Probe Gaza Rules of Engagement, Israel - or Face the ICC

After Breaking the Silence’s damning report into Israeli soldiers’ actions during the Gaza war, Israel must launch a genuine probe.

Reuters

“The rules of engagement are pretty identical: Anything inside [the Gaza Strip] is a threat, the area has to be ‘sterilized,’ empty of people – and if we don’t see someone waving a white flag, screaming ‘I give up’ or something, then he’s a threat and there’s authorization to open fire.”

The above testimony was given to the Breaking the Silence organization by an armored corps soldier who participated in last summer’s fighting in Dir al-Balah in the Gaza Strip. When asked whether opening fire required the suspect to be holding a weapon or binoculars, he replied, “I think he just needs to be there.” Asked what was meant by “open fire,” he responded, “Shooting to kill.”

“There’s no such thing there as a person who is uninvolved,” he added.

Another witness – an engineering corps soldier who operated in Gaza City – said, “The instructions are to shoot right away. Whoever you spot – be they armed or unarmed, no matter what ... shoot to kill. It’s an explicit instruction.” According to this soldier, an officer told the troops that he realized “a situation might arise in which innocent people get killed, but ... you must shoot without hesitation.”

A first sergeant in the armored corps said, “You could shoot anywhere, nearly freely ... worst case, they’ll ask what we shot at; we’ll say it was a ‘suspicious spot.’”

These troubling testimonies not only seemingly explain the large number of civilians killed in Gaza during last summer’s Operation Protective Edge, but also attest to grave breaches, prima facie, of the fundamental principle of the laws of war: the Principle of Distinction. Under this principle, there’s an obligation to distinguish between civilians and combatants, and it’s permissible to attack only fighters and military targets.

There’s no doubt this principle was violated by Hamas when it fired rockets and mortars at Israeli towns and cities. But the orders soldiers describe in their testimony indicate, prima facie, that there were also grave breaches of this principle by the Israel Defense Forces – breaches that could amount to war crimes.

It isn’t just intentionally attacking civilians that’s forbidden. Even attacks on military targets are forbidden if it’s clear they will also harm civilians or civilian objects indiscriminately. It goes without saying that an order to shoot at people indiscriminately is manifestly illegal under Israeli law as well.

Moreover, even a strike on a strictly military target that ends up hitting civilians as well is liable to be illegal if proper precautions weren’t taken, or if the expected harm to civilians is disproportionate.

Some of the testimony gathered in Sunday’s report – in which Breaking the Silence interviewed 60 IDF soldiers and officers who served in Gaza – paints a picture of prima facie violations of these rules. For instance, an infantry officer related that his soldiers fired artillery at certain targets, despite anticipating that a large number of civilians would be hit.

Another witness described how the threshold of permissible incidental damage was raised when the target bank became depleted, and also only harm to people was deemed necessary to be taken into consideration when determining proportionality, and not harm to civilian property. These constitute breaches of the laws of war.

Until now, the number of civilians killed in Gaza and pictures of the destruction left behind by the IDF have cried out to heaven. But now, the chilling testimony that appears in Breaking the Silence’s report completes the picture of the soldiers’ behavior and the orders that, according to this testimony, they were given.

Only a serious, independent investigation examining how the rules of engagement were set and the orders these soldiers describe is likely to be considered a genuine investigation. And if that doesn’t happen, the orders described in the report are liable to be the subject of careful scrutiny by Fatou Bensouda, the prosecutor of the International Criminal Court in The Hague.