Amsterdam, May 2015
‘Effective and advance warning’: A legal assessment of the conduct of roof knocking in Gaza
By Vivian Camphuijsen
University of Amsterdam | Faculty of Law | LL.M. International and European Law Track Public International Law (2014-2015) | Master Thesis (final version) Submitted 29-05-2015 | Supervised by Dhr. Prof. Dr. T.D. Gill
By Vivian Camphuijsen | Studentnumber 10184872 Table of Contents LIST OF ABBREVIATIONS ...... 3 INTRODUCTION ...... 4 1. THE CONFLICT IN GAZA ...... 10 1.1 DISENGAGEMENT PLAN AND THE STATUS OF THE TERRITORY ...... 11 1.2 ELECTIONS 2007 ...... 11 1.3 OPERATION CAST LEAD, DECEMBER 2008 ...... 12 1.4 OPERATION PILLAR OF DEFENSE, NOVEMBER 2012 & OPERATION PROTECTIVE EDGE, JULY 2014 ...... 13 2. THE APPLICABLE LEGAL FRAMEWORK ...... 13 2.1 THE APPLICABILITY OF IHL ...... 14 2.2 THE APPLICABILITY OF IHRL ...... 15 2.4 CONCLUSION ...... 17 3. INTERNATIONAL HUMANITARIAN LAW ...... 17 3.1 SOURCES OF INTERNATIONAL HUMANITARIAN LAW ...... 18 3.2 TYPES OF ARMED CONFLICT ...... 18 3.2.1 International armed conflict ...... 19 3.2.2 Non-international armed conflict ...... 19 3.3 BELLIGERENT OCCUPATION ...... 20 3.4 DISTINCTION BETWEEN IAC AND NIAC IN THE CURRENT SITUATION ...... 22 3.5 A FOCUS ON CUSTOMARY IHL ...... 24 3.3 CONCLUSION ...... 25 4. DETERMINATION OF CUSTOMARY IHL ...... 26 4.1 CUSTOMARY IHL ...... 26 4.1.1 Usus ...... 27 4.1.2 Opinio Juris sive necessitatis ...... 28 4.2 CONCLUSION ...... 29 5. PROVISIONS OF CUSTOMARY INTERNATIONAL HUMANITARIAN LAW ...... 29 5.1 PRINCIPLE OF DISTINCTION ...... 30 5.2 THE PRINCIPLE OF PROPORTIONALITY ...... 35 5.3. THE OBLIGATION TO TAKE FEASIBLE PRECAUTIONS ...... 37 5.4 CONCLUSION ...... 42 6. ROOF KNOCKING IN PRACTICE ...... 42 6.1 WHAT IS ROOF KNOCKING, WHAT IS ITS PURPOSE AND HOW IS IT CONDUCTED? ...... 42 6.2 CRITICISMS ON THE CONDUCT OF ROOF KNOCKING ...... 44 6.3 CONCLUSION ...... 46 7. A LEGAL ASSESSMENT OF THE CONDUCT OF ROOF KNOCKING I: ATTACK ...... 46 7.1 THE DEFINITION OF “ATTACK” UNDER IHL ...... 47 7.2 THE CONDUCT OF ROOF-KNOCKING AS AN “ATTACK” ...... 49 7.2.1 The principle of distinction in practice ...... 50 7.2.2 The principle of proportionality in practice ...... 51 7.3 CONCLUSION ...... 55 8. A LEGAL ASSESSMENT OF THE CONDUCT OF ROOF KNOCKING II: ADVANCE WARNING ...... 56 8.1 PRECAUTIONARY MEASURES ...... 56 8.2 ROOF KNOCKING AS AN ‘EFFECTIVE ADVANCE WARNING’ ...... 58 8.2.1 The recipient ...... 58 8.2.2 The temporal aspect ...... 59 8.2.3 The method ...... 59 8.2.4 The content ...... 60
2 8.5 CONCLUSION ...... 62 CONCLUSION ...... 63 BIBLIOGRAPHY ...... 65
List of abbreviations
AP I Additional Protocol I to the Geneva Conventions 1949 AP II Additional Protocol II to the Geneva Conventions 1949 EU European Union ICJ International Court of Justice ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the former Yugoslavia IDF Israeli Defence Force IHL International Humanitarian Law IHRL International Human Rights Law UN United Nations
3 Introduction
The protection of civilians and civilian objects during armed conflicts is one of the core purposes of humanitarian law, a branch of international law also known as the law of armed conflict and the law of war.1
The law related to the use and application of armed force (the jus ad bellum) must be separated from IHL (the jus in bello). These two bodies of law must be clearly distinguished. The former sets forth the criteria for the use of force as an instrument of national policy or self-defence, asking when a state may use force. The latter, the jus in bello, answers the question on how force may be used once an armed conflict exists.2 This thesis will focus on IHL or, in other words, on the jus in bello.
Formally speaking, IHL consists of two bodies of law, namely Hague law and Geneva Law. Hague law regulates hostilities, including the targeting of individuals and objects and provides for prohibitions or restrictions to the means and methods of warfare. Geneva law provides protection for categories of people who are particularly vulnerable, such as the sick, the wounded and those with a ‘prisoner of war status’. These two bodies of law have merged in contemporary IHL and cannot be strictly separated these days.
Though IHL places emphasis on protection of the civilian population, it is recognized that not all civilian casualties are unlawful. It is generally accepted that injuries may occur as a result of a lawful attack, under the condition that parties to the conflict try to minimize, as far as possible, the injuries to civilians as a result of a military attack. Following this condition, several principles that originate from international customary law may be distinguished: One of the “cardinal principles” of IHL and one of the
1 Schmitt, Michael N. (1999) ‘The Principle of Discrimination in 21st Century Warfare’, Yale Human Rights and Development Journal: Vol. 2: Iss. 1, Article 3., p.2 2 Schmitt, Michael N. (1999) ‘The Principle of Discrimination in 21st Century Warfare’, Yale Human Rights and Development Journal: Vol. 2: Iss. 1, Article 3., p.3
4 “intransgressible” principles of international customary law that protects persons and objects is the principle of distinction.3 Related to this are the principle of prohibition on indiscriminate attacks, the principle of proportionality and precautionary measures.4 Each of these components can be found in customary law and are codified in AP I to the Geneva Conventions (hereinafter: AP I).
The principle of distinction, codified in articles 48, 51(2) and 52(2) of AP I, refers to the requirement of distinguishing between civilians and military targets.5 Parties are prohibited to carry out direct attacks against civilians and must make all possible efforts to spare human lives, by distinguishing civilians from combatants and objects from military targets.6 The ICRC underlines that according to article 51(3) AP I and common article 3 to the Geneva Conventions, civilians lose their immunity from being directly attacked “for such time as they take a direct part in hostilities”.7 Civilian objects lose their immunity once they become lawful military targets: Once intelligence has verified the fact that a civilian building is being used for a military purpose, that building becomes a lawful military target.8 Related to the principle of distinction are; - The prohibition on indiscriminate attacks9, which prohibits attacks that cannot be directed at specific military objectives or whose effects cannot be limited.
3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, para. 434 4 Gaston, E.L.’Laws of War and 21st Century Conflict’, International Debate Education Association, 2012, p. 80 5 Gaston, E.L.’Laws of War and 21st Century Conflict’, International Debate Education Association, 2012, p. 80 6 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted by Conference June 8, 1977, 1125 U.N.T.S. 3, Article 52(1) 7 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. XXXV 8 D. Daoud ,Everything you need to know about international law and the Gaza war, in: the Tower Magazine, September 2014, available at: http://www.thetower.org/article/everything-you-need-to-know-about- international-law-and-the-gaza-war/ 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 51(4)
5 - The rule of proportionality10 requires parties to draw up a balance when they engage in an attack upon a military objective and this attack is likely to affect civilians. The balance should be struck between ‘the concrete and direct military advantages anticipated’ and ‘the incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof’. If the latter appears to be excessive in relation to the military advantages, the law prohibits the attack.11 - The principle of precautionary measures requires parties to take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.12 Article 57(2) AP I gives a non-limitative list of precautions.13 Many states have interpreted the duty to take “feasible” precautions as being limited to those precautions which are executable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.14 Protocol II, III and amended protocol II to the Convention on Certain conventional Weapons define feasible precautions in the same terms.15
One of the required precautions is codified in article 57(2)(c) AP I and demands that “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”16
10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 51(5)(b) and repeated in Article 57 11 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 51(5)(b). See: Practice related to Rule 14; Proportionality in Attack. Available at: https://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter4_rule14 12 See Customary IHL, Rule 15; Precautions in attack. Available at: https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter5_rule15 13 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 57(2) 14 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 54 15 Protocol II to the Convention on Certain Conventional Weapons, Article 3(4) (cited in ICRC Customary international law Vol. II, Ch. 28, para. 4); Protocol III to the Convention on Certain Conventional Weapons, Article 1(5) (cited in ICRC Customary international law Vol. II, Ch. 30, para. 109); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(10) (cited in ICRC Customary international law Vol. II, Ch. 28, para. 4). 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 57 (2)(c)
6
In the most recent Gaza conflict, the IDF warned civilians through broadcast methods, by dropping leaflets, sending text messages and making telephone calls.17 Furthermore, the IDF introduced a new, highly controversial, warning method known as the “knock on the roof” method.18 The method consists of warning shots from light weapons that hit the roofs of the designated targets before proceeding with the actual strike. According to the IDF, the method is used in order to avoid civilian casualties and to minimize collateral damage.19
Concerns have been heard on the legality of the conduct of roof knocking. Several human rights groups state that the method cannot be considered a warning. “It is the targeting of civilians with a weapon, regardless of how small, and it is a violation of the Geneva Conventions”.20 According to some criticisms, the conduct of roof knocking is an act of force; it therefore constitutes an attack and can never be considered to be a warning under International law. Others do not refer to roof knocking as inherently illegal but state that the method constitutes an ineffective warning. These different points of view will be further elaborated on in chapter 6.
In this thesis the conduct of roof knocking will be analysed in order to answer the question of whether roof knocking could constitute a legal and effective warning under International Law. To do so, the principles of distinction, the principle of proportionality and precautionary measures will have to be fully analysed.
17 Pnina Sharvit Baruch & Noam Neumann, “warning civilians prior to attack under international law: Theory and practice”, International Law studies Series, US naval war college, vol 87, p. 369 18 Israel, Ministry of Foreign affairs, the Operation in Gaza 27 December 2008-18 January 2009: Factual and Legal aspects, 29 July 2009, para. 264 In practice this method was rarely used prior to the Gaza operation of December 2008. The method has been criticized in the Goldstone Report of the UN fact-finding mission, in Reports of Human Rights Watch and Amnesty International. 19 IDF Report: ‘Investigation of exceptional incidents’ at Incidents Concerning Cases Closed by the MAG Following a Fact-Finding Assessment after point 3. Available at: http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/Operation-Protective-Edge- Investigation-of-exceptional-incidents-7-Dec-2014.aspx 20 Mahmoud Abu Rahma, Director of International Relations of the Al Mezan Center for Human Rights.
7
The conflict in the Gaza strip forms the main case study, because the practice was introduces here. The applicable legal frameworks shall be analysed and the conduct of roof knocking will then be analysed in the light of the applicable rules.
The first assessment in this thesis should be to determine whether ‘roof knocking’ is inherently illegal. If this is the case, no further analysis is required. If, however, the conduct of roof knocking is not illegal per se, a case- by-case assessment is called for, since it depends on the specific circumstances of each case whether the warning is effective. The objective of this thesis is to provide guidance in determining if and when the conduct of roof knocking can constitute a legal and effective warning.
The main research question is as follows:
“Does ‘roof knocking’ as a warning method constitute a lawful and effective warning under International Law?”
