On December 27, 2008, the Israeli military fired a missile at a graduation parade for police cadets at the police headquarters in Gaza City, killing dozens of unarmed policemen. In the words of Israeli human rights organization B’Tselem:
“The attack on the main police building in Gaza killed, according to reports, forty-two Palestinians who were in a training course and were standing in formation at the time of the bombing. Participants in the course study first aid, handling of public disturbances, human rights, public-safety exercises, and so forth. Following the course, the police officers are assigned to various arms of the police force in Gaza responsible for maintaining public order”.
The attack marked the beginning of the three-week offensive known as Operation Cast Lead, which claimed the lives of more or less 1,000 Gazan civilians, depending on who is doing the counting. Much of the disparity in casualty figures stems from disagreement over whether the Hamas police should be characterised as civilians or combatants.
The Palestinian Centre for Human Rights (PCHR) reported that a total of 255 civilian police force members who were not engaged in fighting were killed during the offensive, and included this number in the total of civilian casualties that resulted from the conflict. In contrast, Israel excludes Hamas police from the category of civilians, listing them instead as Hamas fighters.
Israeli Defence Forces spokesman Captain Benjamin Rutland told the BBC: “Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm”.
However the Report of the Independent Fact Finding Committee on Gaza (“the Report”) headed by Professor John Dugard, released in May 2009, found that policemen charged with the task of maintaining law and order qualified as civilians. It concluded that Israel’s attack on the graduation parade was action taken against a civilian target and therefore a violation of international humanitarian law.
Since Hamas assumed governmental power in Gaza in July 2007, it has been administering Gaza’s social and public life as an alternative regime to the Palestinian Authority. In this governing capacity Hamas employs workers and bureaucrats to fulfil civilian-administrative functions. Only some of these workers are members of Hamas. The police units form a part of that regime, and as such are not necessarily members of the military arm of Hamas, the al-Qassam Brigades. What then is their status under international law?
Civilians and Combatants in International Law
The fundamental principle of distinction enshrined in customary and conventional international humanitarian law (IHL) demands that the parties to a conflict must at all times distinguish between the civilian population and combatants and between civilian objects and military objectives, and may only target the latter. The only situation in which civilians can be targeted is when they forfeit their protection by taking a direct part in hostilities.
Therefore police officers are presumed to immune from attack unless they are either part of the armed forces of a party to a conflict or directly participating in the hostilities despite their civilian status. The meaning of these terms in the circumstances of contemporary armed conflict has been the subject of intense debate.
On June 2, 2009, the International Committee of the Red Cross (ICRC) released a report entitled “Direct Participation in Hostilities: Interpretive Guidance”, which is the culmination of 5 years of expert meetings and consultations about the meaning of ‘direct participation in hostilities’ as well as the definitions of civilian and combatant in international and non-international armed conflicts. This report is now likely to establish itself as the starting point for consideration of the issue, and it may be helpful to assess the case of the Hamas police through the guidelines it sets out.
The ICRC report applies different criteria for establishing who is a civilian in international and non-international armed conflicts. (International conflicts are those that involve two or more states as opposing parties, while non-international conflicts are those fought against or between non-state groups.) According to the ICRC Guidance, for the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.
On the other hand, in situations of non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are regarded as civilians. This formula reflects the fact that non-state groups do not have formal armed forces in the same manner as a state. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”).
An International or Non-International Armed Conflict?
A first question, therefore, in considering whether Hamas police are legitimate targets, concerns the nature of the armed conflict. In this case the question is enormously complex, reflecting the unique status of the Palestinian territories and Gaza in particular. The question of Palestinian statehood is unresolved, thus the conflict possibly cannot be described seen as one between two sovereign states. However, the conflict cannot be categorized as internal, as the Gaza Strip is a distinct and unique entity, a part of Palestine and is a member of the Arab League.
