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Breaking the Silence is an Israeli NGO "of veteran soldiers who have served in the Israeli military". They say in this X thread that the killing by mistake of three Israeli hostages on the 15th of December was caused by the lax rules of engagement followed by the IDF:

The "deviation from the rules" claim is weak at best. The IDF’s own internal investigation found that the force in question was instructed to shoot at any "fighting age male". No soldier who fought in Gaza in past campaigns would be surprised to learn this.

These instructions are in line with what we know from testimonies of soldiers who took part in previous ground invasions in Gaza. "If it’s a man 15 years or older, like anyone who looks like he could be a combatant, shoot him" one soldier who fought in Gaza in 2014 told us.

Clearly, considering as an enemy fighter anyone who might be one is a way for an army to pretend abiding by the rules of war while actually killing civilians without any precaution. For example it's easy to justify a bombing, as long as some "fighting age males" died, it's assumed that there was a legitimate target. Conflating fighters and civilians also allows for convenient war propaganda: if any male casualty is counted as an enemy fighter, the army can easily inflate their success.

Is this kind of purposeful broadening of the definition of enemy fighters taken into account in the rules of armed conflicts?

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    I'm not quite sure what you're trying to ask here. Civilians will die in wars, regardless of "rules". This is why wars should be avoided in the first place. Obviously, whoever kills civilians will find a way to justify that. It's not like anyone can do anything about it.
    – Ccm
    Jan 7 at 23:44
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    What makes you believe any such clear and objective distinction between 'civilian' and 'fighter' exists?
    – user48321
    Jan 8 at 1:04
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    @Servaes afaik that's exactly what rules of armed conflict are for: there might not always be a clear way to distinguish fighters and civilians, but there should be some reasonable guidelines. It's clear that pretending that everybody is a fighter is abusive.
    – Erwan
    Jan 8 at 10:27
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    @Ccm since the Geneva Convention and especially after WW2 the international community has created laws to protect civilians during conflicts. War crimes are punishable, whether the war criminal pretends to justify them or not (e.g. former Yugoslavia).
    – Erwan
    Jan 8 at 10:43
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    Comments deleted. This is not a place to start yet another debate about who is the most evil in the current conflict.
    – Philipp
    Jan 9 at 12:35

4 Answers 4

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Yes, the idea that there is a distinction between combatants and civilians is, one of the foundational principles of International Humanitarian Law. Indeed, for almost a century this concept was apparently considered so self-evident that it needed no explicit formulation. However, such a formulation did eventually come in 1977 with Article 48 of Protocol I of the Geneva Conventions, which states that,

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

I think this answers your central question; you can read the Geneva Conventions and their Protocols yourself (or ask on Law.se), if you want to further explore their minutiae. That being said, I think there are some further points which it may be instructive to note, with respect to the conflict that you are particularly interested in:

  • Protocol I, Article 50, Item 3,

The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

  • Protocol I, Article 51, Item 3,

Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

  • Protocol I, Article 51, Item 5,

Among others, the following types of attacks are to be considered as indiscriminate:

(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

  • Protocol I, Article 51, Items 7 and 8,
  1. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

  2. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57 .

  • The provisions of this Protocol do not mean that any civilian casualty caused by military action is necessary a violation. Rather, military decision makers must abide by the precautions set out in Article 57, in order to avoid, or at worst minimise, civilian casualties.

  • Israel is one the the few states that is not a party to Protocol I. The USA is also not a party, but is a signatory. However, Palestine is (since 2014) a state party.

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  • Your quote for item 4 ends with "and", leaving out a restriction on what is "indiscriminate"
    – Caleth
    Jan 10 at 10:28
  • @Caleth I omitted part (b) of that item for brevity, but I'll add it so that it doesn't appear anything important has been left out. Jan 10 at 16:35
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(Yes, there are laws/customary rules of warfare telling countries to distinguish between combatants and non-combatants. That's so trivially known that it hardly justifies a question. What's less easy is to say whether they have been broken, or not, in Gaza).

It's hard to pass judgment without a thorough investigation.

Israel claims that it is frequently facing tactics that deliberately try to make combatants look like civilians:

Hamas gunmen have lured Israeli soldiers into ambushes by wearing Israeli military uniforms, or playing recordings of a baby crying, said Asher Halperin, a lawyer who has defended soldiers accused of violating the military’s rules of engagement.

If it is true, that would result in extreme paranoia and a tendency to shoot first, ask questions later. It is easy for any one of us, from the safety of our keyboards, to engage in judgment. But it may not be a luxury afforded to the troops on the ground.

Whether that is true or not is hard to say without an investigation. Which is why an impartial ICJ investigation would not be a bad thing:

  • I wouldn't trust Israel all that much finding its military guilty of abuses and trigger happiness. IDF soldiers do sometimes get punished, but it seems more the exception than the rule.

  • Hamas has demonstrated a capacity to do much worse and similar tactics have been carried out in the region, by Middle Eastern terror groups. You can also add the recurring use of concealed suicide vests to the equation (something also to take into account when criticizing the practice of stripping prisoners). Without expressing support for them, I'll note that it makes sense for Hamas to use this type of tactic: the more Gazans die the more Israel looks bad.

War crimes investigations would definitely take into account whether the zone of combat had an absence of "deceptive-civilian tactics" or not. Then they would have to figure out if the rules of engagement, as enforced, were proportional to the risks or not.

