At the end of 2008, I put up a post in which I suggested that a key issue in assessing the lawfulness of Israeli airstrikes in Gaza was determning the status of Hama police officers. Before attempting to make the proportionality calculation International Humanitarian Law (IHL) requires, one has to first answer the question who is a civilian and who is a legitimate target. As has been pointed out on this site, one needs to be clear about the relevant facts before engaging in the required legal analysis.
Darryl Li, a student of mine at Yale Law School, sent me an email, in response to my earlier post, in which he attempts to set out what he considers to be the relevant facts regarding the structure of the Gaza police and the status of the police officers. Darryl has worked in Gaza for Human Rights Watch, B’tselem (the Israeli Human Rights group), and the Palestinian Centre for Human Rights. With his permission, I set out some of his email to me.
Gaza police are distinct, operationally and otherwise, from the armed wing of Hamas, the ‘Izz al-Din al-Qassam Brigades. There may be individuals who are members of both but Hamas-controlled police use the same facilities, wear the same uniforms, and have pretty much the same internal chain of command that existed under Fatah control, at least as far as I could tell during my last trip in January. Hamas membership is not a prerequisite to being hired, though I’m sure it helps. Indeed, the commander of the Gaza police, who was killed on the first day of the raids, Tawfiq Jabr, was actually a Fatah man, a career police official who had even supervised the arrest of Hamas activists during the Oslo period.
Ever since the establishment of the Palestinian Authority, the security services, and especially general police, have for the most part hampered armed attacks against Israel. Not simply in the general sense of cracking down (or not — there is an old tired debate about this) on such groups, but more importantly because they have served as a public employment mechanism and have essentially ‘captured’ the labor of middle-aged cadres, Soviet and Chinese-trained, who developed considerable military experience while fighting in Lebanon. This dynamic deprived the armed groups of useful military experience and in the early years after 2000 left armed attacks essentially in the hands of children (case-in-point: Zakaria Zubaydi of the Aqsa brigades in Jenin).
In fact, the non-combatant status of Hamas policemen — which in this case is also tantamount to their plain-sight vulnerability to massive aerial attack — points to probably the only interesting political lesson I have drawn from this round of fighting, namely that Hamas has committed the same strategic error that they rightly criticized Fatah for: the doomed attempt to create a quasi-state authority without first achieving the rudiments of sovereignty. Hamas, like Fatah before it, has the vulnerability of a state army without any of its benefits as far as ending the occupation is concerned. The Palestinians have at most a civil police force for internal control and an irregular wing to deter invasions of urban areas. . . .
I suggested in my earlier post that if Gaza is still occupied territory the present conflict is part of an international armed conflict and that police officers (and indeed Hamas fighters) would be civilians. This is because they would not qualify as combatants under either the Geneva Conventions or under Art. 50 of Add. Protocol I. Gaza police officers (and Hamas fighters) would only then be legitimate targets if they are civilians who are taking a direct part in hostilities.
There is no clear definition of what constitutes direct participation in hostilities. According to the ICRC Commentary on AP I, hostile acts are “acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.” In the Targetted Killings case , the Israeli Supreme Court stated, correctly in my view, that acts which are intended to cause damage to civilians should also be regarded as hostile acts. It is therefore clear that a a Hamas fighter who takes up arms and intends to use it offensively against Israelis will be taking a direct part in hostilities. However, it is difficult to see that just being a police officer concerned with internal security and internal law and order would constitute direct participation in hostilities. According to a recent BBC article – “Gaza Conflict: Who is a Civilian?”, “The IDF says it has intelligence that members of the police force often “moonlight” with rocket squads, but has given no details about the specific sites or individuals targeted.” If this is true, those members of the police would be taking a direct part in hostilities. However, only those members of the police would be taking a direct part in hostilities. This would not make police officers in general legitimate targets. Other police officers would continue to be civilians and they should be included in the civilian column when one is making an assessment of whether an attack causes disproportionate loss of civilian life.
If some members of the Gaza police have or do take a direct part in hostilities, those individual police officers will only lose the immunity from attack which civilians are entitled to (and they will only be legitimate targets) “for such time” as they take a direct part in hostilities. This phrase is included in. Art. 51(3) of Add. Protocol I which Israel is not a party to. Although the Israeli government takes the view that this qualification is not part of customary international law, the Israeli Supreme Court held in the Targetted Killings case that the qualification is included in customary international humanitarian law. The question then is what is the time within which a person is taking a direct part in hostilities and may be lawfully be attacked. Is it only at such time when a Hamas fighter or perhaps police officer is firing a rocket (as human rights groups claim)? Does it include the time when the person is proceeding to or returning from firing such a rocket? Or does it include all times when a person is a member of a group committed to fighting the adversary? This last approach, the membership approach, would mean that a police officer who has joined the fighting wing of Hamas is always open to attack until he or she takes overt steps to remove oneself from the group. The approach would lead to parity between members of non-State fighting groups and regular armed forces since members of regular armed forces are always legitimate targets. However, a problem with such an approach is that it may be difficult to know that a person is a member of a group or that he or she has left the membership. Afterall, these groups don’t wear identifying uniforms like regular armed forces. So the possibility of error is higher.