Q: Is this a war?
Israel now uses the term "war," or, more precisely, "armed conflict" to describe the current clashes; but that is a slightly histrionic and self-serving use of those terms in this case. This is not an international armed conflict. It is not an internal armed conflict conducted within the borders of a single state. It is not a war of resistance carried out by elements of an opposing military force that have not surrendered to the occupying forces. Nor, to be precise, is it a mass uprising of civilians employing violent means to resist an enemy’s occupation of their territory, or to drive an occupier out of their territory. It is an uprising of large elements of a civilian population against an Occupying Power’s unlawful and predatory abuses of its control over that population and their habitat, and against the military and diplomatic measures being taken to render their harmful consequences permanent. The rules that apply are codified in the body of international humanitarian law (IHL) that governs the conduct of an Occupying Power, with a view to protecting the civilian population under its control from unnecessary and unjustified harm and suffering.

By declaring an armed conflict now Israel may wish to take the opportunity presented by the uprising to justify giving itself wider margins in employing lethal force than the laws governing occupation would allow. It may wish to diminish its responsibility for causing harm to the Palestinian civilian population at large. It may wish to prepare new justifications based on military necessity for escalating the imposition of collective penalties on the civilian population at large, targeting civilian infrastructure and property, or striking at Palestinian political leaders. Israel may wish to invoke the law of armed conflict to claim that such measures were necessary to gain its opponent’s submission. Israel may be attempting to establish new grounds to sustain its long-standing refusal to comply with the rules of IHL that govern its occupation.

However, given the realities on the ground, Israel can not yet claim that it is now confronting a war of national liberation aimed at ejecting it from the territories it occupies. Nor can it yet claim that its occupation has ended, and that it is unable to exercise lawful means to repress the various disorderly, rebellious, and violent criminal activities directed against it or its nationals. Under the military legislation it enacted to implement its agreements with the Palestinian Liberation Organization (PLO), Israel has retained final security responsibility in the territories that it has placed under Palestinian Authority (PA), civilian administration. Legally speaking, nothing but its interest in maintaining the structures and roles established under the Oslo agreements prevents it from directly conducting lawful security operations in those territories if it chooses. If it attempts to conduct such operations and its exercise of territorial control is opposed in a sustained, organized and violent fashion, then Israel’s declaration of a limited armed conflict could be upheld. As of now, the policing and security arrangements Israel chose to establish under its agreements with the PLO remain intact, however dissatisfied Israel may be as to the performance of the Palestinian police under those arrangements. It obviously can not declare war against the institutions of the PA while continuing to mandate their existence and exercise of authority. The question, then, is whether it can declare war on other elements of the civilian population under these circumstances.

In principle, an Occupying Power can declare some kind of limited armed conflict against any opponent that is organized, operating under command, and employing forceful means to expel the Occupying Power. But what if members of the civilian population are moved to forcefully resist an occupier’s perpetration of war crimes, or to defend themselves against other systematic and ongoing violations of their most basic internationally-protected rights? What if they are not organized? What if they are only loosely organized, but not organized as a fighting force?

Can the Occupying Power then cite their acts of violence, however numerous, as grounds for declaring an armed conflict, if this would effectively lower the standard of protection to which the entire civilian population is entitled? Considering the realities on the ground and the relevant principles of law, in the case of this uprising I believe that the answer is "no."

When protected civilians are improperly denied their rightful basic protections, the law recognizes their individual right to pursue their own self-protection. It also gives the Occupying Power the right to take lawful measures against any individuals when their self-protective actions become violent and threaten its forces’ security, including the lawful use of necessary lethal force. However, IHL does not allow the Occupying Power to turn individual liabilities into the collective liabilities of a civilian populace at large. It can not allow an Occupying Power that has refused to respect the rights of protected civilians under IHL to then invoke IHL to diminish or suspend those same rights simply because some number of them have resorted to violence. In such circumstances it can not allow an Occupying Power to avail itself of the greater latitude of tactical means and objectives permitted in situations of armed conflict when that would expose members of the civilian populace, including innocent civilians, to types and levels of harm from which they are protected under occupation. In short, IHL can not be applied in a manner that would reward an Occupying Power for violating the rules of IHL so extensively as to provoke large numbers of civilians into self-protective violence.