In order to answer this question, the following issues are to be addressed. w What is the applicable legal framework? w Which rules can be deduced from the applicable framework with regard to the current situation? w What do the applicable rules require? w What is the current practice of roof knocking? w Is the conduct of roof knocking inherently illegal? w Can the conduct of roof knocking be categorized as a warning?
In order to place the specific legal positions into context, this thesis will begin in chapter 1, with a brief overview on the historical context of the conflict and the current situation in the Gaza strip. Chapter 2 is designed as an introduction to the specific applicable framework and the decisive criteria for
8 the framework to be applied. IHL is the set of rules that applies in case of an armed conflict. The author will determine whether the requirements of ‘armed conflict’ are met in the current situation. Furthermore, the applicability of IHRL will be taken into consideration and the question whether IHL will prevail over IHRL.
Chapter 3 will elaborate on the distinction of IAC and NIAC during IHL. The author will use case law as an indicative source for the situation in Gaza and the necessity of categorizing the current conflict for the sake of answering the research question.
A major part of IHL is contained in the four Geneva Conventions of 1949.21 Since the principle of distinction, the principle of proportionality and precautionary measures are specifically codified in AP I, it is important to have a full understanding of the provisions codified in this protocol. Israel however, is not a party to AP I. In order to establish the scope of application of the principles that the Protocol enshrines in a given situation, it is important to give an answer to the question; if, and to what extent, these provisions might work as international customary law. Chapter 4 will therefore explain how customary international law is determined. The ICRC’s study on the rules of customary international law will be used as guidance thereto.
Having established the focus on customary IHL, chapter 5 will consider the specific principles, which are necessary to take into consideration for the purpose of answering the main research question. The principle of distinction, the principle of proportionality and precautionary measures are codified in AP I and function as an indicative source for customary IHL.
In order to examine the conduct of roof knocking in light of the previously mentioned principles, one should have knowledge of the actual practice of roof knocking in the Gaza strip. Chapter 6 will elaborate on the practice and
21 ICRC Advisory service on International Humanitarian Law, “What is IHL”, July 2004, available at: https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf
9 will demonstrate the controversies of the practice by addressing some critics from human rights organizations.
Chapter 7 will answer the question whether the practice could possibly meet the requirements of customary IHL. Roof knocking, by its nature, constitutes an act of violence and should be addressed as an attack under IHL. Therefore, in order for the practice to not be inherently illegal, it must satisfy the principle of distinction and proportionality.
Finally, in chapter 8 the conduct of roof knocking will be assessed in the light of warning method. At first sight, it seems odd to conduct an attack with the purpose of warning civilians. It could however constitute a warning, if it meets the requirements of an effective advance warning, as envisaged in article 57(2)(c) API. Chapter 8 will examine whether the content and method of roof knocking is clear and sufficient enough to meet those requirements.
After the examination of roof knocking as a warning method, the main research question has been answered. However, it might be interesting to see whether the practice could meet another provision of precaution in attack. Therefore, chapter 8 will analyze whether the practice could in any case, being a part of the attack, constitute a feasible precaution as codified in article 57(2)(a)(ii) AP I.
1. The conflict in Gaza
IDF has used the conduct of ‘roof knocking’ as a warning method in Operation Cast Lead in 2008-2009 as well as Operation Pillar of Defense in 2012.22 Since it is important to understand which parties are involved in the conflict in order to apply the correct legal framework and in order to get a better understanding on the specific law-claims, this chapter will give a brief overview of the important historical events that have occurred on the Gaza strip relating to these operations.
22
10
1.1 Disengagement plan and the status of the territory
Gaza has a long history, but for the purposes of this thesis we focus on 2005 when Israel elected to supplement a unilateral disengagement plan from the Israeli occupied territory. The primary implication of the disengagement plan was set out in principle 6 of section 1 (political and security implications):
“The completion of the plan will serve to dispel the claims regarding Israel's responsibility for the Palestinians in the Gaza Strip.”23
This statement remains ambiguous: it refers to the termination of Israel’s responsibility for the population of Gaza, but says nothing about the status of the territory itself. However, article 3(i)(1) of the plan shows the intention to maintain effective control over the Gaza strip, which indicates that the Gaza remains an occupied territory by Israel.24 “Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and will continue to exercise security activity in the sea off the coast of the Gaza Strip,”25
1.2 Elections 2007
In 2007, Hamas, the Palestinian-Islamic movement, which aspires to end the Israeli occupation of Palestine, emerged as a political party. Israel and the international community have boycotted Hamas as a terrorist group.26 Following the elections, the United States, Russia, the UN and the EU, also known as the Middle East Quartet, issued a statement that Hamas would have to meet the following three conditions: 1) renouncing terrorism, 2) accepting
23 Israeli Disengagement plan, Section 1, Principle 6, Available at: www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan +6-June-2004.htm 24 Article 42 of the Hague Regulations of 1907 “The test of occupation is the ‘Effective control’ test, which exists if the military forces of the adversary could, at any time they desired, assume physical control of any part of the country” (Hostages case, UN War crimes Commission, Law reports of Trials of War Criminals, Volume VIII, 1949, p. 56) 25 Disengagement plan. See footnote 23, Art. 3(i)(1) 26 Office of the Coordinator of Counterterrorism, Country Reports on Terrorism 2011, chapter 6. Foreign Terrorist Organizations. July 2012. Available at: http://www.state.gov/j/ct/rls/crt/2011/195553.htm#hamas
11 previous Israeli-Palestinian agreements, and 3) recognizing Israel’s right to exist.27 If Hamas refused to observe these conditions, the Middle East Quartet would suspend financial aid to the Palestinian Authority.28 Since Hamas continued to fire rockets into Israel, the Quartet followed through with its warning and imposed an economic embargo. Israel also conducted military campaigns in its attempts to deter Hamas from further use of violence.29
Six months after its election, Hamas militants launched a raid into Israel from the Gaza strip, killing two soldiers and capturing an Israeli reservist, Corporal Gilad Shalit. In response, Israel launched Operation Summer Rains three days later.30
In June 2007 Israel and Egypt closed their borders with Gaza. As a result of the closure, traffic of goods, fuel and energy supplies into and out of the Gaza strip, were halted. The blockade was justified by Israel through arguing that ‘‘all needs which go beyond humanitarian needs will not be supplied by Israel to the Gaza Strip.’’ This was reasoned and justified by the fact that Hamas was a “hostile entity”.31
1.3 Operation Cast Lead, December 2008
Hamas’ resistance to the occupation of Palestine by Israel, and its claim that Israel should cease the blockade of the Gaza strip on one hand, and Israel’s claim that Hamas should recognize Israel’s existence on the other, led to a period of counter reactions, including the firing of rockets into Israeli territory. In December 2008 Israel launched operation Cast Lead against
27 Helfont, T. Egypt’s wall with Gaza & the emergence of a new middle east alignment, p. 427, Summer 2010 28 ‘Press Statement: Quartet Statement on the Situation in the Middle East,’ The U.S. Department of State, Washington D.C., January 30, 2006, available at
12 Hamas in Gaza. The Gaza war led to a high amount of casualties on the Palestinian side due to Israel’s superior military capability and Hamas’ use of the civilian population as “shields”. The situation in Gaza under Hamas had further retrogressed.32
1.4 Operation Pillar of Defense, November 2012 & Operation Protective Edge, July 2014
There have been multiple efforts to get both sides to agree to ceasefire, but truces were always short-lived. In November 2012 Israel killed Ahmed Jabari, chief of Hamas’ military wing in Gaza during a targeted airstrike on his car. Hamas responded by firing rockets on Israeli towns. Israel embarked in the second military operation called, operation Pillar of Defense. The most recent operation, operation Protective Edge in 2014, began in order to stop Hamas’ rocket fire that targeted Israeli civilians and the discovery by Israel’s security forces of Hamas’ underground tunnel network leading out of Gaza.33
The conduct of roof knocking was introduced in operation Cast Lead, but has been used in the other operations as well in order to warn the Palestinian civilians prior the attack. Before the conduct of roof knocking is further analysed, the next chapter turns to a legal assessment of the applicable legal framework.
2. The applicable legal framework
In order to give an answer to the question whether the conduct of roof knocking may constitute a legal and effective warning under international law, it is important to address the correct legal frameworks and to analyse to what extent they apply with regard to the issue at hand.
32 Helfont, T. Egypt’s wall with Gaza&the emergence of a new middle east alignment, p. 429, Summer 2010 33 See:
13 2.1 The applicability of IHL
For determining whether rules of jus in bello apply, it must be established that an armed conflict exists.34 After concluding that such a conflict exists, it is important to analyse the status of the conflict at hand in order to assess the specific applicable rules to the situation.
According to common article 2 of the 1949 Geneva Conventions, IHL regulates ‘armed conflict’:
“..The Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance..”35
In determining the existence of an armed conflict, one might face some challenges: when and where is the conflict taking place, who is taking part in it and are there types of armed conflicts that fall outside IHL’s scope?
The definition of armed conflict has no widely accepted definition in any treaty. In the sources of international law, however, significant evidence shows that the international community embraces a common understanding of armed conflict.36 The Use of Force Committee of the International Law Association 37 confirmed that all armed conflict is defined by certain characteristics that distinguish it from situations of non-armed conflict or peace. The two characteristics that apply to all armed conflict are: 1.) The existence of organized armed groups
34 ICRC’s practical guide, Arms transfer decisions; applying international humanitarian criteria, p.6 Under paragraph 3.2. 35 Geneva Conventions of 12 August 1949, Article 2 36 International law associations, the Hague conference (2010), “USE OF FORCE final report on the meaning of armed conflict in international law”, p.2 37 Mandated by the Executive Committee of the International Law Association to produce a Report on the meaning of war of armed conflict in International law, May 2005.
14 2.) Engaged in fighting of some intensity38
Even though the ICTY primarily rules over the NIAC in Prosecutor v. Tadić39, it dismissed the general argument that an armed conflict only existed in those parts of a State where actual fighting is taking place at any given time. The Appeals Chamber held that there is nothing in the Geneva Conventions or other rules of humanitarian law to justify such an assumption:40
“An armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”41
With regard to the question of whether IHL is applicable to the situation in Gaza, it is of importance to establish whether the situation entails an armed conflict by definition. First, both parties to the conflict, Israel as well as Hamas, make use of organized armed groups. Second, considering the specific facts that have been introduced in chapter 1, both parties have engaged in fighting of great intensity. Since the characteristics that refer to an armed conflict are clearly evident in the current situation, we may conclude that IHL is applicable in the situation of Gaza.
2.2 The applicability of IHRL
Human rights are inherent entitlements that belong to every person as a consequence of being human being.42 They apply in all circumstances, even
38 International law associations, the Hague conference (2010), “USE OF FORCE final report on the meaning of armed conflict in international law”, p.2 39 ICTY, The Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995 40 Greenwood, C., “International humanitarian law and the Tadic Case”, European Journal of International Law, 273, vol 7, 1996 41 ICTY, The Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70. 42 ICRC Advisory service on International Humanitarian Law, “international humanitarian law and human rights law (similarities and differences)”, january 2003 Available at https://www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf
15 though it is true that certain treaty instruments, once ratified, authorise the parties to suspend the application of a part of their obligations in a situation of exceptional emergency.43 Even though IHRL remains applicable during times of armed conflict, IHL and IHRL cannot simultaneously govern one and the same legal fact or act.44 This raises the legitimate question of the relations between the two regimes. During the 27th round table ‘on current problems of international humanitarian law’45 the participants agreed that the existence of an armed conflict could permit the suspension of the application of derogable human rights, but only to the extent necessary. The non-derogable rules continue to apply and complement IHL.
