Steven Ratner argues that the current clashes amount to a civil armed conflict and that therefore, Protocol II of the Geneva Conventions, which deals with civil conflict is the most relevant aspect of international law. He points out that the law prohibits the targeting of civilians, something that both sides have been accused of doing, and the disproportionate use of force on the part of the Israelis. Further complicating the conflict are armed Israeli settlers, who Rather says are the equivalent of paramilitaries.

Q: Is this a war?
International law generally doesn’t use the term "war". It uses "armed conflict". The simplest answer is yes, this is an armed conflict. But it gets more difficult when it comes to the Geneva Conventions and the definitions of international armed conflict and internal armed conflict. International armed conflict is between states, which this is not. But the clashes are also not internal armed conflict because Israel does not have sovereignty over the West Bank and Gaza.

Q: So how can we define this?
Protocol II to the Geneva Conventions deals with civil conflict. And I think it is very close to meeting the definition of armed conflict in Protocol II. Even if it doesn’t meet exact definition, you would say that customary international humanitarian law would apply. The whole purpose of international humanitarian law is to protect civilians in these situations

Q: If Yassir Arafat at some point does declare statehood, as he has threatened in the past, will this alter the definition of the conflict, especially if, as expected, numerous countries would recognize the declaration?
If it's a unilateral declaration of statehood, I don’t think it will affect things legally. But you still have enough clear customary laws already.

Q: Have you seen clear violations of international law in this conflict?
Everything hinges on the actions of the Palestinians and the reaction of the Israelis. There will be reports on these actions from three different groups. The Palestinians will use Protocol I and say that this is international armed conflict. The Israeli ministry of foreign affairs or defense will talk about the constant threat their soldiers are under from terrorists. The third observer is outside actors, like the International Committee of the Red Cross or international commissions.

You have to look at both sides and examine violations by both. On the Israeli side, there are at least three major issues. One is proportionality in the use of arms. The second is the distinction between civilian and military targets. The third is collective punishments. It really turns on the fact as to what is happening on the ground.

The Israeli forces are apparently under instructions to return live fire only when they are in imminent physical harm — generally that means from a gun. If there is no immediate threat, if they are using deadly force against people throwing rocks haphazardly, then there is a problem of disproportionality. To answer the question whether they are violating international law requires a factual judgement, and I don’t have the exact information to make one. It seems like some Palestinians are just holding rocks, but others have guns and are using them.

Q: A major issue is accusations of Israelis deliberately targeting civilians.
An important point to remember in this case is that if a soldier is told not to fire on innocents, but does, then the state is still responsible, because the soldier is an organ of the state. Protocol I to the Geneva Conventions, article 51, paragraph 2, addresses this, [by giving protection to civilians] and paragraph 4 addresses indiscriminate fire. I don’t know if there’s any clear evidence to show this. Clearly if they were, then there’s a violation.

Q: Is this relevant to the Palestinian side?
When you get the issue of suicide bombing or gunfire at Israeli civilian vehicles, there you clearly have a situation of targeting civilians. And if the bombings are approved by the Palestinian Authority, then that is a violation of international humanitarian law for which it is responsible.

Q: How about with settlers, who are in essence armed occupiers?
There's a difference with attacks on armed settlers. While they are technically civilians, because they have taken up arms, they are also paramilitaries. They are much, much harder to define as combatants or non-combatants.

Q: What about the accusations of armed Palestinians using civilians as cover?
Using human shields is now considered a war crime. The use of civilians to shelter a combatant makes them the inadvertent target of retaliation. This is also covered in Article 51, paragraph 7 of Protocol I. But we don’t have any facts about that either. We don’t know whether this is a question of deliberate attempt, or a consequence of how the battle has developed.

Q: This comes to the issue of identifying combatants. How does international law deal with this?
This is what makes the clashes such an extraordinarily difficult situation. International law says you don’t deliberately target civilians and that you must use proportional response. But that is difficult when you have a co-mingled population — when you have rock-throwing people mixed with gun-toting people.

You are not supposed to indiscriminately target civilians and the military. Actions that cause the deaths of civilians in the course of a military operation are not illegal or a crime in and of themselves. Proportionality, which is a major precept of international law, requires responding to the threat made against you and not a greater one and affects the limits to which the law tolerates civilian casualties.

Q: Is the massive difference in the number of casualties between the sides indicative of such disproportionality?
One of the hard questions is judging proportionality based on number of dead. It would be facile to say that because 90 percent of casualties are one side, this is evidence of disproportionality. The problem is really breaking down those figures to understand who was actually engaged in combat activities against the Israelis. If you find that a large number were not engaged in combat activities and were not mixed in with other combatants, then you see violation of international law. It’s like the air campaign with Kosovo. There were hundreds of Serb military and civilian dead and no Americans. Was there disproportionate force there? No.

Q: What about the Israeli targeting of Palestinian children and the phenomenon of Palestinian children leading the stone-throwing?
There are conventions on child soldiers. For example, article 77 of Protocol I bans recruitment and direct participation in hostilities of children under 15, and the Convention on the Rights of the Child has protections too. Certainly as a general principle, children are not supposed to be involved in these things on either side. Certainly some percentage of people on the Palestinian side are children. And this is where the media can be confusing. They will show the 14-year-old, but not show that the crowd is mostly in their twenties.

It would seem it would boil down to what the person is doing more than that person's age. International humanitarian law will allow you to defend yourself from imminent threat, even if that threat is coming from a child. There are bans on child fighters, but not to my knowledge on response to such fighters.

Steven R. Ratner is the Albert Sidney Burleson Professor in Law at the University of Texas School of Law. In 1998-99, he served as a member of the UN Secretary-General's Group of Experts for Cambodia to examine options for prosecuting Khmer Rouge leaders for their atrocities in the 1970s.

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