In this connection, I think that it is fair to state that there would be no uprising today but for Israel’s refusal to respect those rules, the failure of the international community to ensure Israel’s respect as IHL requires, and the failure of the political negotiations thus far to bring the population a remedy.

As well as directly protecting civilian persons and their property under occupation, IHL’s regulations protect their public institutions, their public life, and their territorial and demographic habitat. Within these limits an Occupying Power is entitled to take such action as may be necessary to ensure the security of its forces. The most broadly relevant instrument of IHL is the Fourth Geneva Convention of 1949, - "relative to the Protection of Civilian Persons in Time of War." The Fourth Geneva Convention absolutely prohibits a number of practices. For over three decades Israel has regularly engaged in virtually all of them.

Israel has insisted on its right to establish settlements despite the Convention’s unqualified prohibition against the "transfer of parts of an Occupying Power’s civilian population into the territory it occupies." To get around this prohibition Israel has tried claiming that the Fourth Geneva Convention was not de jure applicable; that the territories were not "occupied," but only "administered"; that settlements were established to meet military necessity; and that the prohibition against settlements was a "political" and not a "humanitarian" provision of the Convention.

Israel has maintained that its settlement program has no significant humanitarian repercussions, as if the radical transformations imposed on the affected population’s demographic, territorial and institutional habitat did the Palestinian civilian population no harm. But putting settlements on the ground was only the beginning of the problem. It was followed by the diversion of ground water resources, administratively induced land and water scarcities, and administrative limitation and obstruction of Palestinian agricultural and industrial activities. These measures violated the strict limits of "military necessity," the only grounds on which an occupier may take measures detrimental to the welfare of protected civilians. They crossed the line into permanent territorial conquest and economic subjugation.

Faced with the general refusal of the Palestinian population to cooperate with these policies, and confronted with both unarmed and armed acts of popular resistance, Israel regularly resorted to a number of other measures that fell far outside the limits permitted under the Convention. In the language of the Convention itself, these measures have included: extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; individual or mass forcible transfers; deportation; willful killing (including extra-judicial executions); willfully causing great suffering or serious injury to body or health (including torture and interdiction of medical care in cases of serious illness or injury); unlawful deportation or transfer and unlawful confinement; reprisals against protected persons and their property; collective penalties and measures of intimidation or of terrorism.

The victims of such practices do not have to know the law to experience the harm, pain and outrage they cause, and, eventually, take up their own self-defense. The first general Palestinian uprising (the "Intifada" of 1987 – 1993) was fueled by such desperation. So is this uprising.

Q: Does the presence of the Palestinian Authority and its armed security services make this more than an uprising?
The "Palestinian Authority" was constituted pursuant to the Oslo agreements to operate as an umbrella Palestinian governmental institution administering the affairs of the Palestinian population under Israel’s occupation. It corresponds to what the Convention terms "the authorities of the occupied territories," comprising the civilian public institutions under occupation. These civilian institutions and their personnel, including armed police, are themselves "protected" under IHL.

Under the Oslo agreements the PA was to establish a "strong police force" replacing the police force that operated under the Occupying Power’s "civilian administration" within areas of the West Bank and the Gaza Strip placed under the PA’s administration. The PA has no army. The Israeli army is the sole army operating in the occupied territories. It is primarily responsible for respecting and ensuring respect of the Palestinian civilian population’s rights that are protected by the Convention. The other High Contracting Parties to the Convention are responsible for ensuring Israel’s respect of the civilian population’s rights.

International law requires that the Oslo agreements be interpreted and applied by the two sides in conformity with the Convention. Both before and after Israel and the PLO signed the Oslo agreements, Israel made clear in word and deed its refusal to be bound by that Convention. The other High Contracting Parties repeatedly made it clear that this was unacceptable, but did nothing to ensure Israel’s respect. The making of these agreements in such circumstances proved to be the fatal flaw of the Oslo process.

