32 No. 67 JUSTICE terms of anticipated military advantage in conflicts such as that with Hamas/PIJ in May 2021, it has every incentive to use the most sophisticated precision weapons in its arsenal and take utmost care to limit harm to civilians. Yet harm to civilians probably is inevitable in urban warfare. As former Israel Defense Forces (IDF) lawyers have explained, Hamas/PIJ places fighters and materiel, including missile launchers, in population centers. They also use protected places, such as hospitals or mosques or other religious, cultural, or educational sites that, as a matter of the international laws of war, normally are off limits to intentional military attack. Hamas/PIJ chooses those sites to benefit from their respective protected status or, if Israel uses force to try to bring military activities located in such places to an end, to ensure that substantial civilian casualties and damage to protected sites are caused with Israel being blamed and criticized as a result.4 Sometimes, Hamas/PIJ may have co-located civilian and military activities, possibly unbeknownst to each other.5 Commentators focus on casualties. Exact casualty figures for the May 2021 conflict are difficult to ascertain. The Jerusalem Center for Public Affairs published an analysis in July 2021 concluding that more than 250 Palestinians and 13 Israelis had been killed.6 Larger numbers have been reported based on Palestinian sources.7 These numbers have provoked claims that Israel used excessive force relative to the anticipated military advantage from attacking a particular target. Reaching a reasonable conclusion requires a judgment about the military importance of the target as against cost – cost in military and civilian casualties, and cost in terms of expenditure of effort and likely result. If Israel did not have an effective missile defense system that intercepted most of the rockets launched from Gaza or the ability to use precision weapons, the number of combatant and non-combatant and civilian casualties on both sides of the conflict would have been much higher. That fact would not necessarily mean that Israeli military operations would have been disproportionate in such circumstances or that Hamas/PIJ did not violate the laws of war.8 Since the Israel-Egypt Peace Treaty of 1979, most, but not all, armed clashes involving Israel have pitted the IDF against Palestinian armed groups. The Palestinian groups have attacked, not only Israeli soldiers and military installations, but also non-combatant civilians. Civilian targets attacked by Palestinian armed groups in the past included cafes, shopping malls, and buses.9 IDF clashes with Palestinian groups have occurred periodically. International reaction and commentary repeatedly have raised the legal character of such conflicts and the lawfulness of Israeli military actions. Critics frequently accuse Israel of using excessive force measured against anticipated advantage. In recent years, in each of the conflicts occurring in Gaza, Human Rights Watch, for example, has accused 4. International Association of Jewish Lawyers and Jurists, “Operation Guardian of the Walls,”Statements by former heads of the IDF International Law Department,YOUTUBE (May 27, 2021), available at https://www.youtube.com/ watch?v=9hS1FeKTMbk 5. See e.g. Alan Baker [former Legal Adviser to the Israeli Foreign Ministry and Israel’s Ambassador to Canada], “The Legal War: Hamas’War Crimes and Israel’s Right to Self-Defense,” JERUSALEM CENTER FOR PUBLIC AFFAIRS (June 3, 2021), available at https://jcpa.org/article/thelegal-war-hamas-war-crimes-and-israels-right-to-selfdefense/. But see Yaniv Kubovich, “Israel Revised Intel File It Gave U.S. on Bombing Gaza High-Rise that Housed AP, Al Jazeera,”HAARETZ, Nov. 19, 2021, available at https:// www.haaretz.com/israel-news/israel-revised-intel-bidenanswers-gaza-bombing-ap-al-jazeera-1.10395688 6. Eli Nirenberg & Lenny Ben-David, “Casualties in the 2021 Gaza War: How Many and Who Were They?” JERUSALEM CENTER FOR PUBLIC AFFAIRS (July 26, 2021), available at https://jcpa.org/article/casualties-in-the2021-gaza-war-how-many-and-who-were-they/ 7. See e.g. Weiyi Cai, Josh Holder, Lauren Leatherby, Eleanor Lutz, Scott Reinhard and KarenYourish,“TheToll of Eight Days of Conflict in Gaza and Israel,”N.Y. TIMES, May 17, 2021, available at https://www.nytimes.com/ interactive/2021/05/17/world/middleeast/israel-palestinegaza-conflict-death-toll.html 8. Yoram Dinstein, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 131 (Cambridge: Cambridge University Press, 2nd ed. 2010). 9. Such attacks are correctly labelled terrorist attacks in that their purpose is to sow terror and change policy as a result. The ICJ 2004 Advisory Opinion on the legal consequences of the Israeli wall does not itself use the term“terrorist”unless quoting another source that does. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, July 9, 2004, [2004] I.C.J. 136, available at https://www. icj-cij.org/public/files/case-related/131/131-20040709ADV-01-00-EN.pdf. In 2002, a permanent representative of an elected member of the UN Security Council characterized such attacks in informal Security Council consultations as resistance to occupation, not terrorism.
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