I could be wrong, but that might very well be a first for an ICJ-style court. National courts in the US, the UK and Australia have had to sort this out during Afghanistan/Iraq missions, but more at the level of claims of individuals breaking the rules than at the level of the rules themselves being under scrutiny.

As to the laws that relate to this, per question, this seems to be fall under Customary International Humanitarian Law *.

Customary IHL - Rule 1. The Principle of Distinction between Civilians and Combatants

Rule 1.

The Principle of Distinction between Civilians and Combatants

Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians

* been meaning to ask about IHL's relation to Geneva Conventions, or other treaties, for a while, if that hasn't been done yet.

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    That may be true for Hamas fighters in Gaza, but it's way more spread than that. In november, an Israeli man named Yuval Doron Kestelman stopped a terrorist attack in Jerusalem by shooting down the two terrorists. When the IDF arrived he throw away his gun, took off his shirt (to prove he wasn't bearing an explosive vest), raised his hands and surrendered in Hebrew to the soldiers. They killed him nevertheless (theguardian.com/world/2024/jan/03/…). IDF are trained to kill everyone who looks Palestinian
    – Rekesoft
    Jan 8 at 7:47
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    @Rekesoft: Sorry, but your comment doesn't make sense. You can't possibly be claiming that terrorists outside Gaza do properly distinguish themselves as combatants as opposed to civilians? And your last sentence really undermines your credibility, in that (1) it's not supported by your source and (2) it's patently unrealistic. (What would it mean to "look Palestinian", and how would Kestelman fit that bill better than most other Israelis?) Surely we can criticize these actions without lying about them?
    – ruakh
    Jan 8 at 10:00
  • @ruakh Are you claiming that terrorists in Jerusalem have the time to use crying babe audios, or other highly sofisticated decoys in the middle of the city without nobody noticing it? I mean, I can believe they try that in Gaza, but in Jerusalem or Tel-Aviv? And certainly, "looking Palestinian" means "looking human". There is nothing to tell apart hostages from Hamas fighters, as they sadly discovered.
    – Rekesoft
    Jan 8 at 10:07
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    @Rekesoft: The general claim is that Hamas tries to make combatants look like civilians. The specific tactics mentioned are there to illustrate the point (and are relevant to specific situations), but the general point applies to terrorists in general. (But either way, thank you for tacitly acknowledging that you were lying about the "everyone who looks Palestinian" thing.)
    – ruakh
    Jan 8 at 10:18
  • Isn't the question asking for details of the relevant rules of engagement, rather than an analysis of how an adjudicating body might approach the specific facts of the case the question uses as an example?
    – Will
    Jan 8 at 15:50
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For example it's easy to justify a bombing, as long as some "fighting age males" died

On that broadening of the distinction between military personnel and civilians, we could ask why not broaden it further, and say it is justified in killing women because they can be mothers of fighters, and also of children as they can grow up to be either a soldier or a mother of a soldier. Of course this leads to a genocidal war strategy.

This is why there are strict guidance set out in international law maintaining the distinction between military personnel and civilians. There is also guidance on human shields. Israel has claimed that any number of hospitals are being used as such. In such situations, proportionality must be maintained. A few Hamas militants hiding in a hospital doesn't give Israel license to bomb the hell out of it. For example, Israel claimed that al-Shifa hospital had a huge Hamas command & control centre beneath it. However, the evidence they showed to international media simply did not verify their claim. Thus their attacks on al-Shifa were unjustified and a war crime.

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    Isn't the question asking for details of that strict guidance is, not for reasons why that guidance may exist?
    – Will
    Jan 8 at 15:47
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    You gave bold claims. You need to disprove(present something that supports your claims) the photo/video material presented by IDF, if you think they made their claims up.
    – dEmigOd
    Jan 8 at 20:08
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The generally accepted laws of warfare require combatants to be clearly identified with a distinct uniform.

This is to make possible identifying combatants and civilians.

The laws of war also specify that a combatant fighting not in their uniform, but in civilian clothing or in the uniform of the opponent will be subject to execution.

In a notable application of this, Operation Greif in WW2 had German soldiers in US uniforms going behind US lines and spreading chaos. The Germans who were caught in US uniforms were shot by firing squad after a tribunal determined their guilt.

Same holds true for spies during time of war - the rules of war specify that they can be executed after their identity has been proven. In WW2, the British XX organization (double cross) offered captured German spies the opportunity to work for the UK, or be hung. Almost all took the first option.

The same rules of war also forbid conducting military operations in civilian structures such as schools, churches or hospitals.

This becomes a problem when Hamas sends combatants out not in uniform, and bases its military near or in civilian structures. It becomes very difficult for IDF forces to determine who is a combatant and who is not, while putting their own lives at risk in the process. Thus, considering any young male of fighting age in an area of active conflict to be a combatant can be considered a violation of those rules but it is forced by the unconventional methods used by Hamas that also violate those rules.

Note that Fatah in the West Bank does not use those unconventional methods, and the IDF isn't killing all young men of fighting age there.

The question to answer next is: is this the chaos of war, or is Hamas pursuing those actions contrary to the rules of warfare as deliberate policy? Is Hamas using its own civilians as human shields, also clearly against the rules of warfare.

If so, what is the correct response?

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    -1, doesn't answer the question (which is already well answered btw).
    – Erwan
    Jan 11 at 16:53

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