Response to Statement by the UN High Commissioner for Human Rights on Hostilities between Hamas and Israel | American Center for Law and Justice

Israel Has a Right to Defend Itself

By ACLJ.org1405183447000

ACLJ responds to the following assertion by Navi Pillay, UN High Commissioner for Human Rights:

Ms Pillay:

“We have received deeply disturbing reports that many of the civilian casualties, including of children, occurred as a result of strikes on homes. Such reports raise serious doubt about whether the Israeli strikes have been in accordance with international humanitarian law and international human rights law.”

ACLJ Response:

The UN-accepted definition of a legitimate military target is to be found in Section 52(2) of the First Additional Protocol of 1977 to the Geneva Conventions:[1]

Military objectives are limited to 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 of advantage.

This is qualified in Section 52(3) as follows:

In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

What emerges clearly from the above is that civilian buildings may be legitimate military targets if they are being used to make an effective contribution to military action. These include houses and other dwellings if so used.

Since the modus operandi of Hamas is to use civilian buildings for most, if not all of its military activity,[2] the civilian buildings so used, including homes, become legitimate targets for attack. 

At this stage the UN High Commissioner has no way of knowing whether any particular building targeted by the Israeli military was or was not being used by Hamas or other militant groups for military purposes. If the High Commissioner’s sources of information are the residents of those buildings, she should recognize that they have a vested interest in denying any knowledge of such military use. Thus the High Commissioner is in no position to express “serious doubts” about the legality of any particular Israeli attack. Use of the term “serious doubts” to denote what is simply a lack of information is no more than an expression of bias against Israel. 

On the other hand, let us consider what we do know about Israeli strikes on residential buildings so far:

  • We know that the Israeli military (IDF) is highly selective and precise in its targeting. It is clear that they have been launching strikes at specific buildings with high-precision munitions, while taking care to leave surrounding buildings intact.
  • We know that many of the residential buildings targeted were homes of known militants. This is an additional indication that the strikes are far from arbitrary.
  • We know that, typically, prior to the attacks, the residents of buildings have received specific, individual telephonic warnings from the IDF to evacuate the premises. Additionally, the IDF has fired warning missiles where residents have failed to heed telephone warnings. This has been acknowledged in a report by the UN agency OCHA, which has a presence in Gaza. This is clear evidence of selective targeting as well as a concerted effort to reduce civilian casualties.
  • We know that in some cases, after telephone warnings were received, people were forced or encouraged to gather on the rooftops of the buildings to act as human shields. This suggests the presence of militants in the vicinity of the buildings targeted.
  • We know that the IDF’s targeting policies and decisions are subject to review and investigation by independent Israeli legal and judicial bodies.[3]

Based on the above, we respectfully suggest to the High Commissioner that the benefit of any “doubts” she may have, be given to Israel.

_________________

[1] Israel is not a party to this Protocol (neither, for that matter is the USA). This means that Israel is not bound by this definition other than to the extent that it reflects Customary International Law. However, for the sake of this discussion, we will assume that the said definition is applicable.

[2] This practice by Hamas is a violation of international law. See Art 58 of the First Additional Protocol:
The Parties to the conflict shall, to the maximum extent feasible:
(a) Without prejudice to Article 49 of the Fourth Convention, endeavor to remove the civilian population,
individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) Avoid locating military objectives within or near densely populated areas;
(c) Take the other necessary precautions to protect the civilian population, individual civilians and civilian
objects under their control against the dangers resulting from military operations.
Also, under the Rome Statute of the International Criminal Court, Article 8: “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” is a war crime.

[3] These include the Israel Supreme Court, the Attorney General, and the IDF Military Advocate General.

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