The great majority of the participants during the round table recalled that IHL represented a special law in as much as it has been specifically framed to apply in a period of armed conflict.46 Once the transition to an armed conflict is complete, IHL proves to be the body of law most appropriate. In many cases, IHL specifies the precise content of non-derogable provisions of human rights.47 With regards to the interplay between the bodies of law in the
43The international Institute of Humanitarian Law in cooperation with the International Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 8 Available at: https://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf 44 The international Institute of Humanitarian Law in cooperation with the International Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 8 Available at: https://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf 45 The international Institute of Humanitarian Law in cooperation with The International Committee of the Red Cross, XXVIIth Round Table on Current Problems of International Humanitarian Law, San Remo(Italy)Geneva (Switzerland) November 2003 46 The international Institute of Humanitarian Law in cooperation with the International Committee of the Red Cross, XXVIth round table on Current Problems of International Humanitarian Law: “international Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence”, summary p. 9 Available at: https://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf 47 ICJ in its Advisory Opinion, 8 july 1996, legality on the threat or use of nuclear weapons, para. 25: “In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict, which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflicts and not deduced from the terms of the Covenant itself."
16 situation of Gaza, IHL is the body of law that contains detailed provisions relating to precautions in an attack.48 As such, IHL is the primary - or even the exclusive - legal regime in relation to how attacks must be conducted. The rules of IHL may prevail by virtue of the principle of lex specialis.
Furthermore, the provisions of IHRL do not set a basis for answering our research question, which focuses on the legality of roof knocking in the light of feasible precautions, specifically in the light of the obligation to warn. Since IHRL does not contain any provision with regard to the requirements of precautions, an analysis of this body of law would not give a satisfying solution with regard to the current research question.
2.4 Conclusion
Following this chapter we may conclude that it is, for the purposes of this thesis, not necessary to analyze the full framework of IHRL in depth. Two reasons justify this: First, once IHL applies it would prevail over IHRL as a matter of lex specialis. Second, the provisions of IHRL do not set a basis for precautions in attack.
IHL only applies when an armed conflict occurs. In order for an armed conflict to occur, two characteristics must be met: 1) the existence of an armed organization, and 2) the parties engagement in fighting of some intensity. Since both characteristics are met in the current situation, IHL is applicable and needs to be further analyzed in order to answer the research question.
3. International humanitarian law
In the previous chapter we concluded that IHL applies in the current situation. In order to get a clear understanding of the framework we are analyzing, it is important to understand how the rules of IHL apply to armed
48 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 57; Protocol II to the Convention on Certain Conventional Weapons, Article 3(4); Protocol III to the Convention on Certain Conventional Weapons, Article 1(5); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(10).
17 conflict. This chapter will briefly discuss the sources of IHL and will then turn to the types of armed conflict that should, in principle, be distinguished. Furthermore, this chapter will answer the question whether such a distinction is important with regard to the Gaza-conflict.
3.1 Sources of International humanitarian law
The sources of IHL can be diverse, ranging from treaty instruments to customary law to general principles. A list of legal sources for IHL would be: - The four Geneva Conventions, which have come to be internationally binding for all states.49 - The Three protocols additional to the Geneva Conventions. Additional Protocol I’s provisions are largely declaratory of customary international law or reflect general principles of law and are thus applicable in all international armed conflicts.50 - Other Agreements, which refer to specific issues of warfare and the prohibition or restriction of certain weapons.51 - Principles of customary international law and general principles of law.
3.2 Types of armed conflict
In the context of applying IHL, it might be important to distinguish two types of conflict since they are principally governed by a different set of rules. Which set of rules of IHL applies depends, traditionally, first and foremost on who the parties to the conflict are.52 Which set of rules apply, thus depends on the type of armed conflict. IHL distinguishes IAC with belligerent occupation
49 O’Connel, Mary Ellen, ‘Historical development and legal basis’ in: Fleck, D. (ed), the handbook of international humanitarian law, Third edition, Oxford University Press, p.26 50 C. Greenwood, ‘customary law status of the 1977 Geneva Protocols’ in: A.J.M. Delissen and G.J. Tanja (eds), Humanitarian law of Armed Conflict – Challenges Ahead: Essays in Honour of Frits Kalshoven (Nijhoff, 1991), p. 93; D. Fleck, ‘The protocols Additional to the Geneva Conventions and Customary International Law’ (1990) 51 See for the most important documents: O’Connel, Mary Ellen, ‘Historical development and legal basis’ in: Fleck, D (ed.), the handbook of international humanitarian law’, Third edition, Oxford University Press, p.30 52 International law associations, the Hague conference (2010), ‘USE OF FORCE final report on the meaning of armed conflict in international law’, p.9
18 as a sub-category, from NIAC.53 In the following paragraphs the IAC and NIAC will be analyzed in depth.
3.2.1 International armed conflict
The definition of an IAC is the most clear. It is understood to include any armed conflict between two states.54 The ‘High Contracting Parties’ referred to by common article 2 of the four Geneva Conventions are traditionally understood to be States.55 The existence of an IAC is a matter of fact and is not dependent upon the subjective views of the parties to the armed conflict, whether or not they agree with the existence of the armed conflict. The only condition to an IAC is that one or more States have taken recourse to armed force against another State, regardless of the reason or intensity of the confrontation.
3.2.2 Non-international armed conflict
Alongside interstate conflicts, there are also internal conflicts. That is why it is of great importance that the law of armed conflict also covers the NIAC. The classification for NIAC is primarily reserved for reasonably intensive internal violence between States and organized armed groups.56
Despite the fact that NIAC has no exact definition in treaty law, it has now been recognized that an armed conflict of a non-international character exists, when there is protracted armed violence within the territory of a State between governmental authorities and organized armed groups or between
53 ICRC, ‘How is the term ‘Armed conflict’ defined in International Humanitarian Law?’ Opinion paper, March 2008, p.1, Available at: https://www.icrc.org/eng/assets/files/other/opinion- paper-armed-conflict.pdf 54 Proceeding of the 13th Bruges Colloquium, scope of application of International Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012, https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf p.20 55 ICRC, ‘How is the term ‘Armed conflict’ defined in International Humanitarian Law?’ Opinion paper, March 2008, Available at: https://www.icrc.org/eng/assets/files/other/opinion- paper-armed-conflict.pdf 56 Proceeding of the 13th Bruges Colloquium, scope of application of International Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012, p. 20,https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pd f p.20
19 these groups. Besides that, the hostilities must reach a minimum level of intensity.57 This has been established by the ICTY in Prosecutor v. Tadić58.
The geographical scope of NIAC has become less clear for two reasons. First, International Criminal Tribunals have been using different expressions in determining the area of the conflict and applicable law. Second, it has become accepted that in certain circumstances NIAC can extend beyond the internal territory of a State.59 This is the situation in case of a transnational conflict: When a conflict between a State and a non-state actor beyond the borders exists.60
Even though, lawyers might argue it fits the scope of the IAC, the definition of the transnational conflict does fit into the classical definition of the NIAC (‘not between States’).61
3.3 Belligerent occupation
The applicability of IHL to belligerent occupation has in recent years presented us with some interesting challenges, temporarily and geographically. Gaza as a conflict remains a hotly debated subject within the discussion on the law that is applicable to situations of belligerent occupation. Since the disengagement plan of 2005, the situation in Gaza has become an
57 ICTY, The Prosecutor v. Dusko Tadić, Case no. IT-94-1-T, 7 May 1997, para. 561-568; see also ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 84. 58 The Prosecutor v. Dusko Tadić , Case No. IT-94-1-AR72, ICTY Appeals Chamber, 2 October 1995 59 Proceeding of the 13th Bruges Colloquium, scope of application of International Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012, p. 20, https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf p.20 60 Proceedings of the Bruges Collequium, Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities, in: Collegium no. 40 (academic journal of the College of Europe) October 2009, p.31, Available at: https://www.coleurope.eu/content/publications/pdf/Collegium40.pdf 61 Proceedings of the Bruges Collequium, Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities, in: Collegium no. 40 (academic journal of the College of Europe) October 2009, p.31, Available at: https://www.coleurope.eu/content/publications/pdf/Collegium40.pdf
20 awkward fit for the definition of military occupation.62 The legal consequence for categorizing the situation as a belligerent occupation would be that Israel is obliged to send troops back inside, in order to fulfil its obligation to maintain law and order.63 Although it is clear that Israel maintains certain elements of control over the lives of the Gaza population and that this comes with certain responsibilities, it is not desirable to categorize the current situation as an belligerent occupation and to oblige Israel to maintain law and order on the Gaza strip.
The key element for what constitutes a belligerent occupation is the existence of “effective control”.64 One important element of exercising effective control is the physical presence within the territory; the obligations and rights conferred upon the Occupying Power require, in order to be given effect, physical presence in the occupied territory.65 Since the element of physical control is no longer fulfilled, the law of ‘armed conflict’ should be assessed and not the law of ‘belligerent occupation’.
Case law on the subject of occupation in Gaza leads, despite its slightly different argumentation, to the same conclusion:
62 The definition of military occupation can be found in article Article 42 of the Hague Conventions, which states that “territory is considered occupied when it is actually placed under the authority of the hostile army” and that “[t]he occupation extends only to the territory where such authority has been established and can be exercised.” Article 6 of the Fourth Geneva Convention merely describes the legal duties of an occupier as existing only to the extent that the state in power “exercises the functions of government in such [occupied] territory.” 63 Hague Conventions 1907, Article 43 64 Beyond the two sources of occupation (see note 62), international law provides little as to what constitutes an occupation. The term ‘effective control’ is consistently applied in case law and state practice to assess the exercise of authority in a territory and the existence of an occupation. Effective control is a condition sine qua non of belligerent occupation. See: Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 43-44. An occupation would come into existence only to the extent to which the foreign army could exercise a certain degree of control over the territory in question. See Doris A. Graber, The Development of the Law of Belligerent Occupation, 1863– 1914: A Historical Survey, Columbia University Press, New York, 1949. 65 See, for instance, Articles 43, 46, 52, 53, 55, and 56 of the Hague Regulations, and Articles 55, 56, 59, and 66 of GC IV and T. Ferraro, ‘Determining the beginning and end of an occupation under international humanitarian law’, in international review of the Red Cross Volume 94 number 885, Spring 2012, p.144
21 In the case of Bassiouni v. Prime minister66 the Israeli Supreme court faced the challenge to specify the Status of Gaza under International law and to identify the scope of Israel’s obligations vis-à-vis the residents of Gaza. Paragraph 12 of the judgement contains the court’s position on the applicable legal framework. The paragraph reads as follows:
“[Since September 2005 Israel no longer has effective control over what happens in the Gaza Strip. The military government that was in force in this territory in the past was ended by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happens there. In these circumstances, the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip under the law of belligerent occupation or under international law. Neither does Israel have any effective ability, in its present position, of enforcing order and managing civilian life in the Gaza Strip. In the prevailing circumstances, the main duties of the State of Israel relating to the residents of the Gaza Strip derive from the state of armed conflict that exists between it and the Hamas organization that controls the Gaza Strip; these duties also derive from the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip, as well as from the relationship that was created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the territory, as a result of which the Gaza Strip is currently almost completely dependent upon the supply of electricity from Israel.]”
The court premised the outcome of the case on the applicability of the law governing armed conflict.
3.4 Distinction between IAC and NIAC in the current situation
As we have seen in paragraph 3.1, the sources of IHL range from treaty law to customary law. While the four Geneva Conventions enjoy universal adherence today, this is not yet the case for other treaties, including the Additional Protocols.
There are two important impediments to applying these protocols to current armed conflicts. Firstly, the protocols apply only to the States that have ratified them. Secondly, treaty law does not regulate a large proportion of
66 HCJ 9132107 Gaber Al-Bassiouni v. The Prime Minister [Jan.30,20081 (unpublished). See the Israeli Supreme Court website for an official English translation, http://elyonl.court.gov.i~files~engl 07/320/091ln25/07091320.n25.pdf.
