A Legal and Operational Assessment of Israel’s Targeting Practices
By Michael Schmitt and John Merriam
Broadly speaking, we concluded that IDF positions on targeting law largely track those of the United States military. Moreover, even when they differ, the Israeli approach remains within the ambit of generally acceptable State practice. The IDF is served by a corps of highly competent and well-trained legal advisors who operate with a remarkable degree of autonomy, and its operations are subject to extensive judicial monitoring. While there are certainly Israeli legal positions that may be contentious, we found that their approach to targeting is consistent with the law and, in many cases, worthy of emulation.
Michael Schmitt is the Charles H. Stockton Professor of International Law and Director of the Stockton Center for the Study of International Law at the U.S. Naval War College.
John Merriam is a US Army Judge Advocate currently serving as the Associate Director of the Stockton Center at the US Naval War College.
The two larger papers are interesting in themselves. For example:
When civilians may be affected by an attack and it is militarily feasible to do so, the IDF undertakes extensive measures to warn them.69 Some, such as leaflet drops and general announcements to the civilian population, are common in conflicts. They typically announce that a particular area will be subject to attack and instruct the population where to go to avoid its effects. In many cases, the IDF contacts neighborhood leaders and asks them to encourage civilians to leave the area. The IDF also delivers very precise warnings of particular strikes. As described below, these include direct phone communications with civilians in the target area and so-called “knocks on the roof.” Human rights organizations criticized both of the latter techniques during the recent Israeli operation in Gaza, although the authors did not find the criticism well-grounded.70Footnote 70 refers to Human Rights Watch and Amnesty International, effectively saying that their grasp of international law is flawed..
Although the Israeli positions on the LOAC principles and rules governing targeting are rather orthodox, the unique operational environment in which it finds itself clearly affects interpretation and application. As an example, given the propensity of Israel’s enemies to use human shields, it is unsurprising that Israel has taken the position that individuals voluntarily acting this manner are to be treated as direct participants in hostilities. In light of its enemies’ frequent failure to distinguish itself from the civilian population, it is equally unsurprising that Israel has embraced the principle of reasonableness with respect to target identification. Perhaps most noteworthy is the high value Israel places on the safety of its soldiers and its civilian population. Although impossible to quantify, these concerns undoubtedly influenced the perspective of Israeli commanders as they plan and execute military operations, perspectives that often come into play in the application of such LOAC concepts as proportionality.Israel's actions were quite lawful under any sane interpretation of the Laws of Armed Conflict. Amnesty and HRW twist international law in ways that make it impossible for any modern army to fight.
In the authors’ opinion, use of lawfare by Israel’s enemies likewise shapes, whether consciously or not, Israel’s interpretation and application of the LOAC. In particular, Israel has adopted an inclusive approach to the entitlement to protected status, particularly civilian status. Examples include Israel’s positions on doubt, its treatment of involuntary shields as civilians who are not directly participating and its view that individuals who ignore warnings retain their civilian status. Although these positions might seem counterintuitive for a State that faces foes who exploit protected status for military and other gain, such positions are well suited to counter the enemy’s reliance on lawfare. In this regard, Israel’s LOAC interpretations actually enhance its operational and strategic level position despite any tactical loss. Along the same lines, in many cases, the IDF imposes policy restrictions which go above and beyond the requirements of LOAC.