Eyal Benvenisti argues that the current clashes meet the definition of war because technically Israeli's war of 1948-49 has never ended and that therefore the Geneva Conventions apply to the conflict. The most relevant, he says, is the Fourth Geneva Convention. He says that although Israel is not responsible for the acts of the Palestinian Authority toward its citizens, according to the Fourth Geneva Convention, Israel is responsible for its own acts toward Palestinian civilians. In contrast to Shamas, Benvenisti argues that because closing Gaza and the West Bank is a security precaution, one cannot distinguish between collective punishment and security concerns. In contrast to Ratner, Benvenisti says the settlers are not combatants and that if they shoot to kill, they should be tried as murders, not for war crimes.

Q: Is this a war?
From a technical and legal perspective, Israeli’s war of 1948-49 has never ended. It was an armistice agreement that ended with the war in 1967, so the laws of war apply here. Part of that is the law of belligerent occupation and that is applicable because the West Bank and Gaza are territories controlled by Israel, which is not a sovereign in those areas.

Q: But the friction points in these clashes are places classified as "Area A" which are controlled by the Palestinian Authority. Who has legal title there?
That’s a good question. This is a vague position for all sides. Israel doesn’t want to admit that it still occupies "Area A." With occupation comes duties to provide for the civilian population. But Israel does not want to admit that it doesn’t control them, because that would mean that someone else, in this case the Palestinian Authority, has legal title.

Q: What is your conclusion?
The definition of occupation is effective control. If Israel doesn’t control "Area A," then this must mean it has no claim to administer that area. But you can look at it another way: Israel continues to occupy the entire area, and delegates the authority to administer that area to the Palestinian Authority.

Q: What’s the implication of that view?
Israel is not responsible for the acts of the Palestinian Authority toward its citizens in "Area A." But, according to the Fourth Geneva Convention, Israel is responsible for any of its acts toward Palestinian civilians in the conflict.

Q: Does Israel recognize the Fourth Geneva Convention?
Israeli recognizes the Fourth Geneva Convention in general, but it does not formally recognize its applicability to the West Bank and Gaza because of complex issues relating to sovereignty. Although Israel doesn’t recognize its formal applicability, it has pledged to abide by it. To simplify: Israel does recognize all the principles in the Convention relating to the use of force.

Q: What aspects of international law must be applied to the clashes themselves?
You must distinguish between two issues when applying international law to these clashes. One is the action of the Israel Defense Forces toward civilians. The other is the action of the IDF toward fighters. Israel has a responsibility toward civilians. The first duty, of course, is to protect them as much as possible. This implies no acts of punishment, neither individual nor collective. The point is that any act should be designed in a way to reduce civilian casualties as much as possible.

Q: Is that happening?
According to Israeli press, the Israeli Defense Force has a policy of using sharp shooters. Why? Because they think that among the demonstrators there are gunmen who hide behind those who throw stones. So one way to act against them is just to aim and shoot. But using sharp shooters is not necessarily a policy to increase damage. Rather, it is designed to increase damage to those threatening Israeli soldiers — the gunmen — while decreasing it for those who are not — the stone throwers.

Q: There are numerous reports of sharpshooters targeting civilians, including children, who were not actively threatening Israeli Defense Force soldiers. Your response?
There are policies vis-à-vis stone throwers and policies vis-à-vis fighters. How they are being implemented I don’t know. But even if you have a conflict between two armies, there is no authority just to kill soldiers. You must limit injuries and not punish by killing. This is not a legitimate option. As far as I read, from time to time there are killings of Palestinian activists. But I don’t think we can ever get to the facts. Because each side has its own view of the topic, like a married couple. You view the same set of facts differently. Each side feels threatened. It’s hard to reconstruct the situation.

Q: However, one of the few facts we have is the high amount of Palestinians killed, including a number of children, compared to Israeli casualties. Does this not reflect a disproportionate use of force and the targeting of civilians?
I don't know. I haven't been there. My impression is that there are a small number of soldiers against a lot of people. What would be wiser is not to have soldiers there, that way there could be a buffer zone. But cooperation with the Palestinian Authority has failed. You have to compare the number casualties with the overall number of people there as well as the number of clashes. I can’t really tell you.

Q: Palestinians say the Israeli restrictions on their movements is a form of collective punishment. Is it?
I don’t think you can distinguish between whether these closures are for security reasons or for collective punishment. Israel says this is motivated by security. They’ve closed off territories since 1993 because of bombs. Of course Palestinians see this as collective punishment. I guess both considerations are at play. I don’t know what dominates. But they are both in play.

Q: What about independent inquiries, like the recent visit of an international commission, to help resolve the many debated issues?
Perhaps they will come up with something. But both sides will contest it. We have a long experience with such commissions dating back to the British mandate. Nobody trusts these commissions.

Q: Are armed Israeli settlers considered combatants?
There are many Israeli civilians who carry guns. I have students in my classes who have guns. The fact that they carry guns does not make them fighters. The settlers are not players, they have no personal duty here. Neither Israeli law nor international law bestow on them no duty or right to engage in hostilities.

Q: But can they be considered an occupying paramilitary force?
No, unless they have the authority to fight, they cannot be considered an occupying paramilitary force. We have the civilian guard, which patrols the perimeter of the settlements. But this is not paramilitary, but para-police. They are not legitimate targets. And if they shoot to kill, then they should be tried as murders.

Q: What should journalists look for in they are covering these clashes?
The most important point is to see if one principle is observed: you don’t mix soldiers and civilians. Civilians must be protected and the best way to do that is to disengage them. Both sides have a duty toward the civilian population. You can go to the Israeli Defense Force with criticism and ask: Why did you attack civilians? Israel will respond: there were fighters among them.

The other point to look at is whether the response is reasonable considering the threat. There are three principles: necessity, immediacy, and proportionality. These are the three tests we use in customary international law, and if those three are present, then shooting is legitimate under international law..

Eyal Benvenisti is the Hersch Lauterpacht Professor of International Law at The Hebrew University of Jerusalem Faculty of Law. He Ìs also the director of The Minerva Center for Human Rights at the Hebrew University of Jerusalem and the author of The International Law of Occupation (Princeton University Press, 1993).

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