22 today’s armed conflict in sufficient detail, since most armed conflicts these days have a non-international character.67
AP II, which applies to the NIAC, contains 15 articles with only a rudimentary regulation of the conduct of hostilities.68 Since the conduct of hostilities should be the main focus in this thesis, one should address AP I. As briefly mentioned in the introduction of this thesis, the principles that are important to analyze, are specifically codified in AP I to the Geneva Conventions 1949.69 AP I is however, directed to the IAC as can be concluded from its title; Protection of Victims of International Armed Conflict.
In some cases, it might be relevant to distinguish IAC from NIAC in order to decide on the applicable codified law due to this extensive protection offered during IAC.70
In the Bassiouni v. Prime minister-case, the court has not given a clear view whether the armed conflict has an international or a non-international character. If one makes the effort to classify the conflict of Gaza into an IAC in order to review the conduct of roof knocking in the light of AP I, the fact that Israel did not ratify the protocol remains.
For the purposes of the thesis, it is not of great significance to categorize the armed conflict of Gaza since it would not make a difference for the application of AP I.
67 Jonathan Horrowitz (Legal officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program), IHL doesn’t regulate NIAC Internment – A drafting History Perspective, Guest post at: http://opiniojuris.org/2015/02/09/guest-post-ihl-doesnt- regulate-niac-internment-drafting-history-perspective/ 68
23 3.5 A focus on customary IHL
Since the AP I contains rules that also have the status of customary IHL, it remains possible and important to analyze the Protocol. Rules of customary IHL apply to all parties to the conflict, without the need for formal adherence.71
State practice and case law have demonstrated that the rules of customary IHL on the taking of precautions in attack are more or less the same in both types of armed conflict.72
In the ICTY’s judgement on the Tadic case, the ICTY outlined the guiding principle that “which is prohibited in international armed conflict, cannot but be prohibited in non-international armed conflict.” 73 What this essentially meant was that the law of IAC governing hostilities could apply to situations of NIAC.
States also tend not to make a distinction between international- and non- international armed conflicts with regard to the applicable law in this respect.74
The fact that many rules of customary IHL apply in both IAC and NIAC shows the extent to which State practice has gone beyond existing treaty law and expanded the rules applicable to NIAC. In particular, the gaps in the regulation of the conduct of hostilities in AP II have largely been filled
71 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. XVI (Foreword by Dr. Jakob Kellenberger) 72 Proceeding of the 13th Bruges Colloquium, scope of application of International Humanitarian Law, in: Collegium (academic journal of the College of Europe) October 2012, p. 28 https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf p.20 73 Prosecutor v. Tadić, Case no. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paragraph 119. 74Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. XVI (Foreword by Dr. Jakob Kellenberger)
24 through State practice. This has led to the existence of rules parallel to those in AP I, but applicable as customary law to a NIAC.75
3.3 Conclusion
In this chapter it has been demonstrated that it might be important to distinguish an IAC from a NIAC since the codified protection offered by IHL during an IAC is much more extensive then offered in a NIAC.
Furthermore, one has to determine whether the situation forms a belligerent occupation. Once, the answer is affirmative, a new set of rules applies and poses extra obligations on the occupying party. In the situation of Gaza, it remains controversial whether the law of occupation applies.
As we have seen in this chapter, the existence of a belligerent occupation depends on the existence of effective control with physical presence. Since the disengagement plan Israel has had no military officers present on the Gaza strip that exercise control. Therefore, the law of belligerent occupation does not pose extra obligations on Israel. In the current situation the law of armed conflict is applicable.
This has also been the conclusion of the Supreme court in Bassiouni v. Prime minister. The court ruled that the situation in Gaza at the time of the hearing was not governed by the law on occupied territory but rather by the law of armed conflict. In its decision, the court did not address the question of the specific type of conflict (IAC or NIAC) at hand.
For the purposes of this thesis it is not a prerequisite to categorize the conflict in Gaza, since we have seen that most rules of customary law, and specifically the rules governing hostilities, apply in both IAC and NIAC. The author will therefore analyse the principles in the light of customary IHL with due regard to AP I.
75 ICRC on Customary IHL see:
25 4. Determination of customary IHL
The driving force behind the development of IHL has been the ICRC, founded in 1863. It initiated the process, which led to the conclusion of the Geneva Conventions. The ICRC took the initiative to supplement these Conventions, resulting in the adoption in 1977 of two Additional protocols.76
Considering the fact that Israel did not ratify AP I, the rules of customary IHL are crucial for answering the research question. The ICRC’s study on the rules of customary IHL provides a guideline for the analysis of the customary rules. The following chapter will demonstrate how the ICRC determined the existence of customary IHL.
4.1 Customary IHL
It is widely agreed upon that the existence of a rule of customary international law requires the presence of two elements, namely State practice (usus) and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).77
The approach to determining whether a rule of customary law exists was specifically set out in the North Sea Continental shelf cases, in which the ICJ stated that; "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."78
76 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. XXXII Introduction Cambridge University Press 77 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 178 78 International Court of Justice, Reports 1969, North Sea Continental Shelf cases, p. 45, para. 77
26 4.1.1 Usus
State practice, both physical (referring to the actual behavior of States), and verbal (such as manuals, national legislation, case law, comments and opinions), contribute to the creation of customary international law. Besides contribution of States, International Courts as well can contribute to the emergence of a rule of customary international law. Even though they are not State organs; a finding of the court that a rule of customary law exists may be an evidence of existing State practice.79
The practice of the State, in order to establish customary law, must meet specific criteria. According to the ICJ “to establish a rule of customary international law, State practice has to be virtually uniform, extensive and representative”.80
First, for State practice to create a rule of customary law, it must be virtually uniform. This translates to reasonably consistent and uniform State practice.81 It might be the case that a State acts contrary to the practice, which in principle undermines the uniformity. This contrary practice will however not challenge the emergence of customary law when other States condemn it.82
Second, the practice must be extensive and representative. This entails that the practice must “include that of States whose interests are specially affected.”83 With respect to the rules of IHL, all States have a legal interest in requiring respect for it by other States. The countries that actually participate in the
79 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 179 80 International Court of Justice, Reports 1969, North Sea Continental Shelf cases, p. 43, para. 74. 81 J. Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, Oxford University Press, 2012) p. 23-30 and 33-34; A. Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) p. 157 and 167-169; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgement of 26November 1984 [1986] ICJ Reports 14, p.186 82 International Court of Justice, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 98, para. 186. 83 International Court of Justice, North Sea Continental Shelf cases, p. 43, para. 74.
27 armed conflict are the ‘specially affected’. Hence, for the emergence of customary IHL, the practice of all States must be considered, whether or not they are ‘specially affected’ in the strict sense of that term.84
4.1.2 Opinio Juris sive necessitatis
Opinio juris refers to the reasoning why States act in specific ways. The opinio juris is the legal conviction of States that the rule concerned, which carries out an obligation or a right, is the right rule. In the ICRC’s study on customary IHL, it was held that in most cases it is merely theoretical to separate the elements of State practice and legal conviction. Often, the same act reflects both. In those cases it is not necessary to demonstrate the existence of opinio juris. Sometimes however, the practice may not be clear-cut.
In those cases it is the opinio juris that determines whether the ambiguous practices counted towards the establishment of custom.85
The number of ratifying states might be useful as an indication for the existence of customary international law. It is however not a fixed rule that treaties, which are not universally ratified, do not contain rules of customary international law, or vice versa.86
The ICRC’s methodology has received criticism. Examples of the criticisms are that the ICRC Study relied on State practice which is insufficiently dense to meet the ‘extensive and virtually uniform’ standard, that the study has put too much emphasis on written materials (such as military manuals) and that the study has given inadequate weight to the fact that some States remain non-
84 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 179 85 See, e.g., Permanent Court of International Justice, Lotus case (France v. Turkey), Judgment, 7 September 1927, PCIJ Ser. A, No. 10, p. 28 (the Court found that States had not abstained from prosecuting wrongful acts aboard ships because they felt prohibited from doing so) 86 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 183-184
28 parties to relevant treaties.87 Nevertheless, despite some flaws, the customary IHL study is generally considered to be an authoritative guide to customary IHL.
4.2 Conclusion
Since Israel did not ratify AP I, the conduct of roof knocking should be assessed in the light of customary IHL. The ICRC, in its study on the customary rules of IHL, derived the existence of customary rules by looking at the usus and opinio juris sive necessitates. Despite the addressed flaws, the study is considered to be an authoritative guide to customary IHL.
For the determination of applicable customary rules to the current conflict, the author will therefore take into consideration the ICRC study on customary IHL.
5. Provisions of customary international humanitarian law
In AP I pre-existing rules of customary international law are codified but it also lays a foundation for the formation of new customary rules.88 The ICRC, in its study on customary IHL, found that the basic principles of AP I have been very widely accepted. More widely than the ratification record of AP I would suggest.89 Many customary rules are identical or similar to those found in the Protocols. According to the ICRC study, examples of rules found to be customary and which have corresponding provisions in AP I include: the principle of distinction, the prohibition of indiscriminate attacks, the principle
87 John B. Bellinger and William J. Haynes, ‘A US government response to the International Committee of the Red Cross study on Customary International Humanitarian Law’ in International review of the Red Cross, June 2007, vol. 89 no. 866. Reports and documents. p. 444-448 88 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 187 89 Today there are 173 States Parties to AP I. International Committee of the Red Cross, Treaties and States Parties to Such Treaties, Available at http://www.icrc.org/ihl. A number of militarily significant States however, have not ratified AP I, including the United States, Israel, India, Iran, Indonesia, Malaysia, Pakistan, Singapore, and Turkey.
29 of proportionality in attacks and the obligation to take feasible precautions.90 For the purpose of this thesis, we will assess whether the conduct of roof knocking could meet the requirements of the principle of distinction, the principle of proportionality and the obligation to take feasible precautions. In the following paragraphs these principles and obligations will be analysed with reference to AP I.
5.1 Principle of distinction
Article 48 -- Basic rule
“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”91
Article 48 to the AP I constitutes the basic rule of protection and distinction. Article 48 is the foundation on which the codification of the laws and customs of war rests. The entire systems of The Hague and Geneva are founded on this rule.92 Its aim and purpose is to distinguish the combatants and military objectives from the civilian population and the civilian objects in order to protect and respect the civilian population and the civilian objects.
In order to apply this basic rule, it is significant to comprehend the distinction between ‘civilians’ and ‘combatants’ and the distinction between ‘civilian objects’ and ‘military objectives’.93 Therefore articles 50 and 52 of AP I provide us with more a thorough explanation.
90 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 187-188 91 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 48 92ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 598 93ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 600
30 The civilian population is defined in article 50 Additional Protocol I:
Article 50 -- Definition of civilians and civilian population
“1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”94
Many definitions of ‘civilian population’ have been formulated in the course of the history. According to the commentary on AP I all these definitions were lacking in precision and it was therefore desirable to lay down a more exact definition. 95 The only satisfactory solution would be to give a negative interpretation to the term: the civilian population exists of persons who are not a member of the armed forces. This negative character can be justified by the fact that the concepts of civilian population and armed forces are only conceived in opposition to each other. Since the latter is clearly defined in international law and determined in an indisputable manner by the articles to which article 50 refers, the negative definition of civilian population is considered to be sufficient and effective.96
Article 50 tends to define that, apart from the members of the armed forces, everybody physically present in a territory is a civilian. The article also covers cases in which the status of a person, who has not committed hostile acts, seems doubtful because of the specific circumstances. In any case, this person should not be attacked and should be considered to be a civilian, until
94 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 50 95ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 610 96 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 609
31 further information is available.97 This provision could be influenced by the methods used by combatants: if combatants do not clearly distinguish themselves from the civilian populations in accordance with the provisions of Article 44, this could result in a weakening of the immunity which is granted to civilians and the civilian population.98
There might be situations in which individuals, belonging to the category of combatants, become intermingled with civilian populations. This might be the case when soldiers on leave visit their families. Paragraph 2 of article 50 AP I provides that in those situations the civilian character of a population does not change and that the population should remain protected.99
Besides the categorization of people into the status of civilians or combatants, the principle of distinction covers the distinction between civilian objects and military objectives. Article 52 (2) of AP I describes what constitutes a military objective: Article 52 -- General protection of civilian objects
“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, 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 advantage.
