Hamas/PIJ, Israel, UN facilities, urban warfare, and IHL

Posted: August 12, 2014 by Rex Brynen in Gaza, Hamas, international law, Israel, UNRWA

The IDF has released a series of maps and images depicting incidents where Hamas or Palestinian Islamic Jihad fighters allegedly fired from near (or, in one case, within) UNRWA facilities. According to the accompanying graph, this has occurred some 30 times during the conflict. It is not clear from the IDF presentation what the criteria for proximate fire is—much of urban Gaza, after all, is within 200m of some school or clinic—but the maps certainly show a few cases were launches were adjacent. These firings would represent a very small proportion (about 0.9%) of all rockets fired from Gaza during the conflict.

HamasUNRWA

There has been no suggestion from the IDF that the UN has willingly permitted such actions. UNRWA has no ability to stop what armed groups may do near its buildings or in unoccupied facilities.

During this same period, at least 44 Palestinians have been killed by Israeli fire at or near UN shelters. To date, nine UNRWA staff have also been killed during the fighting

Contrary to belief in some quarters, firing from and to civilian areas is permitted during combat under international humanitarian law. Indeed, it is characteristic of virtually all urban warfare. However, combatants are not supposed to do so in ways that put civilians at particular risk, and are clearly prohibited from using civilians to shield their activities. Under Article 8.2.b.xxiii of the Statutes of the International Criminal Court, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime. Certainly some Hamas and PIJ rocket launches would appear to violate that requirement (quite apart from being a war crime because they are poorly aimed, and fired in the direction of Israeli towns and cities). The ICC currently has no jurisdiction over the occupied Palestinian territory, which would require either a reference by the United Nations Security Council or Palestinian accession to the Court. Israel is not an ICC signatory, nor is it party to the 1977 Additional Protocol to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts.

IHL recognizes that weapons will malfunction and mistakes will be made—warfare, after all, is a chaotic and messy business, in which troops do not always correctly identify targets (evidenced by the frequency with which they fire upon their own side). However commanders are required to take into consideration the precision and reliability of weapons when these are used in proximity to protected persons and sites.

Otherwise protected sites lose their IHL protection when used for military purposes. However, regardless of this, military action in urban areas is always limited by the fundamental requirement that it be discriminate and that the collateral damage inflicted on civilians be proportionate to the military advantage so gained. Firing an artillery barrage in the general vicinity of thousands of civilians and small handful of combatants, for example would likely not meet the IHL requirements for proportionality, nor would attacking a trio of PIJ militants on a motorcycle outside a crowded refugee shelter.

For other PRRN coverage of these issues, see:

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