Although Israel claims to have officially withdrawn from the Gaza Strip, many people continue to regard it as occupied territory governed by the Fourth Geneva Convention which applies to territories occupied in the course of international armed conflicts. This would suggest that the Gaza conflict should be regarded as international, a position that also seems consistent with the reasoning of the Israeli Supreme Court in the 2006 Targeted Killings Case.
On the other hand, when fighting breaks out during a long-term occupation between the occupying power (a state) and non-state armed groups, such as may be understood to be the case between the State of Israel and Hamas it is generally qualified as a non-international armed conflict. In addition, some people would claim that Gaza is no longer occupied, following the Israeli withdrawal in 2005, but that Hamas cannot be described as the de facto governing authority of a state: in that case, the conflict might be non-international in nature.
If the conflict is considered international in nature, there needs to be a clarification of the meaning of ‘armed forces’ and who constitute ‘members’ thereof. Should the conflict instead be classified as non-international or ‘internal’, the determination of whether Hamas police are civilians for the purposes of IHL rests on the interpretation of the phrases ‘organised armed groups’ and ‘continuous combat function’.
Armed Forces in International Armed Conflict
Article 43(1) of Additional Protocol 1 states: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates”. While, by definition, police are not part of the armed forces (they are a law enforcement agency), and if the characterisation made by Israel is accurate, can Hamas police officers and other law enforcement agents be subsumed under the heading of ‘members of the armed forces’, who would be legitimately subject to attack?
The ICRC Guidance states that “all armed actors showing a sufficient degree of military organization and belonging to a party to the conflict must be regarded as part of the armed forces of that party”.
Hamas police forces are clearly an organized group and an official body of the Hamas regime in Gaza. The key question is whether they can be described as a military organization attached to or fighting alongside Hamas’ armed wing, the Izz ad-Din al-Qassam Brigades. The Brigades are the military wing of the Hamas organisation, they are an armed group, and would be considered as legitimate targets under IHL.
The Geneva Conventions recognise that some groups apart from the regular armed forces can be used to conduct military operations. According to the law, states that wish to use such groups should incorporate them into their armed forces. Article 43(3) of the First Additional Protocol requires that “whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict”.
But even without a formal process of incorporation, organized groups that take a regular part in hostilities may be considered part of the state’s armed forces. According to Rule 4 of the ICRC’s Customary International Humanitarian Law Study, “Incorporation of paramilitary or armed law enforcement agencies into armed forces is usually carried out through a formal act, for example, an act of parliament. In the absence of formal incorporation, the status of such groups will be judged on the facts and in the light of the criteria for defining armed forces. When these units take part in hostilities and fulfill the criteria of armed forces, they are considered combatants”.
Armed Groups in Internal Armed Conflict
As with State parties to armed conflicts, the ICRC Guidance states that non-State parties (such as Hamas) comprise both fighting forces and supportive segments of the civilian population, such as political and civilian wings. The term ‘organized armed group’, however, refers exclusively to the armed or military wing of a non-State party: its armed forces in a functional sense. In the case of Hamas, the organised armed group would be the Al-Qassam Brigades. This distinction between military and civilians wings has important consequences for the determination of whether Hamas police officials would count as civilians under international humanitarian law.
A report commissioned by Israeli Defence Minister Ehud Barak, released on May 24 by the Orient Group, claims that 88% of the police officers present at the graduation ceremony were ‘terror operatives’, ‘many of them’ belonging to the Izz ad-Din al-Qassam Brigades. But the fact that not all of the police officers were part of the Brigades suggests that membership of the Brigades is not automatic or compulsory for police officials. And according to a report that appeared in The Telegraph on 1 July 2007, “Hamas has bolstered the police force with about 400 members of its so-called Executive Force and militants on loan from its armed wing, the al-Qassam Brigades”. This would suggest that the police force as a whole is not an organized military group, though some of its members may be part of such a group.