3. 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.”100
97 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 612 98 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 612 99Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 12 100 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 52
32 Although States in general recognized that attacks should only be directed towards military objectives, there was no agreed definition of what constitutes such an objective. During warfare, each belligerent gave a different definition for the term ‘military objective’. This led to the necessity of a strict definition for the purposes of the principle of distinction. Article 52 to AP I was the first provision in an international treaty which defined a military objective. It begins by declaring civilian objects immune and continues with an ‘a contrario’ definition in defining military objectives.101
Similar to article 50, article 52 as well uses the negative interpretation- method in paragraph 1 since there are far more civilian objects then military objectives. 102 The Diplomatic Conference has consciously chosen not to describe the exact objects that may be attacked103, instead, they have chosen to constitute a valuable guide.
The guide comprises two elements. Whenever these two elements are simultaneously present, one may speak of a military objective in the sense of the Protocol: 1) The nature, location, purpose or use, which makes an effective contribution to military action; 2) The total or partial destruction, capture or neutralization, which in the circumstances ruling at the time offers a definite military advantage.
The first category comprises all objects directly used by armed forces. Military objectives by their nature are objects used to make an effective contribution to military action by its fundamental character. Examples are: weapons, equipment, transports, fortifications, depots, staff headquarters and
101 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 636 102 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 634 103 Even though, in its draft of the additional protocol, the ICRC had chosen to give a specific description
33 communication centres etc.104 There might be objects that by their nature do not constitute military objectives, but do make an effective contribution by their location.105 With regards to the criteria of purpose or use, one may think of buildings or objects that in principle constitute a civilian object, such as schools or houses, but are being used for the supplying of military forces.106 Members of the armed forces (including and especially with regard to their non-combatant members, with the exception of the specially protected medical and religious personnel) are effectively participating in hostilities. The members of armed forces therefore constitute military objectives as they clearly have these features of military objectives under customary law.107
The second element states that the destruction, capture or neutralization should offer a definite military advantage. In order to meet this requirement, those ordering the execution of the attack must have sufficient information in order to justify the destruction, capture or neutralization.
Finally, similar to article 50, paragraph 3 of article 52 protects the objects of which is not clear whether they constitute military objectives. The third paragraph sets a higher threshold in case of doubt. This paragraph serves the primary aim of the Protocol i.e., the safety of the civilian population.108
104 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 636 105 The ‘location’ criterion can result in specific areas of land such as a mountain pass, a bridgehead or jungle trail becoming military objectives. See for an analogical interpretation: Commentary to HPCR Munual on International Law Applicable to Air and Missile Warfare, rule 22 (b) 106 The ‘use’ of an object relates to its present function, with the result that a civilian object can become a military objective due to its use by armed forces. See for an analogical interpretation: Commentary to HPCR Munual on International Law Applicable to Air and Missile Warfare, rule 22 (d) 107 Knut Ipsen, Combatants and non-combatants in: D. Fleck (ed.), The handbook of International Humanitarian Law, Third edition, Oxford University Press, p. 99 108 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 636
34 5.2 The principle of proportionality
Article 51 -- Protection of the civilian population
“..5. Among others, the following types of attacks are to be considered as indiscriminate: ..(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated...”109
The principle of proportionality is codified in Article 51(5)(b) AP I. The principle of proportionality entails that whenever incidental loss, as a result of an attack, will be excessive in relation to the advantage anticipated, the attack is considered to be disproportionate.110 States have expressed that the principle of proportionality is essential to the aim and purpose of AP I, and therefore an important principle of international law relating to armed conflict.111
Evidence which suggests that the principle of proportionality in attack should be part of customary IHL can be found in case law of the ICJ and in a large number of military manuals. In their submissions to the ICJ in the Nuclear weapons case112, numerous States including States not, or not at the time, party to AP I, invoked this principle in their assessments of whether an attack with nuclear weapons would violate IHL. 113 The ICJ acknowledged the applicability of the principle.114 Furthermore, the principle of proportionality has been codified in several manuals. In Sweden’s IHL manual in particular,
109 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 51 (5)(b) 110 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 51 (5)(b) 111 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (cited in Vol. II, Ch. 1, para. 307); United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols. 112 ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, ICJ Reports 1996 113Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 48 114 ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, ICJ Reports 1996
35 the principle of proportionality is identified as a rule of customary law.115
The principle of proportionality does agree to the fact that some civilian harm may be acceptable but it must be carefully weighed up against the military advantage to be gained.
When an attack is launched as part of a military objective despite knowing that incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage, the attack constitutes a breach of customary IHL.116
Several States have interpreted ‘military advantage’ as the advantage anticipated from the military attack considered as a whole and not only from isolated or particular parts of that attack.117 The Rome Statute’s criminal provision in this context refers to “overall military advantage”.118 As long as the attack has a concrete and direct military objective, the determinative question is whether the commander has used the ‘least deleterious’ (in terms of civilian loss) means of achieving that objective.119 The principle of proportionality creates a permanent obligation for military commanders to consider the results of the attack compared to the anticipated advantages.
115 Swedish Ministry of Defence, International Humanitarian Law in Armed Conflict (IHL Manual), January 1991, para. 40 116 Luis Moreno-Ocampo (Chief Prosecutor at the International Criminal Court) investigated allegations of war crimes during 2003 invasion of Iraq, and published an open letter containing his findings in 2006. 117 See the practice of Australia (ibid., §§ 161 and 167), Belgium (ibid., §§ 162, 168 and 177), Canada (ibid., §§ 162, 169 and 178), France (ibid., §§ 162 and 165), Germany (ibid., §§ 162, 170 and 179), Italy (ibid., §§ 162 and 180), Netherlands (ibid., §§ 162 and 181), New Zealand (ibid., §§ 161 and 171), Nigeria (ibid., § 172), Spain (ibid., §§ 162 and 173), United Kingdom (ibid., §§ 162 and 182) and United States (ibid., §§ 174 and 183). 118 Article 8(2)(b)(iv) of the Rome Statute 119 Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am J Intl L 715, 728 (2008).
36 5.3. The obligation to take feasible precautions
Article 57 -- Precautions in attack
“1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.
37 5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.”120
Article 57 to the Protocol has clarified the principle of precautions, which was first set out in the Hague Convention: “The commander of a naval force shall take all due measures in order that the town may suffer as little harm as possible.”121
Precautions in attacks are meant to be practical means of enabling the application of the principles of distinction and proportionality.122 Parties to a conflict are required to take all feasible precautions in the conduct of hostilities, to avoid, and in any event to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.123
The obligation to take precautions is contained in several documents such as; Amended Protocol II to the Convention on Certain Conventional Weapons124 and Protocol II to the Hague Convention for the Protection of Cultural Property125. Furthermore, the UN General Assembly required that “in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations”. 126 This resolution, in which no state party voted against the provision of precautions, indicates the existence of customary law.
120 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 57 121 Hague Convention (IX) 1907, article 2(3) 122 Sharvit Baruch & Noam Neumann, “warning civilians prior to attack under international law: Theory and practice”, International Law studies Series, US naval war college, vol 87, p.373 123 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 53 124 Amended Protocol II to the Convention on Certain Conventional Weapons, article 13(1) (adopted by consensus) 125 Protocol II to the Hague Convention for the Protection of Cultural Property, article 7 126 UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 abstentions)
38 In the jurisprudence some further indications to customary law are given: In the case concerning La Tablada in Argentina, the Inter-American Commission on Human Rights held that the rule of precautions inherently represents custom since it specifies the basic customary rule of distinction. 127
Article 57 AP I tends to oblige parties to take all ‘feasible’ precautions. The term ‘feasible’ is defined in Protocol II to the CCW; “feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”128 State practice has shown that States as well tend to limit the obligation of precautions in line with this definition.129
Article 57(2)(c) mentions an effective warning and is of specific importance for the purpose of this thesis. The effective warning is an example of a feasible precaution, which should be given prior to the attack. Warning civilians prior to an attack enables them to evacuate the area before the attack takes place or to seek shelter at the time of the attack. This contributes to minimizing civilian casualties and to enhancing their protection. A warning increases the ability to carry out a proportionate attack, since it anticipates on the collateral damage.
The obligation to give a warning is not absolute. As the rule indicates, State practice considers that a warning is not required when circumstances do not permit, such as in cases where the element of surprise is essential to the success of an operation or to the security of the attacking forces or that of friendly forces.130
127 Report No. 55/97 Case 11.137 Juan Carlos Abella v. Argentina, Nov 18, 1997, Para. 177 128 Protocol II to the Convention on Certain Conventional Weapons, article 3(10) 129 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume I: rules (2005), Cambridge University Press, p. 54 130 See, e.g., Hague Regulations, Article 26; Additional Protocol I, Article 57(2)(c) (adopted by 90 votes in favour, none against and 4 abstentions); Brussels Declaration, Article 16; Oxford Manual, Article 33; Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6; Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5; practice of Australia, Benin, Cameroon, Canada, Croatia, Ecuador, France, Germany, Italy, Kenya, Madagascar, Netherlands, New Zealand,
39 Article 57(2)(c) gives no further guidance to what makes a warning “effective”. State practice supports the Commentary’s view that warnings may have a general character. Effectiveness must be viewed in light of its evaluated effect at the time of its issuance, based on available information at the time.131 What is considered to be effective must be a matter of common sense.132
However, four factors in analysing the effectiveness of a warning should be taken into consideration:133 - The temporal aspect. Warnings should be given enough time in advance in order to allow civilians to safely evacuate the area. They should however, not be given too early or civilians might think the threat is over and return.
- The recipient of the warning. This merely depends on the circumstances and is related to the content of the warning. When it is a specific planned attack on a defined location, the warning should be addressed to those who might be directly affected by the attack and when it is a wide-scale operation, it should be given to the residents of large areas.134
South Africa, Spain, Switzerland, Togo, United Kingdom, United States and Yugoslavia and the reported practice of Israel. 13137th Round Table on current issues of International Humanitarian Law, “Conduct of Hostilities: the practice, the Law and the Future”. Sanremo, 4-6 September 2014 Available at:
40 - The content of the warning. The warning must be as clear and specific as the circumstances permit.135 The underlying aim of a warning is to enable civilians to protect themselves. However, the military interests in the strategic context should also be taken into account. In certain cases it might be very difficult to give clear and definite warnings. The uncertainty of a situation might result in a vague warning. One must keep in mind that assessing the clarity of a warning must be done without the benefit of hindsight and in light of the information available to the commanders at the time of the decision to give the warning.136 A warning is furthermore required to be sufficiently specific. With regard to this requirement, the United States has stated that a general warning is sufficient and may consist of a blanket alert delivered by broadcast advising the civilian population to stay away from certain military objectives.137
After one warning has been given there is not always a duty to give further warnings. Queguiner refers to this, in his article on precautions; warning civilians prior to the attack.138 He acknowledges that a duty to warn is usually fulfilled when a general warning is given to the civilian population. There is no obligation to issue any further warnings. This however, “does not exempt the attacking commander from giving further, more precise warnings whenever possible or necessary.”139 Additional warnings may be required when the previous warning had not given the civilians a clear opportunity to protect themselves from the ensuing attack, and an additional warning is necessary in
135 37th Round Table on current issues of International Humanitarian Law, “Conduct of Hostilities: the practice, the Law and the Future”. Sanremo, 4-6 September 2014 Available at:
41 order to give civilians a reasonable understanding of how to protect themselves.140 The content of the warning is thus dependent of the specific circumstances.