However inattentive the PLO may have been to the fact that it was signing agreements with a party that remained committed to violating IHL, the PA is not bound to accept Israel’s violations, or to cooperate with them. In fact, it has a right, and some would say a duty, to resist those violations with all the lawful means at its disposal. That would include selectively refusing to implement obligations under those agreements that it finds itself unable to discharge without infringing on the rights of persons protected under IHL. In short, it may have as much right, and more duty, than the balance of the Palestinian civilian population to resist Israel’s violations. However, its institutions and personnel are equally subject to lawful repressive measures by the Occupying Power should they resort to acts of violence that threaten the security of the Occupying Power’s forces.

Q: Is Israel reacting disproportionately?
On the whole, yes. But the problem is not just one of the disproportionate use of force. First of all, force may only be used against civilians engaged in carrying out actions that directly threaten the security of the Occupying Power’s forces or the persons and property under their protection. Innocent civilians and their property may not be targeted. Every effort must be made to avoid harming them, and to minimize harm that can not be avoided. This is the principle of discrimination. Then, force may be used when the Occupying Power’s forces determine that they have no other non-violent option. This is the principle of necessity. Finally, the force used should not exceed the level required to stop the threatening activity and must also be proportionate to the harm threatened. This is the principle of proportionality.

As an Occupying Power, Israel has stretched the crucial principle of military necessity beyond the breaking point. In fact it turns it upside down. Harm is caused offensively and preemptively — to destroy the will and capacity to resist. In the first Intifada it was okay for Israeli soldiers to summarily break suspected stone-throwers’ arms to "deter" them from throwing stones. Then there are the "preemptive" strikes against civilian targets — persons and their property — , and the deliberate destruction of houses, crops, orchards and commercial and industrial facilities, because they "might" be used or "have been" used by armed Palestinians.

Occasionally civilians not in the immediate vicinity of any clashes or otherwise engaged in breaches of security have been targeted. Lethal force, including lethal sniper fire, is often unnecessarily and indiscriminately used against both armed and unarmed persons at times when no threat of death or serious injury to Israel’s armed forces existed. In the context of the clashes, where forceful measures of control were often clearly necessitated, it is also clear that less lethal or non-lethal measures of control would often have been sufficient.

In the case of extra-judicial executions, Israel now argues that Palestinian violence is threatening Israeli lives, and that the Oslo arrangements, and the recent breakdown in security cooperation between the two sides, have placed those that may plan and implement such violence outside of the reach of lawful methods of repression: namely arrest and trial. Israel’s security services would therefore arrogate to themselves the right to kill whomever they consider should be killed to protect its forces and its civilian population from the threat of violence. Israel’s only legally acceptable remedies are to exercise its right to capture, detain and try such individuals, and to gain the restoration of the PA’s security cooperation by confining its demands on the PA to measures that do not violate the Palestinian population’s rights under IHL.

Q: What is Israel’s response to the allegation that it is violating the Fourth Geneva Convention?
Israel doesn't recognize the Fourth Geneva Convention as applicable de jure to its occupation of the West Bank and Gaza. Israeli jurists like to give Israel credit for voluntarily applying what they term the "humanitarian provisions" of the Convention. They argue that it is proper for Israel to apply the Convention selectively, and interpret its provisions idiosyncratically, in view of their claim that Israel is presented with sui generis ("unique to its kind") threats to its security that IHL did not envisage. Israeli jurists and politicians have been particularly enthusiastic about the sui generis theme. Others must accept that its problems are unique, its adversaries are unique, and its appropriate standard of adherence to international humanitarian law must therefore be unique. Most other major violators of international humanitarian law have resorted to similar claims. The question is, will Israel bend to IHL, or will IHL be further contorted, until it breaks.

The lawyers of Israel’s foreign ministry have also attempted to claim that the Oslo agreements have created "new legal and political facts" (sui generis, again) that have transformed the status of the occupied Palestinian territories under international law. This hazard was anticipated by the Fourth Geneva Convention. Article 47 says that "protected persons...shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced...into the institutions or government of the occupied territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory." For good measure, Article 7 says: "No special agreement shall adversely affect the situation of protected persons [the occupied territory’s civilian population], as defined by the present Convention, nor restrict the rights which it confers upon them."

Over the past several years, for example, Israel’s Foreign Ministry has been using this argument to insist that, in its relations with its trading partners, Israel has acquired the right to treat those occupied territories, including Israel’s settlements, as part of the "territory of the State of Israel." This is a bid to get Israel’s trading partners to extend preferential treatment to products of settlement enterprises, which would implicitly entail their accepting the international legitimacy of those settlements.