Under the ICRC Guidance, an individual’s membership of the al-Qassam Brigades would depend on whether the ‘continuous function’ assumed by an individual Hamas policeman corresponds to that collectively exercised by the Brigades as a whole, namely the conduct of hostilities on behalf of Hamas. An example would be where a Hamas police officer has repeatedly, directly participated in hostilities in support of the Al-Qassam Brigades in circumstances indicating that such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation. Clearly this is a question of fact, and it implies that information on individual police members is necessary before they are the legitimate subjects of attack by Israeli forces, although this information would of course be difficult to obtain.
Members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members by virtue of their continuous combat function. Where individuals go beyond spontaneous, sporadic, or unorganized direct participation in hostilities and become members of an organized armed group belonging to a party to the conflict, the ICRC believes that IHL deprives them of protection against direct attack for as long as they remain members of that group.
Those Hamas police members who are also active members of the Al-Qassam Brigades, who regularly, continuously and permanently carry out tasks on behalf of the Brigades, therefore lose their protection from direct attack under IHL, according to the ICRC.
Hamas Police as Civilians
Assuming one accepts the ICRC approach, Hamas police are only legitimate targets if they regularly fight as part of an organised armed group, above and beyond their membership of the police. Otherwise, they are civilians and may only be subject to attack if, when, and for such time as they directly take part in hostilities.
The concept of ‘direct participation in hostilities’ (DPH) in the context of international armed conflicts is found in Article 51(3) of the Additional Protocol 1 to the Geneva Conventions and it states that: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities”. Israel has not signed the First Additional Protocol but this provision is widely recognised as part of customary law.
The ICRC guidance states that “the notion of direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict” and does not refer to a person’s status or affiliation. The notion is to be interpreted synonymously in situations of international and non-international armed conflict.
It is difficult to see how a graduation ceremony could be described as direct participation in hostilities.
The Position of Israel
The explanation for the targeting of police on December 27 was given by a representative of Israel’s Judge Advocate General’s office:
“When a terrorist organization controls the government, all government ministries are used to fulfil the objectives of the terrorist organization. Hamas does not make the separation that is customary in an orderly-run country. The apparatuses and positions are completely intermixed there. There are commanders who command an official force and also a secret combat force. Commanders of official forces have declared that they are part of the ‘resistance’. This connection between forces has created a situation in which separation is non-existent”.
This statement by the Judge Advocate General’s office appears to suggest that the justification for the targeting was not based on information about any of the Hamas police officers as individuals. Professor Philippe Sands of University College London takes issue with this approach, saying that “once you extend the definition of combatant in the way that IDF is apparently doing, you begin to associate individuals who are only indirectly or peripherally involved … it becomes an open-ended definition, which undermines the very object and purpose of the rules that are intended to be applied”.
The ICRC interpretation, if it comes to be accepted through state practice, would mean that the Israeli Defence Forces, before targeting Hamas police officers in that capacity, must certain of the following. They must have knowledge that the Hamas police forces are incorporated, or are de facto, a part of the Al-Qassam Brigades. In the absence of knowledge of such a state of affairs, the police officers they are targeting must be members of the Brigades, a status going beyond mere ‘affiliation’. That is, that those ‘members’ are in a ‘continuous combat function’ and carry out duties for al-Qassam on a continuous, permanent basis.
The IDF must distinguish members of the armed forces of Hamas from civilians who do not directly participate in hostilities, or who do but only on a spontaneous, sporadic or unorganized basis. If a group of Hamas policemen contains a number who are also members of the Al-Qassam Brigades, Israel would still be obliged to take into account the presence of other policemen who do not have any such affiliation and are therefore entitled to protection under IHL.
In such a case, the IDF would be obliged to respect the principle of proportionality. The harm caused by a particular attack to civilians and civilian objects must not be excessive in relation to the military advantage expected from the attack.
And in cases of doubt, a person is to be presumed protected from attack.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Clarifying the notion of direct participation in hostilities
International Committee of the Red Cross
June 2, 2009
Report of the Independent Fact Finding Committee on Gaza
Presented to the League of Arab States
April 30, 2009