Did the Nuseirat hostage rescue operation comply with international law?

The dramatic and audacious operation conducted on Saturday to rescue four Israeli hostages from the clutches of Hamas was lauded and celebrated across Israel, providing a rare moment of hope and good news for the country following eight months of grinding war and often depressing military campaign.

However, the operation was also roundly condemned by numerous international parties due to the high number of Palestinian casualties.

UN Secretary General Antonio Guterres expressed “condemnation” for what he claimed were the deaths of “hundreds of Palestinian civilians,” and EU foreign policy chief Josep Borrell described the events as “a bloodbath.”

Unverified claims by Hamas put the death toll at 274, though they did not distinguish between civilians and combatants. The IDF said it was aware of “under 100” Palestinian casualties, but provided no source for the estimate or breakdown between civilian and combatant deaths.

Numerous Palestinian eyewitnesses told media outlets they saw many dead bodies scattered around the Nuseirat area and described hundreds of people hurt with missing limbs and other severe injuries.

A local man by the name of Abdel Salam Darwish told the BBC he was in a market buying vegetables when he heard fighter jets and the sound of gunfire.

“Afterwards, people’s bodies were in pieces, scattered in the streets, and blood stained the walls,” the BBC quoted him as saying.

The rescue mission

The four hostages, Noa Argamani, 26, Almog Meir Jan, 22, Andrey Kozlov, 27, and Shlomi Ziv, 41, were being held captive in two residential apartment buildings in the densely populated Nuseirat refugee camp.

The operation was carried out during the day by the Israel Police’s elite Yamam counter-terrorism unit, together with the IDF and the Shin Bet intelligence agency. The mission was planned weeks in advance, during which intelligence on the hostages’ locations was obtained and studied.

The Yamam unit entered the two buildings simultaneously, and while Argamani was extracted smoothly, the rescue of the three men resulted in a major gun battle, where Yamam Chief Inspector Arnon Zmora was fatally wounded.

Further complicating matters, the extraction vehicle for the three male hostages came under fire, causing it to break down and requiring a larger rescue force to extract the team.

An IDF captain of a UAV squadron mission, who was involved in the operation and interviewed anonymously by Channel 12 news, said “many” Hamas combatants began converging on the scene of the operation after the hostages were extracted from the buildings.

These gunmen began firing at the forces, the officer said, adding, “We rained down fire at a relatively fast rate in order to ensure that no one got close to the [extraction] vehicle and that there was enough time for the rescue force to get there and rescue the [extraction] force.”

The officer said that the initial rescue team became stuck and that operational guidelines called for them to fortify themselves in place. The UAV squadron was supposed to “isolate [the team] from all threats and wait for the larger rescue force to arrive.”

Video footage taken from the scene showed large explosions and smoke clouds billowing over the neighborhood. One eyewitness, who was interviewed by an Arabic outlet and then broadcasted by Kan News, said “there was fire at a crazy rate; airplanes began attacking from the sky from all fronts.”

Proportionality and precaution

In light of the circumstances of the operation and the deadly consequences it wrought, can the IDF be said to have complied with the laws of armed conflict?

Several legal scholars and human rights experts have raised concerns over the legality of the mission.

Kenneth Roth, the former director of Human Right’s Watch and longtime, ardent critic of Israel, said that since the operation was deliberately conducted during the day, it increased the anticipated harm to civilians.

“The problem with operating during the day is civilians are all about, and some of the bombs clearly fell either on or adjacent to a market in Nuseirat which was filled with people,” he told Al Jazeera.

“In those circumstances you predictably will get larger numbers of civilian casualties then if it would have been a nighttime operation. That is inconsistent with the duty to take all feasible precautions to spare civilian harm.”

Customary International Humanitarian Law as set out by the International Committee of the Red Cross stipulates that “all feasible precautions” must be taken to avoid or minimize civilian casualties when conducting military operations.

Roth, however, noted that Hamas opened fire on the rescue forces and it was not known how many of the Palestinian casualties were civilians and combatants.

On Tuesday, a spokesperson for the UN human rights office also called into question the legality of the operation on the basis of the same principles mentioned by Roth.

“The manner in which the raid was conducted in such a densely populated area seriously calls into question whether the principles of distinction, proportionality and precaution — as set out under the laws of war — were respected by the Israeli forces,” said Jeremy Laurence, spokesperson for the UN High Commissioner for Human Rights.

“All these actions, by both parties, may amount to war crimes,” he added.

The ‘military advantage’ of rescuing the hostages

Dr. Tammy Caner, a researcher at the Institute for National Security Studies at Tel Aviv University, said that the key principle at play in evaluating the legality of military operations is that of proportionality.

Additional Protocol I of the Geneva Convention states that an attack which may be expected to cause civilian casualties and damage “which would be excessive in relation to the concrete and direct military advantage anticipated” is illegal.

In other words, if a military commander anticipates that the number of civilian casualties or injuries from an operation targeting a lawful military target would be disproportionate to the military advantage to be gained from the attack, that attack would be illegal.

But the equation of what might be considered “excessive” civilian casualties can vary, depending on the value of the target.

“Rescuing the hostages did not just constitute a significant ‘military advantage’ but [the operation] achieved one of the war’s overarching goals — the release of the four hostages,” argued Caner.

“So, while there may have been significant collateral damage to civilians, it was not considered excessive under these circumstances.”

She also said that the assessment of an attack’s legality does not depend on an assessment of the actual civilian harm that occurred after the attack, but rather on “harm that is reasonably foreseeable — that is, expected to result from the attack in the ordinary course of events.”

Caner noted that the hostages were placed by Hamas in civilian apartment buildings amid a densely populated civilian neighborhood, and that the IDF extraction forces came under heavy fire, reportedly including from heavy machine guns and rocket propelled grenades.

Emanuel Gross, an emeritus professor from Haifa University’s Faculty of Law and an expert on international law relating to combatting terrorism, argued that Israel had a clear legal obligation toward the hostages, as its citizens, to do everything possible to rescue them ”either by negotiation or by force.”

Once the operation was underway, Israel had a right to defend both the rescue force and the hostages from the oncoming assault by the Hamas combatants.
“If they use force against you it is clear you have to react to their fire to protect the hostages and the soldiers extracting them, even if you will hit many civilians in so doing. You can’t escape these consequences,” said Gross.

Yuval Kaplinsky, a former head of the State Attorney’s Office’s International Law Department, said that since the hostages were Israeli civilians who were unlawfully abducted from the sovereign territory of their country by an illegal terrorist organization, there might be greater leeway under the laws of armed conflict for civilian casualties during an operation to rescue them.

“The situation of a hostage is different from that of a regular civilian. You’re trying to stop a very dramatic war crime against civilians [when conducting a rescue operation],” said Kaplinsky.

“Because the operation was to save the civilian hostages, you could say that there is more room for maneuver than when just attacking [an ordinary] military target, in terms of proportionality.”

Kaplinsky added that there had never been a case brought to any international court or legal tribunal prosecuting a hostage rescue mission, and that these kind of circumstances were unprecedented and therefore difficult to evaluate.

In a similar vein, Gross opined that the laws of armed conflict, largely drawn up in the first half of the twentieth century, and even earlier, were not formulated considering the sort of war Israel is currently facing.

“The kind of war we are conducting is not the classic war that international humanitarian law was created to address,” said Gross.

“International law was not designed to address the manner in which Hamas conducts war, or to provide answers to these wars.

“Such laws were created for wars between two nations, not a nation against a terror group. The international community should try to adopt different and new laws to respond correctly to the new phenomenon that we are facing now, which is states facing non-state actors like Hamas and Islamic Jihad.”