34 No. 67 JUSTICE mobile medical units of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.21 If there is firing from the hospital, no due warning might be practicable to achieve the military objective of putting an end to such firing. It may be impossible to destroy the battery without damage to the hospital. Civilians and other non-combatants still may be present and therefore at risk. This caveat stands side by side with the law today requiring that a commander not authorize an operation that likely would cause damage to civilian property or harm to civilians (or noncombatants),“which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”22 The laws of war require “effective advance warning” of attacks that may affect the civilian population unless circumstances do not permit.23 The IDF typically warns the civilian population of an impending attack on a building by making telephone calls to residents, dropping leaflets, firing warning shots, or “knocking”on the roof by dropping dud weapons to make a warning noise. The Human Rights Commission report on the 2008-09 fighting between Hamas and Israel in Gaza nevertheless concluded that such warnings were not sufficiently specific to constitute“effective advance warning.”24 Insurgents or other armed groups or guerrillas often use tactics such as locating their forces in places like hospitals when confronting regular armies as they try to take advantage of whatever might tip the scales of battle, including the expectation that a regular army will obey the laws of war in situations of asymmetric or hybrid warfare.25 In Falluja, Iraq, in 2004, for example, “insurgents” used 60% of the city’s mosques as bases or weapons caches.26 From Israel’s perspective, preparing to deal with such tactics in a manner consistent with the laws of war is essential. International law does not require that fighters suffer the same or nearly the same numbers of casualties on each side of the conflict. Nor does it prohibit casualties of civilian enemies if the military objective is important. But the law does require that the use of force meet requirements of “necessity”and“proportionality.”In fact, these requirements are at the core of all law governing violence, whether domestic or international.“Necessity” means that alternatives must be exhausted or deemed to be unavailable to a reasonable person considering the totality of the circumstances. 19. See e.g. the discussion of the position taken by the International Military Tribunal at Nuremberg and in subsequent war crimes trials after World War II in Lassa F. L. Oppenheim, INTERNATIONAL LAW: A TREATISE, vol. II: DISPUTES, WAR AND NEUTRALITY 200 (7th ed. Edited by H. Lauterpacht, London: Longmans, Green & Co., 1952) and accompanying notes; Myres S. McDougal and Florentino P. Feliciano, LAW AND MINIMUM WORLD PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 530-34 (New Haven: Yale University Press, 1961). The law governing the decision to use force – the jus ad bellum – determines the answer to the question about lawful or unlawful war, as contrasted with lawful or unlawful conduct in military operations determined according to the jus in bello. 20. See Dinstein, supra note 8. 21. 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 21; Roberts and Guelff, supra note 17, at 179; 1977 Protocol I continues this rule. Id. at 397. See Dinstein, supra note 8, at 191-92. 22. Protocol I, supra note 3, at art. 51. 23. Id. at art. 57, para. 2; Reisman and Antoniou, supra note 15, at 92. Neither the United States nor Israel is a party to 1977 Protocols I (international armed conflict) and II (non-international armed conflict). In 1991, the United States destroyed the Iraqi command and control center in an office tower with the use of a precision guided munition. No advance warning was given beyond the ultimatum set forth in UN Security Council Res. 678 (1990) establishing January 15, 1991, as the day by which Iraq had to comply with prior UN Security Council Resolutions demanding the withdrawal of Iraqi forces from Kuwait. See UNSC Res. 678 (1990), 29 Nov. 1990, S/RES/678 (1990), available at https://undocs.org/S/RES/678(1990) 24. Supra note 12, at para. 527. I have written elsewhere that the standard, not followed by the Human Rights Council, must consider the totality of the circumstances in deciding whether a warning is or is not effective. Nicholas Rostow, “The Human Rights Council (Goldstone) Report and International Law,” 40 ISR.Y.B. ON HUM. RTS. 274 (2010). See also Yoram Dinstein,THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 127-28 (Cambridge: Cambridge University Press, [1st ed.] 2004). 25. See Eyal Benvenisti, “The Law of Asymmetric Warfare,” in LOOKINGTOTHE FUTURE: ESSAYS ON INTERNATIONAL LAW IN HONOR OF W. MICHAEL REISMAN 931-50 (Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane and SiegfriedWiessner, eds., Leiden: Martinus Nijhoff, 2011).
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