Yaron Ezrahi argues that the current conflict has elements of a war, but it is hard to define it as such. He points out that because some Palestinians in civilian clothes are armed, and often mixed within the unarmed civilian population, it is often difficult to identify the combatants. This ambiguity then provides a cover for the Israelis to commit war crimes. ìThe difference between this and the first Intifada is that now it has become much more ambiguous as to whether the Israeli police are facing civilians,î he says.

Q: Is this a war?
The current clashes between the Israelis and Palestinians is partly an anti-colonial war. It is also a struggle between two peoples on drawing the map of their territory. In that sense it is not so anti-colonial, but a peoples’ war. However, it is also a war in the international communication arena between claims of victimhood by both sides.

Can you form standards that can be applied blindly to actions regardless of who are the actors? Killing civilians deliberately is certainly eligible for serious consideration as a war crime. But so is the use of innocent and frightened civilians as cover for irregulars shooting from their homes. If this killing of the young boy in Gaza is not an accident, then it is a violation of the rules of war. But what do you do about the fact that Palestinian spokesman consider the live coverage of this event as the most potent weapon in their hands in the war of public opinion? On paper the Israeli Army is far stronger, but in many situations and in the communications war it may actually be the weaker party.

Q: Perhaps we can look at some of the important issues that have emerged so far in which the Geneva Conventions are relevant.
Part of the problem is identifying the combatants. What are the identities of the combatants? Both sides have this problem, although there’s more fluidity on the Palestinian side. But the Israeli side is very complicated as well, especially if you consider the settlers. The settlers are threatened by Palestinians. But they are colonizers. Does this mean that a Palestinian deliberately killing them is less of a war crime? And what is the status of Palestinian policeman who is usually in charge of keeping order at home, but at a certain moment slips into civilian clothes and shoots Israelis?

Q: And in regard to Israeli soldiers firing on unarmed civilians?
Take the guidelines given to the Israeli border police. You are allowed to open fire on unarmed civilians if you feel your life is threatened. If you are a rightwing settler who looks at a Palestinian as a monster, you might shoot at anybody within two meters. If you are the nephew of (noted peace activist) Yossi Sarid and know Palestinians as persons and not as stereotypes, you may not shoot anyone at all. The guidelines are open to too many subjective interpretations. I don’t see here anyway to deal with them except case by case, which is not good enough when we have large-scale operations like this.

But what is the alternative? If you want to work on that issue, you need to give sufficient working definitions of war crimes to handle such ambiguous situations – which are the bulk of the events. The danger of this is that the ambiguities can serve as a cover for war crimes and they can be used also to direct misplaced accusations of war crimes. Each side is relatively safe under the screen of ambiguity.

Q: In cases where you do have gunfire, is there disproportionate return of fire from the Israeli army?
There are definitely situations where there is disproportionate return of fire. But you must examine this. If this is a war, why do we have such strong fire on empty houses? Why are generals trying so hard to convince us that this is a war? Maybe because they are not convinced. It’s very ambiguous. There are cases where Israelis shoot civilians who do not threaten their lives. This is a crime, but, again, we need to look at these cases individually. When Israeli policemen face a crowd they no longer can be sure that they aren’t also facing armed Palestinian policemen out of uniform. The difference between this and the first Intifada is that now it has become much more ambiguous as to whether the Israeli police are facing civilians.

The mixture of Palestinian civilians with police complicates this. If an Israeli is shot by a Palestinian, the Israeli army will be much less restrained in shooting back. In Beit Jalla two people told me that the Tanzim [irregular Palestinian forces] invaded their houses without permission and used them to fire against Israeli civilian houses in Gilo. Then the Israeli army shot at those houses. Given you had casualties on both sides, how would you classify this event? For Palestinians, it is a war against an enemy. It is also partly a civil war. And it is a revolt. It involves actions organized by the Palestinian Authority and terrorist actions directed both by the Palestinian Authority and organizations not completely under its control which sometimes actually try to undermine it. You have hundreds of different fronts so, again, this is a very complicated situation to analyze.

Q: And the accusations by Palestinians of collective punishment?
With collective punishment we also have a problem of definition. How would you classify a curfew when you can see: a) elements of attempts to head off an expected terrorist attack; b) an attempt to prevent Palestinian workers to come to Israel after a terror attack inside Israel to prevent the situation where they are attacked by Israeli fanatics; c) a curfew in order to exert economic pressure on the Palestinian Authority because it continues to release Islamic activists from prison. Is economic pressure designed to diminish violence a war crime because it is also collective punishment? Do you categorize that situation according motives, consequences or both? Again, an organization like the Crimes of War Project will have to be very careful in assessing such situations.

Q: Can the introduction of international observers help clarify some of these complexities?
The sending of international observers may have a positive effect. Just the thought of them around could lead both sides to change their actions.

Q: Are there any other final points regarding international humanitarian law?
It is important to distinguish between the general classification of this conflict and the means used. They are not always harmonious. For example, an anti-colonial war, which is understood as a liberation war, could involve massacres that could be classified as war crimes. This happened in 1948 on both sides. War can have moral cause, but the means used can be a violation of international law or even war crimes. One can say the war on the side of colonialists is utterly indefensible, and morally condemnable, but the actual operation may not necessarily be classifiable as a war crime.

Yaron Ezrahi is Professor of Political Science at Hebrew University of Jerusalem and Senior Fellow at the Israeli Democracy Institute. He received his Ph.D. from Harvard University and is the author of Rubber Bullets: Power and Conscience in Modern Israel.

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