On the night of July 22, an Israeli F-16 dropped a one-ton bomb in a densely populated area of Gaza City, killing Hamas military wing leader Salah Shehadeh and 16 others, of whom 15 were civilians and 9 were children, including Shehadeh’s wife and child. Over one hundred others were injured in the attack.

In a Ha’aretz interview, Israeli Air Force Commander Maj. Gen. Dan Halutz claimed to be satisfied both "militarily and morally" with the operation. He maintained that the "the decision making process was right, balanced, proper and cautious," although he admitted there was a "problem…with the information" on which the attack was based.

What does international humanitarian law say about the legality of the Israeli strike?

Who Was Salah Shehadeh?

Shehadeh, 40, was the leader of Hamas’ military wing, Iz Adin al-Kassam, which he helped to found in December 1987. He was a close personal aide to Hamas’ spiritual leader, Sheikh Ahmed Yassin, and was regarded as a possible heir to Yassin. According to the Shin Bet, Israel’s secret services, Shehadeh was one of the most extreme members of Hamas, perhaps more extreme than Sheikh Yassin, whose leadership he had challenged on several occasions.

Beyond his leadership role in forging Hamas into Israel’s fiercest enemy in the Palestinian territories, Shehadeh was, according to Israel, directly responsible for dozens of attacks against both Israeli military personnel and civilians.¹

Israeli Defense Minister Benjamin Ben-Eliezer told the Israeli newspaper Ha’aretz that Shehadeh "was the biggest murderer, the man who caused Israel the most damage, nobody was bigger, stronger, more ruthless. Hundreds were killed or wounded because of him." Ben-Eliezer added that at the time of Shehadeh’s death, the Hamas leader had been in the process of planning an unprecedented, "mega-terror" attack against Israel.

A Legitimate Military Target?

Does Shehadeh’s engagement in military activities against Israel mean that he was a legitimate target for Israeli forces? The answer depends on how the Israeli-Palestinian conflict, and specifically Israel’s presence in the West Bank and Gaza Strip, is characterized in law.

According to Israel, the current violence and Israeli engagement in the West Bank and Gaza Strip are akin to an armed conflict. The head of the legal branch of the Israel Defense Forces (IDF), Colonel Daniel Reisner, stated at the start of the Al Aqsa intifada that, due to the heightened level and frequency of the violence, Israel could no longer engage in mere policing actions, but had to modify its rules of engagement for the situation in which it found itself ². It thus treats Palestinian militants as combatants and claims the right to target them accordingly, so as to neutralize whatever threat they may present to the Israeli military or to Israeli civilians.

When it is still possible to detain militants, however, Israeli officials say that every effort is made to do so, as was the case a few weeks after the Shehadeh strike, when Israel captured Abbas al Sayad, another senior Hamas military leader in the West Bank town of Tulkarem. Sayad has since been charged with murder, belonging to a terrorist organization, and a litany of other criminal charges for his alleged role in planning two suicide attacks that killed 34 people and left dozens wounded.

Many Palestinians take a different view about the nature of the conflict. They claim that it is wrong to classify the current situation as a general armed conflict entitling Israel to employ force offensively, as if its targets are part of an opposing armed force that is operating outside of its effective control and can therefore be attacked at will.

Charles Shamas, Senior Partner of the MATTIN Group, argues that Israel continues to exercise effective control over those parts of the occupied territories and their civilian population that have been placed under the administration of the Palestinian Authority, since Israel has neither relinquished the right nor lost the capacity to exercise effective control in those areas, and since, he argues, Israel has continued in fact to subject the civilians living in them to its own restrictive and coercive measures at will. Shamas points out that Israel exercises effective control over their movement between localities, over their supply of goods and over their access to natural resources. It controls the rights of all individuals to conduct external trade, travel and establish residency. It has final authority over the enactment of Palestinian legislation. Moreover, Shamas notes, under the Oslo agreements Israel retained final responsibility for security throughout the occupied territories, for the "purpose of protecting Israelis and confronting the threat of terrorism".

According to this view, under the Oslo agreements Israel simply chose to temporarily alter the manner in which it exercised effective control over parts of the occupied territories. It re-deployed its forces within the territories, withdrawing them from areas containing major urban Palestinian population concentrations. It delegated local administrative powers and responsibilities within those areas, including limited policing authorities, to the Palestinian Authority, on the condition that the PA exercise those authorities in a manner satisfactory to Israel.