- The method by which the warning is issued. There are no clear indications of what constitutes a legal method. Several methods are used for the purpose of giving warnings. Warnings can be given by radio, television broadcasts, telephone calls, internet announcements, leaflets etc.
5.4 Conclusion
The ICRCs study on customary rules of IHL has referred to specific provisions in AP I that clarify the principles of distinction, proportionality and the obligation to take precautionary measures in customary law. In this chapter we have analysed the specific requirements for each principle that will help us in determining whether the conduct of roof knocking could constitute a legal and effective warning.
6. Roof knocking in practice
Before one can answer the question whether the conduct of roof knocking might qualify as a legal and effective warning in light of the international law, it is important to look at the practice. In this chapter an overview of the current practice will be given along with cases that clarify the practice. At the end of the chapter the criticisms on the practice will be set out.
6.1 What is roof knocking, what is its purpose and how is it conducted?
Israel appears to consider itself bound by the obligation to provide effective
140 Pnina Sharvit Baruch & Noam Neumann, “warning civilians prior to attack under international law: Theory and practice”, International Law studies Series, US naval war college, vol. 87, p. 385
42 warnings under customary law.141 That is why the IDF in Gaza Operations started to provide warnings through; radio broadcasts, dropping of leaflets and specific phone calls.
Radio broadcasts include specific instructions and announcements to civilians. The leaflets order people to distance themselves from military targets or they contain even more specific directions as to leave a particular situation and to move to a safe zone by a certain route, within a defined period of time142 The phone calls urge residents of the buildings to leave the remises.
The newest warning method, introduced by the IDF is called the method of ‘roof knocking’. The Israeli government describes the roof knocking-method as “warning shots from light weapons that hit the roofs of the designated targets”.143 The IDF warns inhabitants one last time, by firing a small mortar at the target to indicate the imminent attack and signal those inside to flee before they hit the target with full force.144
In an official Israeli report on Operation Cast Lead145 the IDF refers to a case in which the practice of warning methods with the purpose to minimize the injuries to civilians can be demonstrated. The case concerns the operation to destroy a Hamas’ central compound in the Jabaliya refugee camp, which caused the death of Ri’an and members of his family. During the operation, the IDF issued several warnings before conducting the actual attack. General leaflets and telephone calls alerted civilians to avoid facilities serving Hamas and other terrorists groups. Besides these general warnings, IDF also fired
141 United Nations Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, p.130 142 Pnina Sharvit Baruch & Noam Neumann, “warning civilians prior to attack under international law: Theory and practice”, International Law studies Series, US naval war college, vol 87, p. 370 143 United Nations Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, para. 264 144
43 two rounds of preliminary warnings (the knock on the roofs), 13 minutes and 9 minutes before the strike. After a group of residents left the building, the IDF launched the actual strike. Later it was discovered that Ri’an and his family had chosen to remain in the building after the others had evacuated, leading to their deaths.146
6.2 Criticisms on the conduct of roof knocking
International organizations have elaborated on the practice of roof knocking as a warning method. Amnesty International has condemned the knock on the roof technique in an appeal to the UN to investigate possible violations committed by Hamas and the IDF during Operation Protective Shield.147 The method has also been criticized and deemed insufficient in the report of the U.N. fact-finding Mission, tasked with investigating alleged violations of IHL and human rights in the 2008-2009 war in Gaza (the Goldstone Report).148
“There is no way that firing a missile at a civilian home can constitute an effective ‘warning.’ Amnesty International has documented cases of civilians killed or injured by such missiles in previous Israeli military operations on the Gaza Strip,” according to Philip Luther, Director of the Middle East and North Africa Program at Amnesty International.149
In the Goldstone report, the Mission concludes that the technique is not effective as a warning and constitutes a form of attack against the civilians inhabiting the building.150 The Goldstone Report refers to article 57 (2)(c), which requires that “effective advance warning shall be given of attacks which
146 United Nations Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, para. 390 147
44 may affect the civilian population, unless circumstances do not permit.”151 The Mission states that civilians cannot be expected to know whether a small explosion is a warning of an impending attack or part of the actual attack, the method is therefore not effective. Furthermore, the Mission doubts whether roof knocking should be understood as a warning or as an attack.152 The Mission rejects the idea that an attack, on whatever scale, can be understood as an effective warning in the meaning of article 57 (2)(c) of Additional Protocol I.153
The IDF, on the other hand, claims to take all feasible precautions regarding the avoidance, and in any event to minimizing, incidental loss of civilian life and injury to civilians.154 Roof knocking is such a method, which is supposed to minimize the numbers of deaths. The problem, according to the IDF, is that Israeli aerial offensives inside Gaza are basically guaranteed to kill lots of non-combatants no matter how much Israel attempts to avoid it. Hamas uses Palestinian civilians to stand on the roofs of buildings to dissuade Isreali pilots from attacking, it uses civilians as a human shield from Israeli attacks. Hamas also places rockets inside heavily populated areas. It is inextricable that civilians are to be the victims of these warnings.155
IDF further responded to the illustrated case of Ri’an by claiming that residents ‘evidently understood the early warnings’ and that ‘the IDF reasonably drew the conclusion that the buildings (including Ri’an’s house) were completely empty’.
151 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 57 (2)(c) 152 Goldstone report United Nations Human Rights Council, Report of the United Nations Fact- Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, para. 532 153 Goldstone report United Nations Human Rights Council, Report of the United Nations Fact- Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, para. 535 154 conditions of Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 57(2)(ii) 155 CNN website:
45 6.3 Conclusion
The conduct of roof knocking was introduced by the IDF as an extra warning to civilians in order to minimize the number of deaths. The roof knocking method consists of firing a mortar, directed to the target of the impending attack. The warning shot is issued a few minutes prior to the attack, as can be concluded from the illustrated case of the Ri’an family.
The conduct of roof knocking has been criticized by international organizations, such as Amnesty International and the UN fact-finding Mission tasked with investigating alleged violations of IHL and human rights in the 2008-2009 war in Gaza. According to the criticisms, roof knocking constitutes an attack and one cannot consider it to be a warning under IHL. It is questionable whether the attack meets the requirements of IHL and whether an attack can lawfully constitute ‘an effective advance warning’. The IDF claims to fulfill the obligation to take all feasible precautions in order to minimize the incidental loss of civilian life and injury to civilians, which can be found in article 57(2)(ii) AP I.
7. A legal assessment of the conduct of roof knocking I: Attack
In the following paragraphs, the status of the conduct of roof knocking will be taken into consideration. As this research has shown, the UN fact-finding Mission doubts whether roof knocking should be understood as a warning or as an attack. The Mission continues that an attack, can never be understood as an effective warning in the meaning of article 57 (2)(c) of AP I.
In order to conclude whether these doubts are legitimate, this author will first examine whether the conduct of roof knocking meets the criteria of article 49(1) AP I. Article 49 AP I defines “an attack” as “an act of violence against the
46 adversary, whether in offence or in defence.”156 This definition is considered to be part of customary international law applying to all States involved in armed conflict.157
Introducing the draft article in Committee III of the Geneva Diplomatic Conference, the representative of the ICRC stated that the Committee thought it advisable to attempt a definition of the word ‘attack’ since its use in the draft Protocol was so extensive.158 Not all military operations should fall under the definition of “an attack” as defined in article 49 AP I. A good understanding of the term ‘attack’ is important when considering the principles that have been discussed in the course of this research. For example, with regards to the application of the principle of distinction, as codified in article 52 AP I, the key understanding of it, is its use of the word “attack”. In the following paragraphs this author will primarily examine what constitutes an attack under IHL looking at its plain language. This author will as well consider the question whether the conduct of roof knocking constitutes an attack under IHL.
7.1 The definition of “attack” under IHL
There are three elements to the definition provided in Article 49159: 1) Acts of violence 2) Against the adversary 3) In offense or defense
‘Acts of violence’ should be explained as acts of warfare involving the use of violent means. An act of violence could be pulling a rifle trigger, dropping a
156 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 49(1) 157Paul A. Walker, Rethinking computer network “attack”: Implications for law and U.S. doctrine in: National Security Law brief, vol. 1, No. 1, p. 34 158 Diplomatice Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 'Official records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in armed conflicts’, Geneva (1947-1977) vol. XIV, Summary records of Committee III: Second Meeting, p. 15 159 Paul A. Walker, Rethinking computer network “attack”: Implications for law and U.S. doctrine in: National security Law brief, Vol. 1, No 1, p. 39
47 bomb from an aircraft or initiating the launch sequence for nuclear weapons.160
The conduct of roof knocking constitutes an act of violence since it entails, as we have seen, the dropping of a mortar, which may cause in exceptional circumstances injury to civilians or damage to the targeted building.161 However, one may question whether it meets the element of ‘act against the adversary’ as defined in article 49 AP I.
It is a common understanding that one should look at the purpose of the practice in order to conclude whether the conduct of roof knocking meets the element of ‘acts against the adversary’. Is the ‘knock on the roof’ specifically addressed towards Hamas (the adversary)? Looking at the purpose of minimizing incidental loss of civilian life and thus protecting the civilian population, this question should be answered negatively. One may conclude from this, that the conduct of roof knocking does not meet all the three elements of the definition of an attack under article 49 AP I.
This author however, would like to express her concerns with regard to this conclusion. The definition of ‘an attack’ in article 49 AP I is operatively a key threshold concept in IHL because many of its core prohibitions and restrictions apply only to acts qualifying as such.162 Only the party to the conflict that carries out ‘acts of violence against the adversary’ should act in conformity with the principles for the protection of the civilian population.163 The principles of distinction164 and proportionality specifically use the term “attack” and therefore only apply to cases that qualify as such. It worries this author, that if the conduct of roof knocking would not be considered to
160 Paul A. Walker, Rethinking computer network “attack”: Implications for law and U.S. doctrine in: National security Law brief, Vol. 1, No 1, p. 39 161 Even though the purpose of the ‘knock on the roof’ is to warn civilians and not to cause damage, the nature of such a mortar is to destroy a part of the roof and in exceptional cases it might cause injury to the civilians present on the roof. 162 Michael N. Schmitt, “attack” as a Term of Art in International Law: The cyber operations context’ in: Czosseck C., Ottis R., Ziolkowski K. (eds), 4th International conference on Cyber Conflict, 2012, p. 285 163 E. Kalshoven& L. Zegveld, Constraints on the Waging of War, ICRC, 3rd edition, 2001, p. 97 164 as codified in article 52 AP I
48 constitute an attack under article 49 AP I for the sole reason that the element of ‘act against the adversary’ has not been met, it would be easier for the party that carries out an act of violence, to avoid obligations posed on him by the principles. Since the conduct of roof knocking remains an act of violence and could have serious consequences, this author wishes to regard the conduct of roof knocking as an attack despite the fact that it does not meet the element of ‘acts against the adversary’.
7.2 The conduct of roof-knocking as an “attack”
As the ICRC stated; the term “attack” needs to be interpreted in a broad sense.165 This author therefore rejects the argument that since the practice is not addressed against the adversary, it does not constitute an attack. In such a case, article 49 AP I is interpreted in a rather strict sense. The broad interpretation of an “attack” could cease the problem of the progressive development of the technologies with regards to the conduct of hostilities.166 During the drafting process of article 49 AP I, the conduct of roof knocking was an unforeseeable practice. It could reasonably not have been foreseen that an, in essence act of violence, could be used as a warning method and therefore not directed to the adversary.
Due to the nature of the conduct of roof knocking and the consequences that could occur and have already occurred167, this author deems it necessary to impose the requirements on the practice, as if it were an actual ‘attack’, in order for the practice to be legal. In the following paragraphs this author will consider whether the conduct of roof knocking meets the requirements of distinction and proportionality.
