Posted by: Morton A. Klein
August 1, 2002
News

ZOA Backgrounder: The Legal Right of Israel’s Strike on Salah Shehade by Morton Klein, National President of the ZOA and Robert Jancu, Associate Executive Director


A single Israeli missile successfully aimed at Hamas terror-monger Salah Shehade on July 22, 2002 also killed 15 Palestinian civilians. For these collateral deaths, Israel has come under withering international criticism, including claims that the action was a crime under international laws protecting civilians in occupied land.

Such legal claims are inaccurate. As part of the Oslo Accords, Israel withdrew from Gaza City, where the strike on Shehade occurred. Although Israel has reoccupied several towns in Judea and Samaria as a result of the terror wave launched by the Palestinian Authority in September, 2000, Israel has not reoccupied Gaza City. The test under international law for whether land is occupied is “effective control.” Despite occasional strikes against terror bases in and around Gaza City, Israel exercises no effective control there. As a result, the laws of war apply to Gaza City, rather than the laws of occupation.

Under these laws, Israel is not responsible for the safety of enemy civilians. While at war, an army must only refrain from harming the enemy’s civilians to the extent that military necessity permits. Specifically, the Hague Declarations of 1899, which are “customary” law and therefore apply to all nations whether they expressly ratify them or not, state in the Preamble that parties at war “are inspired by the desire to diminish the evils of war so far as military necessity permits.”

Was Israel’s strike against Shehade justified by military necessity? As the head of Izz ad-Din al-Qassam, the military wing of Hamas, Salah Shehade was directly responsible for the deaths of 200 Israelis in the previous 22 months. In addition, Israeli military intelligence reported that Shehade was planning a “super attack” on Beersheva intended to inflict over one hundred casualties.

In essence, Shehade was a ticking bomb. There is no doubt that he was a legitimate military target for the I.D.F., yet he had eluded Israel for two years. As Boaz Ganor, the Director of the Institute for Counter-Terrorism explains, tips such as the one that enabled Israel to locate Shehade on July 22 “are priceless, but have only a very short shelf-life; if they are not acted upon quickly, they are worthless.”

Israel had to balance the urgency of eliminating Shehade against the prospect of excessive collateral damage. Israel’s Security Service (the “Shin Bet”) reported to Prime Minister Sharon that Shehade was in a two-storey building with two aides. Some sources claim that the Shin Bet also knew of the presence of Shehade’s wife and daughter. The I.D.F., for its part, told Sharon that Apache-delivered missiles could not assure the destruction of the building, but that a bomb from an F-16 would collapse the targeted structure, while limiting the danger to civilians in surrounding buildings to wounds from shrapnel, shock waves, and flying glass. What the I.D.F. assessment apparently did not take into account was that the nearby structures were flimsy and makeshift, and therefore unable to withstand the stress from the bomb.

That Israel did not intend for civilian casualties in the surrounding structures is obvious. As Foreign Minister Shimon Peres notes, the attack on Shehade “was postponed on eight different occasions…and every time it was postponed because of the danger [to] civilian life.” In addition, in Israel’s previous 84 airborne strikes against terror leaders, only 6 such incidents caused civilian deaths. Moreover, Israel’s decision in March and April 2002 to dismantle terror nests in Jenin by means of infantry rather than airstrikes, cost Israel 23 casualties. Israel has held itself to a higher standard than that of U.S. forces in Afghanistan, where the U.S. has inflicted at least 400 civilian casualties by aerial bombardment in the last two weeks alone, according to the estimate of U.S. Secretary of Defense Donald Rumsfeld.

Since Israel both intended to limit, and was reasonably sure that it could limit, the civilian casualties in a strike on Shehade in Gaza, Israel’s action is legal under the 1899 Hague Declaration. Moreover, under the 1977 Protocol I Additional to the Geneva Conventions of 1949, attacks against the “civilian population as such” are prohibited (Art. 51, Sec. 2), but an attack “which may be expected to cause incidental loss of civilian life [or] injury” is permissible if it is not “excessive in relation to the concrete and direct military advantage anticipated” (Art. 51, Sec. 5(b)).

Under this test of proportionality, Israel’s strike was legal: the civilian population was not targeted per se, and the expected civilian casualties (two, at most) would not be excessive as against the anticipated military benefit. It should be noted that Israel is not a signatory to the 1977 Protocol, nor is the Protocol customary international law. As a result, it does not apply to Israel, yet Israel’s act is lawful even under its standard.

Moreover, the Palestinians have a duty under international law to segregate their own civilians from locations or forces that are known objects of attack. For decades, the Palestinians have wantonly breached legal protocols by placing combatants in hospitals, schools, houses of worship, ambulances, and residential quarters. They have scored propaganda victories because the media have disregarded the laws of war, which place all blame for ensuing civilian harm on the Palestinians, e.g., “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy” (1949 Fourth Geneva Convention, Art. 19).

In the case of Shehade, the two-storey house where he met his wife and daughter was also used that day to go over operational details with two aides, according to the Palestinian informant who notified the Shin Bet of Shehade’s whereabouts. Moreover, since Shehade himself was a legitimate military target, he bears responsibility for the harm that befalls those with whom he chooses to physically associate. The 1977 Protocol I to the Geneva Convention is unambiguous: “The Parties to the conflict shall…endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; avoid locating military objectives within or near densely populated areas; 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” (Art. 58).

Indeed, the residents of Gaza City realize that the commingling of combatants among civilians poses a grave danger to innocents, and they have begun enforcing international law-and thereby protecting themselves-by keeping terrorists away from the civilian areas where they try to hide. A Palestinian journalist in Gaza City recently remarked that Palestinians “are stopping [fighters] in the middle of the street and…asking for their identification before they enter a specific residential neighborhood.”

Lastly, if post-Oslo Gaza is somehow mistaken as “occupied” territory, then the1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War applies. This law, too, vindicates Israel’s strike against Shehade. Although an occupying army may not militarily target the occupied population, the occupying force may do battle even where civilians are present: “The presence of a protected person [i.e., a civilian under occupation] may not be used to render certain points or areas immune from military operations.” This doctrine echoes Article 51, Sec. 7 of the 1977 Protocol, which holds that “The presence…of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations.” The tests, as always, are “necessity” and proportionality.” Since Israel’s strike against Shehade saved perhaps hundreds of Israeli civilians, which made the strike necessary, and since the intelligence assessment indicated that Palestinian civilian casualties would be minimal, which made the action proportional to the anticipated military benefit, Israel’s operation against Shehade, the unintended collateral results notwithstanding, is vindicated even under the standard of law for an army of occupation.

In 1998, Great Britain announced a widely acclaimed policy that it would not permit an international tribunal to judge wartime decisions using all information available to the tribunal; instead, it insisted that international courts take account only of the data known to the commanders at the actual time of their decisions. If Sharon and the I.D.F. commanders could not reasonably expect casualties beyond Shehade’s two-storey residence, then the fact of such collateral casualties is immaterial to a legal, and even a moral, assessment of the Israeli airstrike. Such adverse opinions are merely exercises in public relations.