Shamas argues that neither such a partial, conditional and unilaterally revocable transfer, or delegation of authorities, nor the actual state of affairs on the ground, can be construed as ending Israel’s exercise of effective control. Israel therefore continues to be bound by the corresponding duties of an occupying power, including the duty to repress criminal activity and maintain security and public order through lawful policing and criminal justice measures. It retains this duty whether it chooses to rely on the Palestinian Authority or calls upon its own agencies to implement it.

Shamas points out that under international humanitarian law an occupying power cannot choose to re-deploy its forces in a manner that renders it incapable of fulfilling its responsibilities to maintain security and public order through lawful policing and criminal justice measures, and then claim the right to attack persons and groups alleged to be responsible for criminal acts and violations of its security as if it has no lawful policing option.

He argues that Israel must deal in a responsible fashion with the failure of the unconventional arrangements it chose to make with the PLO – and with the lawlessness, the civil unrest and the non-performance of the Palestinian Authority that have accompanied Israel’s own unlawful conduct as an occupying power.

This would mean that criminal activity carried out by civilians, including by terrorist groups, must be deterred and repressed through the application of lawful policing and criminal justice measures. Civilians may be attacked as military objects only when they are encountered by an occupying power's forces in the act of using arms for other than self-defense. At all other times, neither persons known to have perpetrated such acts, persons suspected of preparing to perpetrate such acts, nor any other civilian persons may be attacked as if they were military objects.

A response to this argument was given by Eyal Benvenisti, Director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem, in an earlier interview with The Crimes of War Project (see Israel and the Palestinians: What Laws Were Broken). According to Benvenisti, the proper measure of whether Israel continues to be bound by the obligations of an occupying power is given simply by the facts on the ground: "My way of determining whether or not the Palestinian territories are occupied is to focus only on the question of effective control, because this is the test under international law for occupation. An occupier is one that has effective control over the territory. If there were areas under Palestinian control, they were not subject to Israeli occupation."

If Israel exerted effective control over the Gaza Strip at the time of the strike, then Shehadeh should have been considered a criminal, which would have obligated Israel, as the occupying power, to arrest him and punish him in a court of law. However, even if one chooses not to define the situation in the terms of policing a civilian population and instead describes it, as the Israelis do, as a situation of general armed conflict, Israel's strike may not have been legal within the framework of international humanitarian law. Thus, while some consider Shehadeh to have been a legitimate military target, the manner in which Israel pursued him may not have been legitimate, and in fact, may have been a violation of international humanitarian law.

Weighing military necessity and proportionality

In judging the legality of a military offensive, combatants must weigh the military advantage gained from the offensive against the harm inflicted by the operation on civilians. Actions cannot be undertaken that would cause disproportionate harm to civilians relative to the military advantage gained.

In this situation, Israel placed a great deal of weight on the military advantage to be gained by neutralizing Shehadeh’s capacity to harm Israeli civilians. Israeli officials claim that he was in the process of planning a series of "mega-terror" attacks of an unprecedented nature in terms of the damage they would inflict on Israeli citizens, and thus, the only way to prevent the deaths of Israeli civilians was to eliminate the threat posed by Shehadeh, at all costs.

According to official statements, Israel had been targeting Shehadeh for six months and his assassination had been postponed eight times previously to avoid harming innocent civilians around him. The last such postponement came days before the final strike, when Israeli intelligence had a positive identification that Shehadeh’s daughter was in his company at the time intended for the attack.

In the eyes of the Israeli leaders, postponement of the mission or failure to incapacitate Shehadeh would have had disastrous consequences. One senior defense official told Ha’aretz that the worry was that Shehadeh would have gone back into hiding underground and would be impossible to find for months, during which time he would be free to carry out more attacks against Israelis. "The man knew how to hide…and most of the time we were four steps behind him," the official explained.

This led the Israelis to resort to the dropping of a one-ton bomb. They had ruled out a helicopter attack because it was not thought to be powerful enough, and had decided against the use of ground forces for fear that it would lead to many Israeli casualties. A one-ton bomb was chosen after an unsuccessful strike two weeks before on a bomb workshop in Khan Yunis with a quarter-ton bomb, which only partially destroyed the building, allowing the targeted militant to escape. Choosing a half-ton bomb would have meant using two of them because of the likelihood that one could completely miss the target.

A Calculated Risk

In choosing to proceed with the operation as planned, however, the Israelis may have violated the laws of war, based on their failure to do all they could to prevent the injury or death of civilians, and damage to civilian property.