165 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 1880 166 An other example which has not been foreseen by the Commission is the “computer- attack”. Such a practice does not constitute an attack under the exact definition of article 49 AP I. 167
49 7.2.1 The principle of distinction in practice
The principle requires that “Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives”.168 For roof knocking to meet the requirements of distinction “the attack shall be limited strictly to military objectives”.169 As we have seen in practice, the firing of the mortar is primarily directed towards buildings.
The question to whether the conduct of roof knocking meets the criteria of distinction depends on a case-by-case assessment. The same object may be legitimately attacked in one temporal framework but not in the others.170
The general rule is that any building that contains or is to be used by combatants or location that is significant for military purposes, qualifies as a military objective against which an attack is permitted. 171 Notwithstanding its authoritative status, article 52(2)’s definition leaves a lot to be desired. Those who plan or decide upon an attack must “do everything feasible to verify that the objectives to be attacked … are military objectives within the meaning of paragraph 2 of Article 52”. However, Article 52 does not give a workable test for such verification.172 In any case, the advantage gained from the attack must be military and not, say, purely political.
168 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 48 169 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 52(2) first sentence. 170 Y. Dinstein, Legitimate military objectives under the current jus in bello in: Andru E. Wall, (ed.), legal and Ethical Lesson of NATO’s Kosovo Campaign, Vol. 78, US Naval War College’s International Law studies, 2002, p.144 171 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 636 172 Y. Dinstein, Legitimate military objectives under the current jus in bello in: Andru E. Wall, (ed.), legal and Ethical Lesson of NATO’s Kosovo Campaign, Vol. 78, US Naval War College’s International Law studies, 2002, p.141
50 In the Goldstone-Report, the Mission argued that roof knocking “constitutes a form of attack against the civilians inhabiting the building”. 173 What the Mission tends to misunderstand however, is that the presence of non- combatants in a building is a matter of proportionality (collateral damage), not one of directly attacking civilians.174
For the purpose of this research it is important to conclude that a ‘knock’ could be specifically directed to one objective. It is not an uncontrollable mortar and is therefore able to meet the requirements of distinction. The appraising of the military objective in each specific case must however be made against the background of that case. It would be too excessive to make such an assessment within this thesis.
7.2.2 The principle of proportionality in practice
In reality it occurs that civilians are present on the roof while the method of roof knocking is conducted towards that building. According to Philip Luther175 “Amnesty International has documented cases of civilians killed or injured by such missiles in previous Israeli military operations on the Gaza Strip”.176 The IDF, on the other hand, argues that the use of ‘human shields’ makes it inextricable that those civilians are to be victim of these warnings.177
Considering the legality of the conduct, it is therefore important to strike a balance between protection of civilians and the achievement of military advantage.178 The attacking party has to take the principle of proportionality into consideration. This principle is not a mathematical rule. International law does not provide formulas to calculate the appropriate ratio between the
173 Goldstone report United Nations Human Rights Council, Report of the United Nations Fact- Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, para. 37 174 Michael N. Schmidt, “Military necessity and Humanity in International Humanitarian Law”, Virginia Journal of International Law, vol. 50, issue 4, p. 118 175 Director of the Middle East and North Africa Program at Amnesty International 176
51 expected collateral damage and the anticipated military advantage. The question of whether an attack conforms to the principle of proportionality is left solely to the discretion of the commander, who reaches his decision on the basis of the information available to him at the time.179 The commander in charge should thus assess whether the collateral damage anticipated, including the civilians that stay at the premises, is not excessive in relation to the military advantage anticipated.180
Finding a balance between military advantage and collateral damage is difficult. Here again, a meticulous examination of every case is required.181 A general assessment to the proportionality-test will suffice for the purpose of this thesis.
7.2.2.1 Military advantage
First of all it is important to determine the military gains. Article 51(5) AP I mentions the anticipated military advantage. Looking at the aim and purpose of the attack, the anticipated military advantage with regards to roof knocking would be to ‘minimize incidental loss of civilian life’ as a result of the subsequent attack.182 For an affirmative balance of the test, the collateral damage as a result of the ‘knock’ should not be excessive in relation to its purpose.
7.2.2.2 Collateral damage
With regards to collateral damage, it is again the anticipated damage done by the military strike that must be in proportion to the expected military advantage. 183 Thus, one ought not to look at the actual damage. The
179 D. Effroni, ‘Challenges posed by international law in the context of urban warfare, insights form Operation Pillar of Defense’ in: Special issue, Military and strategic Affairs, April 2014, p. 85 180 Israel, Ministry of Foreign affairs, the Operation in Gaza 27 December 2008-18 January 2009: Factual and Legal aspects, 29 July 2009, para. 265 181 Public Committee against Torture in Israel, case in 2006, Israel’s High Court of Justice, para. 46 182 CNN website:
52 anticipated damage with regards to roof knocking is very little. In fact, considering the purpose and aim of the mortar (which has no intention to destroy anything), the anticipated damage is none. However, Amnesty International has documented cases in which civilians got killed or injured by the practice.184During several operations Palestinian civilians stepped out onto the roofs of buildings in order to prevent the attack from happening.185 Nowadays, these actions are referred to as ‘human shielding’. Human shielding could have an effect on the balance of proportionality since it is more difficult to engage in an attack when civilians might get injured. The next paragraph will emphasize the question of whether the status of civilians change once they decide or are forced to act as a human shield. Would the status of ‘human shield’ make it possible to bar the principle of proportionality?
7.2.2.3 The status of ‘human shields’
First of all, a distinction has to be made between voluntary human shields and involuntary human shields. As for the latter, it is prohibited by Article 51(7) AP I for State parties to engage in such operations. This prohibition is not dependent upon whether the use is passive (when a party to the conflict takes advantage of their presence), or active (when the party directs them to the location they will have to shield).186 Involuntary human shielding always falls within the responsibility of the defending Party.
With regard to the status of voluntary human shielding and the obligations of the defending party, two possibilities exist: 1) They fall short of direct participation and therefore article 51(3) does not apply; thus, they benefit from the protections in Article 51(7) AP I.
184
53 2) They fall within the meaning of direct participation since they contribute to military action in a direct causal manner by frustrating harm to military objects. This option would entail that voluntary human shields lose their protection. 187
The first option might render some military objectives as ‘immune’ if the military advantage is negligible.188 By means of the first possibility, human shields would get full protection by IHL at the same level as civilians. There would be no difference in evaluating excessiveness as between voluntary shields and incidentally present civilians.189 Any anticipated harm to them during an attack on a military objective would also factor fully into the requisite proportionality analysis.
The second option would be more effective from a military point of view since the attacking party would be able to attack the lawful targets without being barred by the proportionality test: The voluntary human shields would not have the protection of normal civilians. Therefore, a lawful target would not be immune solely for the reason of the presence of human shields.190
It might be difficult to distinguish the category of involuntary shields from voluntary human shields. Article 58 AP I191 complements article 51(7) AP I, by imposing a responsibility on the party subject to the attack for taking precautions against the effects of the attack. The defending party bears the
187 Michael N.Schmitt, ‘Human shields in international humanitarian law’, Israel yearbook on human rights, vol. 38 (2008), p.40 188 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 51(5)(b). See: Practice related to Rule 14; Proportionality in Attack. 189 Michael N.Schmitt, ‘Human shields in international humanitarian law’, Israel yearbook on human rights, vol. 38 (2008), p.47 190 United States Air Force, Targeting, (Doctrine Document 2.1-9) (June 8, 2008), at 90 191 Article 58 AP I, precautions against the effects of attacks: “The Parties to the conflict shall, to maximum extent feasible: a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives …”
54 main responsibility to protect its civilians. 192 The defending party may certainly not order civilians to shield the military objectives. Even though the defending party bears this responsibility, it however, does not release the attacker from his obligations to conduct operations in a way to avoid or in any case minimize harm to civilians as much as possible.
Hence, with regard to involuntary shields, they factor fully into proportionality assessments.193
7.3 Conclusion
One of the questions the UN fact-finding Mission brought forward was whether the conduct of roof knocking constitutes an attack under international law. Chapter 7 has focused on this specific question.
In order for a practice to constitute an attack, three elements have to be met according to article 49 AP I. Despite the fact that the element of: ‘an act against the adversary’, has not been met with regards to the practice of roof knocking, the author considers it of great importance to nonetheless categorize it as an attack. Due to its nature and its possible consequences, this author finds that the principles of distinction and proportionality need to be taken into consideration.
The purpose of this research is to give a general conclusion to whether the practice could possibly meet the requirements of distinction and proportionality. A case-by-case factual assessment would be too excessive in this regard. In this chapter, the author has concluded that the conduct of roof knocking is able to meet the requirements posed on the attack by the principle of distinction and proportionality.
192 Pnina Sharvit Baruch & Noam Neumann, “warning civilians prior to attack under international law: Theory and practice”, International Law studies Series, US naval war college, vol 87, p. 386 193 Michael N.Schmitt, ‘Human shields in international humanitarian law’, Israel yearbook on human rights, vol. 38 (2008), p.50
55 With regards to the proportionality we have seen that the collateral damage as a result of roof knocking is negligible. This could change however when civilians, acting involuntary as human shields, are involved. Even if this would be the case, the anticipated collateral damage and the actual chance that civilians will get injured is relatively small. The former, balanced with the anticipated military advantage, results in an affirmative answer to the question whether the attack is considered to be proportional in general. Roof knocking as an attack should therefore not be considered inherently illegal.
8. A legal assessment of the conduct of roof knocking II: Advance warning
The UN fact-finding Mission continues by claiming that an attack could never be understood as a warning under international law. Now that we have concluded that roof knocking is not inherently illegal, we can look at the question whether an attack could be understood as a warning. Therefore, this author will take into consideration Article 57 AP I. The article does not specifically mention an attack as an effective warning but it does not exclude it from being an effective warning either.
First of all, this author wishes to shed a light on the requirements of article 57 AP I. This author will continue by demonstrating that the conduct of roof knocking, despite its nature, could constitute an effective advance warning under international law.
8.1 Precautionary measures
According to IHL, those who plan and approve attacks must: 1) Verify military objectives. Do ‘everything feasible to verify’ that the target is a military objective, and not civilians, civilian objects, or other protected persons or places. 2) Avoid or minimize collateral damage. ‘Take all feasible precautions’ in choosing both ‘means and methods of attack’ with a view to avoiding,
56 and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects’; and 3) Refrain from excessive collateral damage.194
According to article 57 AP I, parties to the conflict are required to take al feasible precautions in the conduct of hostilities, to avoid, and in any event to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.195 As we have seen, the term ‘feasible’ refers to those precautions, which are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.196
Article 57 (2)(c) AP I, is an example of a precautionary measure. For an attack that might affect the civilian population, planners and operators must give ‘effective advance warning’ unless the circumstances do not permit.197 There can be no general policy of giving advance warning.198 The requirements of article 57(2)(c) AP I must be considered for each attack separately.
The method of roof knocking has been used to warn civilians a final time, with the purpose of minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects. The conduct of roof knocking can thus be regarded as an advance warning in terms of article 57 (2)(c) AP I.
