Analysis

1. No ROE – Shoot 1st.2. Use of Human Shields to enter

buildings3. Property vandalized4. Firing at Water Tanks5. Use of White Phosphorous

recklessly6. Ill-disciplined attitude towards

civilians

Analysis

1. Shooting of old man with flashlight?

2. Forcing civilians to enter houses w/ gun on their soldiers

3. Sending civilians into a house to tell others to evacuate

4. Calling via Phone to tell people to leave

The Police Force• What are the operative facts?• Does tweaking them at all matter?

Israel Response• Whereas members of a civilian police force

that is solely a civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict, international law recognises that this principle does not apply where police are part of the armed forces of a party. In those circumstances, they may constitute a legitimate military target. In other words, the status of the Palestinian ―police under the Law of Armed Conflict depends on whether they fulfilled combat functions in the course of the armed conflict. The evidence thus far is compelling that they are.

Goldstone Report (Sep 09)

• 1720. The Mission also concludes that Israel, by deliberately attacking police stations and killing large numbers of policemen (99 in the incidents investigated by the Mission) during the first minutes of the military operations, failed to respect the principle of proportionality between the military advantage anticipated by killing some policemen who might have been members of Palestinian armed groups and the loss of civilian life (the majority of policemen and members of the public present in the police stations or nearby during the attack). Therefore, these were disproportionate attacks in violation of customary international law. The Mission finds a violation of the right to life (Article 6 ICCPR) of the policemen killed in these attacks who were not members of Palestinian armed groups.

Operation Cast Lead

• Military objective determination• Proportionality determinations• Role of the International Law Division

– Reputation– Context

• International Law – Development through violations?

Issues

“This story attests to the considerable flexibility that the laws of war allow, particularly the tests of proportionality--the damage inflicted on military targets and collateral damage to civilians. Reisner cautions against cases in which the judgment of the legal expert might replace the moral judgment of the commander, who in the last analysis bears responsibility for his actions.”

Operation Cast Lead

Proportionality

• DOD Report– By placing a heavy burden on attackers, the modern LOW creates

a perverse incentive for defenders to violate distinction and wage “lawfare”

• Jus in Bello Proportionality Today– Different than human rights and jus ad bellum proportionality– Three perspectives: 1) Target, 2) Means/Method, 3) Conduct

(timing, warning etc.) – Requires commander to balance “force protection” concerns with

collateral damage concerns – Standard: would a reasonable commander in the commander’s

circumstances view the incidental effects as excessive compared to the concrete and direct military advantage (requires “complete good faith”)

– Different application in COIN?

Concluding Observations

“A slightly ambiguous protective provision is preferable to none at all” ~ Solis

LAWFARE?

• What do you think?