In their joint inquiry into the attack, the Shin Bet Security Service and the Israel Defense Forces (IDF) determined that there were "gaps in information and assessments with regard to the presence of civilians in the apartment in which Shehadeh was hiding out and nearby homes – a fault that brought about fatal results." A statement by the IDF stated that it regretted the deaths of civilians and that the "timing of the operation or its method would have changed" had it known of the presence of women and children in the building with Shehadeh, though it reiterated its claim that there was an urgent need to strike against the Hamas military wing.

Apparently, conflicting assessments from the Air Force and from the Shin Bet of the potential effect of the strike were presented to Shin Bet chief Avi Dichter, Israeli Prime Minister Ariel Sharon and Defense Minister Ben-Eliezer. Israeli Air Force assessments – based on scientific tests performed to determine the impact of a one-ton bomb – of the probable collateral damage anticipated that the building would be completely destroyed, killing everyone inside, and that the residents of the nearby buildings, if there were any, would suffer nothing more than shock and minor wounds from shrapnel or cuts from broken glass. Shin Bet analysis, however, did not concur, concluding that too much damage would have been caused to the rest of the neighborhood.

Shin Bet officials also claimed to have thought that the nearby buildings were inhabited, and passed this information on to the security cabinet, while the IDF analysis suggested that the buildings were empty. Ha’aretz reported, however, that aerial photographs taken by the IDF, which would have shown the buildings to be occupied, were only analyzed after the attack.

Sharon and Ben-Eliezer put faith in the Air Force’s analysis and went ahead with the operation.

As for the targeted building itself, the Shin Bet, which had tracked Shehadeh since Hamas purchased the apartment for him several weeks ago, claimed the apartment was an operational hideout, and that Shehadeh’s family did not live there, but only visited occasionally. On the night of the attack, Shin Bet intelligence thought Shehadeh was meeting with a senior Hamas aide and did not have any information regarding his wife and daughter. They admitted, though, to not having the same positive information on the family members whereabouts that had ruled out the strike a few nights beforehand.

As one Israeli official involved in the planning told Ha’aretz, "The assumption, which had a high probability, was that they weren’t there," and thus, he said, "the bombing entailed a certain risk, which to our understanding was reasonable, given who the man is and the chance to get him."

Joe Stork, Washington Director of the Middle East and North Africa Division of Human Rights Watch condemned the attack, saying that the attack was clearly not carried out in a manner that minimized casualties: "It should never have gone ahead. In such a crowded civilian area, these deaths and injuries were absolutely foreseeable."

A case for the ICC?

Despite Palestinian and other pleas, the chances of an Israel official being brought before the International Criminal Court in The Hague to answer for the attack on Shehadeh are negligible. Israel has said that it does not intend to ratify the ICC’s statute; therefore the only way the court could obtain jurisdiction over the case would be through a referral by the Security Council, over which the United States would have power of veto.

In any case, Israel has already conducted an inquiry into the matter, which did not find that any individuals should be investigated further for criminal responsibility. Such an investigation would preclude further action by the ICC, unless the court ruled that it was not a genuine and independent investigation.

1 Main Terror Attacks for which Salah Shehade was Responsible For

2   Press Briefing by Colonel Daniel Reisner, Head of the International Law Branch of the IDF Legal Division, Jerusalem, November 15, 2000

Related chapters from Crimes of War: What the Public Should Know:

Occupation of Territory
Proportionality
Protected Persons
Soldiers
Wanton Destruction
War Crimes, Categories of
Willfulness

Related Links

Israeli Airstrike on Crowded Civilian Area Condemned
Human Rights Watch

Findings of the inquiry by the Israeli government into the death of Salah Shehadeh
The Israel Ministry of Foreign Affairs

Israeli forces kill 15 Palestinians, including infants and children
LAW – The Palestinian Society for the Protection of Human Rights and the Environment, Press Release July 23, 2002

Portrait of a Hamas Leader
Israel Defense Forces

The high and the mighty – an interview with Israeli Air Force Commander Major General Dan Halutz
Vered Levy-Barzilai
Ha’aretz, August 23, 2002

Press Briefing by Colonel Daniel Reisner, Head of the International Law Branch of the IDF Legal Division
Jerusalem, November 15, 2000

Israel’s Assassination Policy – Extra-Judicial Executions (PDF File)
Yael Stein, trans. Maya Johnston
B’tselem – The Israeli Information Center for Human Rights in the Occupied Territories

Map: Staged Israeli Withdrawals from Palestinian territories

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