194 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume 1: rules (2005), Cambridge University Press, p.51-61 195 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume 1: rules (2005), Cambridge University Press, p.53 196 Protocol II to the Convention on Certain Conventional Weapons, article 3(10) 197 See, e.g., Hague Regulations, Article 26; Additional Protocol I, Article 57(2)(c) (adopted by 90 votes in favour, none against and 4 abstentions); Brussels Declaration, Article 16; Oxford Manual, Article 33; Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6; Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5; practice of Australia, Benin, Cameroon, Canada, Croatia, Ecuador, France, Germany, Italy, Kenya, Madagascar, Netherlands, New Zealand, South Africa, Spain, Switzerland, Togo, United Kingdom, United States and Yugoslavia and the reported practice of Israel. 198 Waldemar A. Solf, ‘protection of civilians against the effects of hostilities under customary international law and protocol I’ in: American journal of international law and policy, vol. 80, no. 1, January 1986, p. 132
57 It is questionable whether the practice also meets the requirements of an effective warning since the conduct of roof knocking also constitutes an attack. At the outset it must be emphasized that the effectiveness of a warning must be viewed in light of its evaluated effect at the time of its issuance.199
In chapter 5, this author has mentioned factors that might be relevant for analyzing the effectiveness of a warning. In the following paragraphs the ‘recipient’, the ‘temporal aspect’, the ‘method’ and the ‘content’ of roof knocking will be taken into consideration in order to conclude whether the practice could constitute an ‘effective advance warning’ under IHL.
8.2 Roof knocking as an ‘effective advance warning’
8.2.1 The recipient
The warning has to be addressed to those who can utilize the warning in order to protect civilians from the approaching attack.200 In the historical instruments, this means that the attacking party has the duty to provide a warning to the authorities of the other party.201 However, today it has been acknowledged that a warning may also be specifically directed towards the civilian population. This leaves open the question to whom the warning should be directed. The Commentary to the Harvard Air and Missile Warfare Manual provides a good standard, namely, that the warning must reach the civilians likely to suffer death or injury from the attack.202
With regards to the conduct of roof knocking, the warning is specifically directed towards those who are likely to suffer death or injury from the subsequent attack. It has the specific purpose of triggering those civilians to get out of the building. The conduct of roof knocking is therefore addressed to the correct recipients.
199 Pnina Sharvit Baruch & Noam Neumann, ‘warning civilians prior to attack under international law: Theory and practice’, International Law studies series, US naval war college, vol. 87, p.377 200 Pnina Sharvit Baruch & Noam Neumann, ‘warning civilians prior to attack under international law: Theory and practice’, International Law studies series, US naval war college, vol. 87, p.379 201 See for this: 1874 Brussels Declaration and the 1907 Hague regulations 202 Harvard Air and Missile Warfare Manual, p. 133, para. 8
58 8.2.2 The temporal aspect
A warning should be given enough time in advance in order to allow civilians to safely evacuate the area. The larger the area, the more time is required. Important is that a warning is not given to early. In that case civilians could think the threat is over.203 Timing is a matter of context and should be assessed on a case-by-case basis.
Whether the conduct of roof knocking gives the recipients sufficient time to find shelter depends on the circumstances of the case. What should be taken into consideration is the location of the residents and the time they would need to get out of the building.
8.2.3 The method
Which methods can be used in order for a warning to be effective? The ICRC in its commentary on article 57 AP I, mentions the following warning methods: radio, television broadcasts, telephone calls or Internet announcements. These examples are not exhaustive and due to the technological developments, more methods have been introduced lately. The most effective method will depend upon the circumstances.204
With regards to ‘roof knocking’ as a warning method, the UN fact-finding Mission has argued that ‘civilians cannot be expected to know whether a small explosion is a warning of an impending attack or part of an actual attack’.205 The Mission therefore rejects the idea that a warning shot, with the purpose of minimizing incidental loss, could constitute an adequate method.
In his article ‘IHL and bombing campaigns’206 Byron refers to the Commentary to the Harvard Air and Missile Warfare Manual. The Commentary states that
203 37th Round Table on current issues of International Humanitarian Law, “Conduct of Hostilities: the practice, the Law and the Future”. Sanremo, 4-6 September 2014, p.2 204 Quéguiner,”Precautions under the law governing the conduct of hostilities” (2006) vol. 88, nr. 864, International Review of the Red Cross, p. 808 205 United Nations Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstone report), Twelfth Session, p. 131 206 C. Byron, ‘IHL and bombing campaigns’ in: M.N. Schmitt, I. Arimatsu & T. McCormack (eds.), Yearbook of IHL 2010, Springer Science&Bussiness Media, Aug. 2011, p. 199
59 ‘In some situations the only feasible method of warning may be to fire warning shots using tracer ammunition, thus inducing people to take cover before the attack.’207
The Commentary to the Harvard Air and Missile Warfare Manual considers a warning shot as a feasible method with the purpose of minimizing incidental loss. This can be used as an indicative source when arguing that the conduct of roof knocking constitutes an effective warning-method.
Furthermore, the conduct of roof knocking is a known practice in the Gaza- conflict and has proven to be effective. The Ri’an case208 demonstrates that after the warning shot, people got frightened and left the building.
Since the conduct of roof knocking contributes to the protection of the civilians by providing them an opportunity to protect themselves form impending attacks, the practice should be regarded as an effective warning method. In each situation however, the time between the issuing of the warning and the actual attack will determine whether the method in the specific circumstances is effective.
8.2.4 The content
The question of whether an abstract warning is enough, or whether a particular warning must be given, does not have a clear-cut answer. This will depend on the circumstances of each case.209 According to the ICRC study general warnings may be sufficient enough.210 It is however questionable, whether a general warning will suffice in situations where the actual attack is taking place within a densely populated area. Considering the principles of
207 Commentary to the Harvard Air and Missile Warfare Manual, p. 134 208 Illustrated in paragraph 6.1 209 Jean-Francois Quéguiner, Precautions under the Law Governing the Conduct of Hostilities, 88 International Review of the Red Cross (2006), 808 210 Henckaerts, Jean-Marie & Doswald-Beck, Louise, ICRC Customary International Humanitarian Law, Volume 1: rules (2005), Cambridge University Press, p.65
60 IHL and humanity, a specific warning may be preferable in such circumstances.211
With regards to the conduct of roof knocking, most attacks are being directed towards buildings located in densely populated areas. This might raise the standard requirement from a general warning to a more specific warning. Does the ‘knock on the roof’ meet the standard of a specific warning?
Upon ratification of 1977 AP I, many parties stated that references to the “military advantage” were intended to refer to “the advantage anticipated from the attack considered as a whole and not only from isolated or particular phases of that attack”.212
As a result of an analogical interpretation of these statements, warnings as well could be considered as a whole. Article 57(2)(c) AP I does not demand for warnings to be interpreted separately from each other. The comments by the ICRC on article 57(2)(c) AP I do not refer to such an understanding either.213 Hence, the conduct of roof knocking could be regarded in context with the previous warnings. The content of the radio broadcasts, the leaflets and the telephone calls, is clear and sufficient enough to allow the civilian population to take relevant protective measures. Since these warnings meet the requirements of a specific content, the ‘knock on the roof’ that follows does not separately need to have such a specific content. The content of roof knocking is clear when one puts it into context with the earlier warnings and therefore meets the requirements of a specific warning.
211 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, p. 679 212 Belgium, interpretative declarations made upon ratification of AP I, 20 May 1986, para. 5; Canada, Reservations and statements of understanding made upon ratification of AP I, 20 November 1990, para. 10, declarations of the Netherlands made upon ratification of the 1977 Additional Protocol I, 26 june, 1987, para. 5; Spain, Interpretative declarations made upon ratification of AP I, 21 April 1989, para. 6; UK, Reservations and declarations made upon ratification of AP I, 28 January 1998, para. i 213 see ICRC commentary on article 57(2) in: ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
61 8.5 Conclusion
As demonstrated, one of the primary focuses of IHL is to minimize incidental loss of civilian life. A feasible precaution should be taken with a view of minimizing incidental loss. One possibility to meet the requirements of a feasible precaution is to issue an effective advance warning. The effectiveness of a warning must be viewed in light of its evaluated effect at the time of its issuance. The evaluated effect with regards to the conduct of roof knocking is that residents get triggered to leave the building and to seek for shelter. Since the purpose is to minimize incidental loss of civilian life, the conduct of roof knocking constitutes an advance warning under article 57(2)(c) AP I.
It might seem controversial that ‘an act of violence’ constitutes an effective warning. However, the conduct of roof knocking does meet the factors that indicate whether a warning is effective or not.
Since the method of a warning shot is specifically mentioned as a feasible warning in the Commentary to the Air and Missile Warfare Manual and practice has proven that the ‘knock on the roof’ is an effective method, the conduct of roof knocking constitutes an effective method, despite its ‘violent’ nature.
Furthermore, the content of this warning may be derived from the chain of previous warnings. Therefore, the content of a ‘knock on the roof’ is clear and sufficient enough to minimize incidental loss of civilian life and injury to civilians.
To conclude, this author considers the conduct of roof knocking meets the requirements of an effective advance warning under IHL since it specifically contributes to the minimizing of incidental loss of civilian life.
62 Conclusion
The conduct of roof knocking was introduced during Operation Cast Lead and has proven to be a contested practice. The aim of this research was to analyze whether the practice could possibly constitute a legitimate ‘effective and advance warning’ under IHL.
In order to revise the conduct of roof knocking, it is necessary to get a grip on the legal frameworks that are applicable to the current situation. Since IHL applies when an armed conflict occurs, and the characteristics of an armed conflict have been met in the current situation, IHL is the framework that should be analyzed in depth.
IHL distinguishes two types of conflict: the IAC and the NIAC. Since the codified protection offered by IHL during IAC is much more extensive then in NIAC, it might be important to distinguish between these types in specific situations.
In cases of belligerent occupation, a sub-category of IAC, new obligations may arise. With regards to the situation in Gaza, it is questionable whether the law of belligerent occupation is applicable. In the Bassiouni v. Prime Minister-case, the Supreme Court held the view that the situation of Gaza is not governed by the law on occupied territory but rather by the law of armed conflict.
A specific instrument of the law of armed conflict is AP I. The provisions of AP I have demonstrated to be relevant in answering the main research question. Since Israel did not sign AP I, this author has analyzed them by referring to customary IHL. State practice and case law have demonstrated that the rules of customary IHL on the taking of precautions in attack are more or less the same in both types of armed conflict. It is therefore not a requisite to determine the status of IAC or NIAC in the current situation.
63 The conduct of roof knocking has the purpose of minimizing the numbers of deaths in hostilities. The aim is to trigger residents of the building one final time to seek shelter. The method, by which such a final warning is issued, has been condemned by several International organizations. What the international public however considers as illegitimate is not necessarily unlawful. The purpose of this thesis was to analyze the lawfulness of the conduct.
This author has demonstrated in chapter 7 that the conduct of roof knocking should be regarded as an attack. In article 49 AP I, an attack is defined as ‘an act of violence against the adversary’. The conduct of roof knocking constitutes ‘an act of violence’ which mean acts of warfare involving the use of violent means. Despite its purpose of minimizing incidental loss of civilian life, the nature of the throwing of a mortar constitutes the use of violent means. Despite the fact that the element of: ‘an act against the adversary’, has not been met with regards to the practice of roof knocking, the author considers it of great importance to nonetheless categorize the practice as an attack under article 49 AP I. Due to its nature and its possible consequences, this author finds that the principles of distinction and proportionality needed to be taken into consideration.
When assessing the proportionality principle, a balance had to be struck between collateral damage and military advantage. This required a second thought since the use of ‘involuntary human shields’ is a common practice within the conflict in Gaza. Does the use of ‘involuntary human shields’ bar the proportionality-test? In this research the author came to the conclusion that the actual chance that civilians will get injured is so small that this is negligible for the proportionality-test. Overall, this author got to the conclusion that roof knocking as an attack, could constitute a legal practice.
In chapter 8, this author answered the question whether the conduct of roof knocking could constitute an effective warning under IHL. Four factors were taken into consideration: the recipient, the temporal aspect, the method and
64 the content. This author is of the opinion that the method, content and the recipient of the ‘roof-knocking practice’ do not constitute a breach of international law. This however, has to be assessed by taking into consideration the temporal aspect of the practice.
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