The Israeli-Palestinian conflict and the distinction between civil and military goods

04/08/14

The worsening of the Israeli-Palestinian conflict that has occurred in recent weeks, with the consequent death of hundreds of people, has brought the attention of public opinion, and of international organizations, to wonder if there have been, in this context, violations of the international humanitarian law.

This, in particular, following the bombing by Israel against schools (not least, the "Abu Hussein" of the United Nations just outside the city of Gaza), hospitals (for example, that of al-Aqsa in Deir el-Balah ) and the only power plant in Gaza.

By contrast, Israel accuses Hamas of hiding missile launchers right at mosque, hospitals e playgrounds of children in the Gaza Strip, spreading, in support of their accusations, aerial photos of certain sites.

In short, the situation is, in the field, really controversial: the only certainty is that, because of this, dozens of people continue to die every day, many of them belonging to the civilian population. To the point that both the International Red Cross and the UN have given the green light to committees of inquiry, to assess the possible violation of international humanitarian law by Israel (accused, among other things, also of the use of white phosphorus bombs - see Goldstone Report), although perhaps we should, on the other hand, emphasize, with equal emphasis, the use of human shields and the indiscriminate launch of rockets implemented by Hamas.

In any case, since we do not have reliable data, and since this is not the place, we will limit ourselves, therefore, to defining in general what, according to international humanitarian law, it is permissible to attack and what is not, with the consequent distinction that, in the conduct of military operations, a Commander must be able / able to make between civilian assets and military objectives.

A premise, however, is a must: care must be taken not to confuse the concept of military objective with that of military good. In fact, if a bridge can serve as a military objective when instrumental to the passage of troops, a means of military health, although a military asset, can certainly not be considered a military objective.

This clarified, passing to the notion of military objective, the norms of the DIU do not allow to attack any good: the art. 52 of the Additional Protocol of the 1977 establishes the lawfulness of the attacks only if directed against “goods which by their nature, location, destination or use actually contribute to military action, and whose total or partial destruction, conquest or neutralization offers, in the case concrete, a precise military advantage “.

There are two requisites so that an objective can be defined as military: the first is that the good must actually contribute to the war action of the enemy a) by nature (military aircraft, military ship, armored vehicles, weapons, ammunition, etc.), b ) by location (militarily important area, for example: bridge used for the passage of enemy troops), c) by destination (future use of the property, for example: civilian bus destined to carry weapons), d) for use (current use of well, for example: school in which a military command has been installed).

The second requirement is that the conquest, destruction or neutralization must offer a precise military advantage, ie concrete and direct, excluding - for the majority doctrine - advantages that are difficult to perceive and those that can materialize in the long term (for example: destroy a radio station) - television because used as a means of propaganda): according to the majority doctrine, which follows the interpretative declaration of Italy and other NATO countries adhering to the PA, the advantage must be assessed by referring to the attack as a whole and not to isolated or specific parts of it and, fundamentally, these requirements must be respected in the specific case (in the circumstances ruling at the time).

From what has been said, therefore, it seems clear that a school that hides some enemies, or can be used as a weapons depot, can be recognized as a military target and attacked.

Certainly, an intense and in-depth intelligence activity is important, which can document (even in a future and possible jurisdictional seat) the validity of the attack and its "non-indiscrimination", as well as its timeliness (attack), given that during a conflict, the scenario can change rapidly and what, at a certain moment, represents a legitimate military target may no longer represent it at a later time (emblematic, in doctrine, the attack carried the 21 May 1999 by a NATO aircraft against a barracks in western Kosovo near the Albanian border, which led to the killing of 7 people and the wounding of other 25. The barracks, however, was no longer in the hands of the Yugoslav army for several days).

Military targets also include "dual use" assets, that is assets that, although destined for use by the civilian population, can support the opponent's war effort (for example: radio and television stations; telephone exchanges; production facilities electricity, communication and transport routes, oil depots, ports and airports).

As can be seen, and again with reference to the Israeli-Palestinian conflict mentioned above, the attack against the Gaza power plant could also be lawful, provided that it is also used for military or instrumental purposes. (perhaps, according to the interpretation given by the Arbitration Commission in the 2005, called to decide the lawfulness or otherwise of the attack carried out by the Ethiopian aeronautics against the Eritrean power plant of Hirgigo, as will be explained below).

