A Legal and Operational Assessment of Israel’s Targeting Practices

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...Israel has long resisted publicly revealing its targeting methods and even some of its specific positions on the law of armed conflict (LOAC), fearing that doing so would provide an operational advantage to its adversaries and be exploited by often-critical interlocutors among states and in the international human rights community. This may be changing. Shortly after the conclusion of open hostilities, the IDF invited us to Israel to examine its targeting practices and application of the LOAC. We visited an operational IDF headquarters (the Gaza Division) and observed its targeting cells; reviewed the targeting procedures of both ground and air forces; studied the organization, training, and methodology of the Military Advocate General’s Corps; visited a Hamas attack tunnel; examined combat footage, including the publicly released footage here; and interviewed IDF officers — both legal advisers and operators — at various levels of command.

Our goal was not to assess the just-concluded campaign (Operation Protective Edge), but rather to delve into how the IDF conducts targeting in general from the perspective of individuals who have real-world targeting experience and LOAC expertise. The results of the research will be published in two related pieces, one for a military-policy audience, the other in an academic law journal.

Israeli targeting practices and positions on the LOAC are broadly within the mainstream of contemporary state practice, but the nuances of the Israeli approach to targeting and the LOAC can only be understood in the context of the specific operational and strategic environment in which the IDF must fight. Several key factors inform IDF decision-making in this regard. The first is the extraordinary degree to which the Israeli population views itself as “under siege” — Israel is surrounded by foes, and both of its chief antagonists (Hamas in Gaza and Hezbollah in Lebanon) possess vast quantities of cheap, widely available, and highly inaccurate rockets that they regularly launch at Israeli population centers. These rockets are capable of ranging virtually the entire country. Consequently, the IDF has invested heavily in both defensive measures such as the Iron Dome system, and in efforts to identify, interdict, and destroy their adversaries’ rocket arsenals. Put in terms of the LOAC, the destruction of rockets and rocket-launching infrastructure (often in the form of civilian houses converted to military use in order to deter Israeli attack) has a high degree of “anticipated military advantage,” such that it may justify (from the IDF’s standpoint) levels of collateral damage that may strike outside observers as potentially excessive.

The second factor that figures prominently in the IDF approach to targeting is the acute casualty aversion in Israeli society writ large, coupled with a pervasive fear of IDF soldiers being taken prisoner and used to exert strategic leverage over Israel. This reality is thrown into stark relief when one considers the consternation that greeted the US decision to exchange five Taliban fighters for the release of Sgt. Bowe Bergdahl. By comparison, Israel routinely releases hundreds and sometimes thousands of captured fighters for the return of captive IDF soldiers (or their remains) — and unlike the Taliban fighters involved in the US exchange, it is certain that many of those released by Israel will soon return to the fight. The difference in perspective can be explained in part by the fact that, unlike the all-volunteer professional military the United States fields, the IDF is a conscript force; nearly every Israeli family has loved ones who have confronted, are confronting, or will confront the risk of capture or death in combat....

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http://justsecurity.org/22392/legal-operational-assessment-israels-targeting-practices/#more-22392

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Because Hamas well understands this particular characteristic of its Israeli foe, it employs an extensive network of infiltration tunnels and masks its fighters among the civilian population close to Israeli communities in an effort to surprise and overwhelm isolated IDF positions. Therefore the IDF places a high priority on the destruction of tunnels and the infrastructure that supports them, and is willing to operate aggressively both by ground and by air to root out Hamas fighters from the civilian population among which they hide. Strikes on tunnel entrances, on cement plants that Israel claims are used to construct the tunnels, and on Hamas concentrations in civilian settings sometimes lead outside observers to question the degree to which Israel honors the principle of distinction, the rule of proportionality, and the requirement to take precautions in attack.

We use this operational and strategic context to explore how the IDF is organized to fight, how targeting operations are conducted and controlled, and how the MAG is positioned to provide legal advice and oversight of military operations. The unique and robust role of Israeli courts with regard to on-going military operations is examined and IDF positions on targeting law are catalogued and assessed. The latter includes, inter alia, analysis of the Israeli stances on: Additional Protocol I as customary international law; application of the definition of military objectives; direct participation, voluntary and involuntary human shields, and the concept of organized armed groups; placement of fighters and military objectives among civilian persons and objects; the effect of uncertainty and doubt in targeting; contextual application of the rule of proportionality; and precautions in attacks, especially warnings and the controversial “knock-on-the-roof” technique.

Broadly speaking, we concluded that IDF positions on targeting law largely track those of the United States military. Moreover, even when they differ, the Israeli approach remains within the ambit of generally acceptable State practice. The IDF is served by a corps of highly competent and well-trained legal advisors who operate with a remarkable degree of autonomy, and its operations are subject to extensive judicial monitoring. While there are certainly Israeli legal positions that may be contentious, we found that their approach to targeting is consistent with the law and, in many cases, worthy of emulation.