The officer was brought to Cornell Law as part of the Our Soldiers Speak Legal Initiative. Our Soldiers Speak is a U.S.-based not-for-profit organization that specializes in bringing active, specialist, uniformed representatives of the IDF to speak to diverse audiences on U.S. college campuses.
Major Nadav, Head of Security and Law Enforcement Section and Legal Adviser to Judea and Samaria, spoke at length about the complex legal operational challenges in modern-day warfare in the Middle East, and how these challenges are strongly bound by international law.
International law, founded on military necessity, distinction, proportionality, and humanity, aims to achieve strictly military goals while distinguishing combatants or military objects from protected civilians. Further, international law dictates that collateral damage must not be excessive in regard to civilian casualties, and means and methods to complete military operations must be chosen in such a way as to minimize unnecessary suffering and cause minimal harm.
Throughout the presentation, the Major stressed that regardless of the untrue reputation that Israel maintains (among college progressives and SJP activists, for example), the IDF strictly abides by international law, and actually goes above and beyond to protect civilians, often taking far more precautions than required. According to Nadav, giving phone calls to targeted or nearby buildings with specific information and directions regarding where to seek safety is an example of IDF commitment to minimizing collateral damage. In fact, other countries have complained the standard that the IDF sets is too high, Major Nadav said, because “everyone follows what IDF does.”
Noga Benmor-Piltch, Cornell law student and founder of Cornell’s chapter of the Louis D. Brandeis Center, stressed the importance of being informed about the Conflict before formulating judgments. “It’s important to question what one hears in the news about Israel and the IDF,” she said. “To follow everything you hear blindly is both naive and ignorant.”
To highlight how these parameters apply in practice, Major Nadav described a case study involving Operation Protective Edge, a 2014 Israeli military operation launched in the Gaza Strip to counterattack Hamas rocket fire. The case involved the question of whether, under international law, it was legal to target the house of a senior Palestinian Islamic Jihad (PIJ) operative. The house was a regular gathering place for operatives, and was a known weapons cache, and was also located in a highly-populated civilian area.
Under international law, it would be illegal to target the house simply because it was the home of a senior PIJ operative—even though it was a known gathering place for other PIJ operatives—as the reason for their gathering was unknown, and the house itself was not a military object. However, because the house was a weapons cache and thus made an effective contribution to the adversary’s military objective, it was considered military and was legally targetable.
When in doubt, the IDF treats any target as civilian and protects the object or person. Often, as Major Nadav explained, targets were carefully assessed, and only certain rooms were targeted, not entire buildings. Further, even if a target meets all of the guidelines laid out by international law and IDF policy, the IDF stresses the importance of precautions, such as the choice of munitions, time and direction of strike, and advance warnings to allow distancing of civilians and minimize collateral damage. Even when advance warnings are issued, the IDF does not assume civilians have actually evacuated, and is still bound by proportionality. Consequently, it must be determined whether the likely collateral damage is worth the military purpose, even though this produces an operational challenge.
This being said, sometimes certain factors of an operation are out of IDF control. For example, if an attack is planned in haste and requires immediate action, the time of strike cannot always be chosen. If civilians surround a targeted person, advance warnings to those civilians would also warn the target, compromising the operation. Though these precautions are taken, Major Nadav pointed out that media does a disservice to the efforts of the IDF. It is a rarity to hear about cases in which Israel didn’t target civilians, reinforcing negative preconceptions about how the IDF operates.
Despite the rigidity of the IDF in abiding by international law, the Israeli Court receives roughly 10,000 petitions annually. An independent inquiry committee analyzes targeted killings in hindsight, headed by the former Israel Supreme Court justice, strictly applying principles of international law and the even more stringent policies of the IDF.
One audience member asked whether the IDF ever took a “historical approach” to operations such as Operation Protective Edge, in which it was reported that 75% of casualties were civilian.
Major Nadav said that was “twisted data,” and that the analysis of who is innocent is very complex. For example, three people launching a rocket might run 300 meters from the site of their rocket launch to encounter an IDF missile. These individuals would often be considered civilian, “even ignoring websites later calling them Hamas martyrs,” the speaker said.
Similarly, data regarding asymmetry in Israeli vs. Palestinian casualties is skewed by the fact that Israel has far more advanced technology and protective resources in place. For example, Israel’s Iron Dome blocks and destroys Hamas rockets from entering highly populated Israeli locations, saving countless lives. Israel has created advanced, high-tech solutions for its growing security needs.
William Jacobson, Cornell Law professor and head of the conservative blog Legal Insurrection, moderated the event.
“The most important takeaway from this talk was how much effort the Israelis go to to avoid unnecessary civilian casualties,” Professor Jacobson said. “They have an extensive legal team in place to review targeting, but that effort is frustrated by the pervasive use of civilians as human shields both for rocket firing and weapons cache locations. When you compare the anti-Israeli propaganda over civilian casualties to the reality of what Israel faces, it is clear that civilian casualties are desired by Hamas and similar groups.”
“Israel is using rockets to protect civilians,” said Major Nadav in his closing statement, “and Palestinians are using civilians to protect rockets.”
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