Israel is now getting ready to argue internationally that the uprising has created new legal facts, ending Israel’s occupation and giving rise to a state of armed conflict. Sui generis, of course.

Q: Israel claims that gunmen use civilians as cover, especially rock-throwing youth, and that the much of the casualty count stems from this practice. The use of human shields is a violation of the Fourth Geneva Convention. Your response?
There have been clear cases in which armed Palestinians have indeed fired at Israeli troops while positioned among demonstrators, including rock-throwing youths. Cases have also been observed where they have fired and then retreated behind demonstrators. The practice, to the extent that it actually occurs, is outrageously irresponsible and should be stopped. Whether or not the Palestinian Authority can in fact prevent such behavior, it should certainly attempt to do so. It should issue a public directive covering this and other highly improper types of behavior that unnecessarily put civilians, and particularly children, at risk. But the human shields argument can not be used to justify the deliberate targeting by Israeli snipers of unarmed civilians, especially children, or even rock throwers, a practice that is equally, if not far more evident.

Q: You say the clashes can’t be seen as a PA initiative, yet Palestinians are initiating them.
It should be recognized that the clashes are being mainly instigated by broadly and loosely organized elements of the population that are also expressing strong criticism of the PA and its performance. They are clearly not operating under its direct command. Many of the gunmen are in fact little different from the older stone-throwing youths, except that they have guns. Many of these activists vocally express their goal: to break up what they see as an unjust arrangement concluded with Israel by a privileged and often corrupt elite. Many are veterans of the first Palestinian Intifada (1987-90) who have been given subsistence jobs in one of the Palestinian Authority’s many and often competing "security services," mainly to "keep them fed and out of trouble." Now their senior commanders do not dare to order them confined to barracks, and do not command them in the field. The sense on the street is that the politicians have failed, and the political equation needs to be shaken up, in Palestine, in Israel and in the Arab and international arena, if peaceful diplomacy is to have a chance to succeed. In this climate most Palestinian politicians and the official Palestinian media, no less than the official and private Arab media, dare not be seen as refusing to follow their lead.

There is no question that one of the popular themes of the uprising is to confront the Israeli army and to exploit its use of lethal force against demonstrators. The thinking behind it is very simple and very sad. It goes something like this: "We will not surrender our rights quietly. We will not let Israel continue to inflict its violence and impose its dictats with impunity. Our rage and our dead bodies may draw the world’s attention to our plight, and help impress upon Israelis the costs and risks of denying us our right to live as citizens of our own adequately sovereign, adequately resourced state. Perhaps then we can win the political solution that we have failed to gain through peaceful means."

Q: Are the Israeli closures of Palestinian areas a form of collective punishment, which is prohibited by the Fourth Geneva Convention?
I believe so. By observing the implementation of the closures, I find it very difficult to detect any bona fide security motive. Typically, movement is still possible, but very time consuming and expensive. Merchandise and labour movements – the economy and social welfare – is the main casualty. This imposes a collective penalty on the population as a whole. On the other hand, anyone who wishes to transport ten kilograms of explosives, or a firearm, between any two points is not prevented by these measures. Closures are also used to isolate individual villages, either in reprisal for acts of violent resistance by one or more residents, or as a result of confrontations with settlers, including settler attacks. In these cases vital areas of civilian life are not only disrupted, but brought to a standstill. Access to medical care and schooling may be cut off. Water and electricity supplies may be cut. When it carries out port closures Israel blocks the release of goods destined for the Palestinian areas and refuses to permit Palestinian goods to be exported.

As they have been practiced, it is difficult not to conclude that internal closures and port closures are nothing but collective penalties. On the other hand, legitimate security concerns and Israel’s own sovereign rights are more plausibly invoked by Israel when its denies the admission of Palestinian workers into Israel. Still, experts in Israel’s security services have argued that the controlled entry of Palestinian workers poses little if any real threat, and that not letting them in creates a greater security threat because of the additional economic misery it causes.

Charles Shamas is Senior Partner in the MATTIN Group, a voluntary partnership based in Ramallah that specializes in international human rights enforcement.

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