Moreover, mutatis mutandis, during the military operations in the Balkans of the 1999 the Belgrade broadcasting station was attacked. According to the NATO spokesman, Colonel Freytag - USA, the attack was justified in the light of the DIU, as the asset was also used as a center of command and control of the enemy (and not only as a propaganda tool).

Just as, in the 2003, during the second Iraqi conflict, the Iraqi television station was bombed, which, according to statements by US General Brooks was considered part of a network of military communications ("It's not about broadcast. It's about command and control "). Another example, which is similar to the present one, concerns the Israeli-Lebanese conflict of the 2006, during which the television station of Al Manar was attacked, since, according to the Israeli Ministry of Foreign Affairs, the aforementioned (station) it was used as a means of incitement and a means of recruiting guerrillas.

From the examples given, it emerges that the Commander who decides to attack a "dual use" good must first evaluate:

the requirement of a military objective pertaining to it;

the military advantage consequent to his attack, also in consideration of the possible civil losses that, in these (and only in these) cases, could be considered acceptable.

Certainly, the decision will have to be a wise and wise synthesis between what has just been said and the normative datum: another example of academic value, in fact, is that concerning the attack that took place during the Ethiopian-Eritrea conflict by two Ethiopian jets on 28 May 2000.

In that circumstance, the Hirgigo power plant, located about ten kilometers from the city of Massawa, was severely damaged. The Arbitration Commission, with a sentence of 19 December 2005, held, with a majority opinion, that the aforementioned power plant was a legitimate military objective pursuant to art. 52 of I PA., Not only for its ability to supply energy in the future to a port and a naval base of great importance for the enemy, but also because of the economic importance of the asset, whose destruction could have induced the Eritrea to negotiate the ceasefire.

Clear the implicit consequences in the second motivation, with which there is the risk of extending the concept of military objective to all that can lead to the infliction of serious economic losses on the enemy: on the other hand it is equally true that in US military manuals it is clarified that "Military advantage is (….) Linked to the full context of war strategy" (Operational Law Handbook - Ed. 2004 and 2008), thus including in the concept of military objective all that can also indirectly support the military capabilities of a State , with possible negative repercussions on the principle of distinction.

Just as it is true that the I PA does not provide a mandatory list of assets that can constitute a military objective (nor could it, given the peculiarity of the subject and the wide range of operational situations that can develop in an armed conflict) and is formulated in fact wide and elastic manner.

It is important to underline that, in case of doubt about the qualification of an asset (military objective or civil good), the same could not / should not be attacked, according to a practice that is being consolidated and which is based on the presumption mentioned in 'art. 52 I PA par. 3, according to which “in case of doubt, an asset that is normally intended for civil use, such as a place of worship, a house, another type of home or a school, will be presumed to not be used to effectively contribute to the action military ": this interpretation seems to be confirmed by the" Instructions "issued by the Legal Section of the Israeli Armed Forces during Operation Cast Lead (2008-2009), according to which" a dual use objective may be attacked if reliable, conclusive and up-to -date information confirms that it serves the military activities of the enemy, and subject to the principle of proportionality. In case of doubt, such objective shall be presumed to be civilian "(see The Operation in Gaza - 27 December 2008 - 18 January 2009 - Factual and Legal Aspects, The State of Israel, July 2009).

From what has emerged, it is clear that a Captain's decision cannot disregard many evaluations and the increasing importance, also for our Armed Forces, of acquiring valid Legal Advisor; just as it is clear the clear distinction between what may be the (even justified) public indignation for the loss of civilian victims and the warlike necessity that international humanitarian law is called not to repress, but to mitigate as to the consequences precisely and above all for the unarmed population.

Marco Valerio Verni

[The author, a lawyer at the Rome Bar, is an expert in criminal law, military criminal law and international humanitarian law. Retired Officer (Role Commissioners) of the Military Corps of the Italian Red Cross, he is also a member of the International Relations Sector of the Rome Bar Association.]