israel is the area in Israel where the most densely or the most concentrated population centers in Israel.
Now, one of the main challenges for a military that’s fighting such attacks, in the offensive regard, meaning how do you target the launchers of these attacks, is the fact that they are always embedded in a very densely populated area. [slides] …. We can see here the salvos, hold those rockets again, a few seconds later, another salvo. You can see how densely populated, inhabited this area is. Obviously this is a huge military challenge if you want to target those launchers…
But hundreds of miles of these tunnels for defensive means were still in Gaza and during the operation, [slide] Israel targeted hundreds or even thousands of exit holes of these tunnels in order to neutralize the threat of militants emerging from the underground in the next round of hostilities, if, God forbid, that happens. There are basically two main, defensive means. The first one will be to have shelters in structures in Israel.
Every citizen in Israel [who] was building his house will not get a permit unless he has a concrete secured room, a shelter inside his house. [slide] In fact, I’m sitting now in my study, which is my shelter. The walls here are all made of concrete, but obviously, in the communities near Gaza, they only have 15 seconds to get into these shelters. [slide]
The other measure that Israel is heavily investing in, in order to protect its civilians, is the Iron Dome missile defense system. [slide] This is not Photoshop. This is a real photo taken by the AFP Press Agency. What we see on the right is a salvo of rockets from Gaza. What we see on the left is a salvo of Iron Dome intercepting missiles heading to these rockets in order to intercept them.
Now obviously, the system is very effective, as I said, but it does not give you an immunity or a guarantee…. [slide] Diminishing or having 85 less rockets hitting their targets does not mean [you’ll have] 1% less of the terror of the people that are being targeted by those rockets. I can tell you that this is truly a horrifying experience to be under one of these attacks.
So, Professor Kontorovich addressed, very thoroughly, the main principles of the law of armed conflict. [slide] When you look at the laws of war, you sometimes may be confused when you talk about people who have civilian functions during daytime and then combat functions during night times, or have lapses in their military operations. And this is obviously something that gives them an unfair advantage, compared to law-abiding forces of countries.
So this is a first example of the imbalanced, lack of reciprocity in the obedience to the laws of war… When Hamas places their military, their combatants and military objectives, within the surroundings of their civilians, they are making them human shields, at least involuntarily. We also had many instances in which civilians were called to protect military objectives, and they came and flocked the rooftops for instance, of some of these objectives in order to allow the IDF to see them on the rooftops and avoid from attacking those lawful targets.
The legal endeavor of these operations [slide], because I myself was a military lawyer; I spent years of my life in this endeavor as a deputy military advocate-general, I was in charge of approximately 1,000 lawyers, who were devoted to make sure the idea of compliance with the rule of law.
So when we look at this cycle, we can talk about things that happened prior to any conflict. The Geneva conventions are part of the IDF orders. Every IDF soldier is obligated to comply by these conventions. Every soldier has to go through mandatory training in international law. And as a commander progresses through the ranks, you will get more in-depth, military training, legal training as to his obligations. Before every operation, the IDF will get legal advice concerning every aspect of the procedures of warfare….
During the operation itself, we have ongoing legal advice. We have lawyers deployed with the military commanders on the battlefield. We have what we call the “operational law [inaudible]”, [which] is a bank of lawyers, experts in international law in all niches of the laws of armed conflict. And we also have a 24/7 legal war room. And after the fighting ends…
So with that, let’s look at the way the IDF is responding operationally to all the challenges we talked about. [slide] First of all, you’ve got to have very accurate intelligence in order to operate in such a densely populated environment….
We can see here the root of one small segment of one of these tunnels. [slide] And we can see now how they have a school right here, a playground, a fire station, a mosque, a hospital. All of them in the immediate vicinity of the tunnel… Another method the IDF uses is the use of coordination maps of sensitive sites. [slide] Sensitive sites will be all the sites, literally sensitive mosques, hospitals, kindergarten schools, et cetera. You can see it very clearly in many, many of these sensitive sites. We can see how they have been manipulated, during the operation, to launch all those targets or all those attacks or to locate all those military targets.
The IDF has a very robust system of effective advanced warnings…. [slide] As far as I know, the idea is it is the only military on earth that uses direct text messages to people on the ground, uses phone calls, leaflets, uses the media to warn the residents, the civilians to specific places where there are impending attacks….
Another operational measure is very strict operational pre-planning. [slide] The IDF will use a set of pre-planning tools before every attack. And I will show an example in a minute….
Now, I want to show you, and I think Professor Jacobson, you referred to this process. [slide] I want to show you a real, what we call, a “target card”. That’s obviously a top secret target card, but it’s been made public after the 2014 Gaza conflict.
Each and every, planned targeting attack in Gaza or elsewhere, you can ask me later about Lebanon or whatever you want, has to go through this process, this process that may take sometimes months until it’s finished…. You can see here the intelligence that you have on the target. You have the location, who is present at the target, the military commander, his family, and Palestinian Islamic jihad operatives. And you have the description of the target, their weapon relocated inside, both Kalashnikovs, steel pipes to manufacturer projectiles and Grad missiles. And you also have [a section] saying about the sensitive site. So in this case, there are no sensitive sites within a 100 meter radius of the targets, and these are the conditions.
We will see in a minute that this is a conditional strike, and these are the conditions. The conditions is that we will have real-time visual surveillance to make sure that we know what are the changing circumstances on the ground. The attack will be taking place in nighttime to make sure that there are no civilians around the house, that everybody is in their houses. And they will get individualized, effective, advanced warning. What does it mean?…
Since there are also civilians, his family, the house will not be attacked before in individualized effective advance warning, plus another precaution, which is called the roof knocking. So what is roof knocking? In some cases, those phone calls end up with people negotiating with the IDF officer. They’re telling him, “Do not attack us. This is not a military objective,” or “We will not leave the house.” “We will not leave this building.”
In this case, the idea is we’ll deploy a low munition projectile to the corner of the roof. This will not harm the, damage the house. It will only shake the house very strongly, make a very strong sound, and it has been very persuasive. I’m not familiar with any military [power] that uses this technique in order to save civilian lives….
And again, you see the legal review with all the conditions, and you can see the bottom line. This is a military objective, and these are the conditions for carrying out the attack….
But in many cases, and this is a good example, the weak side is the evil side, and it shouldn’t confuse people in democracies to be siding with evil, with terrorist groups. I think it’s very important to relay that message. Thank you very much.
FULL EVENT VIDEO
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Isn’t it clear by now that response to Arab acts of war have not been severe enough to bring an end to these attacks?
The West pays lip service to Israel’s right to defend itself. Then it funds UNWRA, the PA and even the mullahs in Iran so that we can fight the next war. Over and over.
Thank you Legal Insurrection for the seminar. It was excellent. And thank you Kemberlee for reminding us that we are not alone. It certainly feels that way sometimes.