How Israel’s military rewrote rules of war to put Palestinian civilians in the line of fire

For much of this year, at least until the current efforts to reconcile Fatah and Hamas offered some tentative hope of easing its isolation, Gaza has lived with the threat that war with Israel could again break out. An undeclared but effectively policed ceasefire — punctuated only by Israeli attacks on Hamas targets whenever a rocket from a rogue faction lands in Israel — has lasted for three years. Ending that uneasy truce is not in the interests of either Israel or Hamas. But experience does not suggest that this alone would be enough to prevent a repeat of the three wars which have devastated the Strip in the past decade.

It is now clear in retrospect that it was the 2008-09 Operation Cast Lead, the first of the three Israeli military assaults, which set the pattern for a new kind of warfare in Gaza. While 13 Israelis — including three civilians – lost their lives (along with at least two dozen Palestinian alleged collaborators summarily executed by Hamas), 1,391 Palestinians were killed by Israeli forces during the three week operation, 759 of whom, according to the Israeli human rights organisation, B’Tselem, were “not taking part in hostilities”. Although the death toll in the 2014 war, which I covered, would be much higher still, these casualties — and the destruction of homes, factories and infrastructure — were at the time unprecedented since the 1967 Six Day War. But it was not just the scale which made Cast Lead a turning point. There was also a clear shift by the Israel Defense Forces in the unwritten rules of engagement governing its conduct.

Famously, the April 2009 report of the UN Fact Finding Commission chaired by the South African judge Richard Goldstone infuriated Israel’s government by declaring that Cast Lead was “a deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population”. In 2011, however, Judge Goldstone recanted the finding, saying in a Washington Post article that he no longer thought that civilians had been “targeted as a matter of policy”. Judge Goldstone now sharply contrasted Israeli conduct with that of Hamas which he said — correctly — had “purposefully and indiscriminately” fired rockets at civilian targets — itself a war crime.

But how clear is the moral dividing line between “deliberately” targeting civilians and a use of massive force, including artillery and air power, which is bound to cause so-called collateral casualties on a large scale? One strongly held view among international lawyers is that there is no real difference between an intentional attack on civilians and a “reckless disregard” of the distinction between civilian and military targets. This matters because of a decisive step change in Cast Lead. Within six months of its end, the Israeli anti-occupation veterans’ group Breaking the Silence (which is once again under concerted attack from Benjamin Netanyahu’s government) collected about 30 meticulously cross-checked testimonies from Israeli combatants. Many told how soldiers were made aware of a new determination to prioritise their own lives over those of Palestinian civilians. One quoted a commander as approvingly describing an “insane’ use of firepower while another said his commander had pledged: “Not a hair will fall of a soldier of mine. I am not willing to allow a soldier of mine to risk himself by hesitating. If you are not sure, shoot.”

The traditional IDF doctrine - embodied in the “purity of arms” section of its ethics code, entitled The Spirit of the IDF and given to every new recruit – says that “IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property”. The Israeli philosopher Moshe Halbertal, who helped to draw up the latest version of the code in 2000, explained that efforts to prevent civilian harm “surely must include the expectation that soldiers assume some risk to their own lives in order to avoid causing the deaths of civilians”.

But in an article in the 2005 Journal of Military Ethics Asa Kasher, a professor of philosophy at Hebrew University, and Amos Yadlin, Commander of the IDF Defense College and the former head of Military Intelligence, argued that while such a doctrine applied to conventional wars – those between armies – it should not apply to the new warfare against “terrorism”. In simple terms, the code had implicitly embodied a kind of hierarchy of protection of human life in war. In order of priority, this had run: 1. “Our” civilians; 2. “Their” (or “enemy”) civilians; 3. Our soldiers; 4. Their soldiers. Kasher and Yadlin now explicitly created a new hierarchy for the “new warfare”: 1. Our civilians; 2. Those “not involved in terror” who are not “ours” but are under “effective control” of our state; 3. Our soldiers; 4. Those “not involved in terror” when “they are not under the effective control of [our] state”. This hierarchy would apply to Gaza. In effect the Kasher-Yadlin doctrine offered a green light for the lives of non-combatants in Gaza to be set at a lower priority than those of Israeli soldiers simply because they were not “under the effective control” of Israel.

It was not clear morally why non-combatants in Gaza should be treated differently from other “enemy” civilians simply because the militias there – over which the civilians had no influence – are classified as ‘terrorist’; and indeed the doctrine was swiftly challenged as “wrong and dangerous” head on by other academics, including the eminent Israeli philosopher Avishai Margalit, who argued that even Hamas’s use of populated areas to operate from did not absolve the IDF from the duty to try and protect Palestinian civilian life. Officially the Kasher-Yadlin article did not supersede the IDF’s code of ethics. But in February 2009 Kasher told Haaretz its ideas had been “adopted” by Moshe Yaalon, who was IDF chief of staff when the article was first drafted, and his successors. What Israel had pioneered was a new principle, which reduced the obligations of its army – and perhaps in time those of other countries – to protect civilians in certain military operations. Cast Lead saw the first conscious application of this principle, but by no means the last — the 2014 Operation Protective Edge being a case in point.

In the run-up to both 2008 and 2014, there was a direct relationship between the decade-long blockade and the outbreak of war. Hamas’s unpopularity within Gaza because of economic conditions, its failure to persuade Israel to lift the blockade, and its political isolation, undoubtedly contributed to Hamas’s willingness to resort to military conflict. The economic conditions are now much worse than they were in 2014, not least because of the sanctions that Palestinian President Mahmoud Abbas has applied to increase the pressure on Hamas. There has been no shortage of warnings to the Israeli government this year from senior IDF officers that the humanitarian crisis could “blow up” into fresh conflict. Finally, if the Hamas-Fatah negotiations founder, as nearly every Palestinian hopes they won’t, Hamas’s political isolation will be the more acute. The obligation, not least for the international community, to seek a positive outcome to the reconciliation process and to encourage moves to ease the blockade is correspondingly greater. A failure would not necessarily mean another war. But every effort should be made to ensure it doesn’t happen, not least because of the fear that it could be the bloodiest yet.