Interviews and introduction by Stacy Sullivan

The Israeli incursion into the West Bank that began on March 29, following a spate of lethal suicide bombings against Israeli civilians, has drawn widespread international criticism. There have been reports of indiscriminate targeting of Palestinian civilians, bulldozing of civilian homes, impeding of ambulances and targeting of journalists. At the refugee camp of Jenin, scene of the fiercest fighting, Palestinians say that the Israeli army carried out a massacre that left hundreds of people dead.

All of these alleged actions would constitute violations of international humanitarian law, which forbids the targeting of civilians, the use of excessive force, and the targeting of ambulances and medical personnel. At the same time, however, Israel maintains that suicide bombings by militant Palestinian groups are illegal acts of terrorism, and that they have the right to defend themselves against these attacks by destroying the infrastructure from which they are launched. They say they are not deliberately targeting civilians, but cannot avoid damaging civilian property and causing civilian deaths when Palestinian fighters are intermingled with the civilian population.

In recent days the fighting has subsided, and Israel has lifted its siege of Yasser Arafat’s headquarters in Ramallah. However, the dispute about the legality of actions on both sides remains heated. On April 19, Israel’s foreign minister Shimon Peres suggested that his country would accept a United Nations fact-finding mission to investigate the actions of Israeli forces during the fighting at Jenin. But the Israeli government would not agree to the mandate for the commission formulated by the United Nations, and the idea has been abandoned.

On the Israeli side, official spokesmen have said that documents seized from Palestinian Authority buildings, and information provided by prisoners taken during the military incursions into the West Bank, have provided clear evidence of Yasser Arafat’s direct authorization of terror attacks against Israeli civilians. Palestinian officials dispute the authenticity of the documents. No details of the information provided by Palestinians in Israeli captivity has been published.

A year ago, the Crimes of War Project posted an expert analysis on the Palestinian-Israeli conflict, which included both Israeli and Palestinian lawyers, as well as other experts. Our primary question at the time was whether or not the clashes amounted to war (or, in legal parlance, an armed conflict) and if so, what rules governing warfare applied. At the time, we found that there was no consensus among our experts. Some believed the conflict was tantamount to war and that the laws of war should apply. Others believed that the Palestinian actions against the state of Israel amounted to criminal activity that should simply be punished by the police.

In light of the recent escalation of violence in the region, and the allegations of illegal acts on both sides, the Crimes of War Project decided to revisit the question with another expert analysis on Israeli-Palestinian conflict.

In the latest phase of the conflict, Israel’s Prime Minister Ariel Sharon has charged that the Palestinian Authority and its leader Yasser Arafat have not acted to prevent terrorist attacks against Israel launched from the territory they control. Furthermore, they allege that some Palestinian groups that are involved in attacks inside Israel – notably the recently-formed al-Aqsa Martyrs' Brigades – have links with Arafat and the rest of the Palestinian leadership. Therefore, Sharon argues, Israel is justified in re-entering territory that it ceded to Palestinian administration under the peace process stemming from the 1993 Oslo agreement; and it is justified in attacking Palestinian Authority facilities.

On the Palestinian side, Israel’s military operation is viewed instead as a punitive act of aggression, aimed at toppling a legitimate political authority and at demoralizing the civilian population. Palestinian spokesmen have denied that Israel’s actions can be justified as self-defence, and say that the loss of civilian life and the damage to civilian property have been deliberate objectives of Israel’s military incursions. In opposition to the attacks, Palestinian Authority police and gunmen have resisted together with militants from al-Aqsa, Hamas and other groups.

Among the questions we posed to our experts are the following:

• Do the Palestinians have a right to use force?
• Is this a war? If it is, then what rules apply?
• Should the Palestinian gunmen be considered combatants or criminals?
• Are the Palestinians an organized force under a command structure?
• Are the Israeli Defense Forces using excessive or indiscriminate force?
• What does the law say about combating fighters who intermingle with the civilian population?
• Is there a legal case for the Palestinian request for international intervention?
• Could Arafat or Sharon be held accountable for war crimes?

Finally, we asked them to comment on Israeli’s alleged violations of international humanitarian law, such as targeting and impeding ambulances, targeting journalists, ICRC representatives, and terrorizing the civilian population.

As they did in our last analysis, our legal experts disagreed about the status of the Palestinian areas and the nature of the conflict. Most agreed that the Palestinian areas constitute "occupied territory," and that the Palestinians had a legal right to fight against Israeli occupation. However, one expert maintained that the areas under Palestinian control could not be seen as occupied by Israel (until temporarily re-taken by the Israeli army during recent fighting), that the Palestinians had made a commitment to negotiate under the Oslo peace process, and that they had no right to resort to force.

All but one of our experts agreed that the Palestinians had violated the laws of war in sending suicide bombers against Israeli civilians. All but one also agreed that that the Israeli Defense Forces had seemingly committed war crimes by unleashing overwhelming force against the civilian population, and targeting journalists, aid workers and ambulances.

With one exception, our experts also agreed that the current fighting is an armed conflict and that the laws of war apply to both sides. "Humanitarian law, it must apply in exactly the same way whether the Palestinians are right or they are wrong. This is difficult for the Palestinians to accept, but it is basic in humanitarian law," said Marco Sassoli, Professor of International Law at the University of Quebec, Montréal.

In addition, several of our experts said that crimes committed by one side did not justify crimes on the other side. According to Michel Veuthey, former legal advisor to the International Committee of the Red Cross, "Just because groups on the Palestinian side do not respect the laws of war, that does not give the Israelis the right not to respect the laws of war."

The Third Geneva Convention defines combatants as forces to a conflict that have a command structure, wear fixed distinctive signs, carry their weapons openly and conduct their operations in accordance with the laws and customs of war. For the most part, our experts agreed that the Palestinians met those criteria. As combatants, the Palestinian fighters are legitimate targets, and the Israelis may kill them. However, if they are captured, they should be granted prisoner-of-war status, which means they cannot be punished for fighting. "If they are considered to be combatants, than they are immune to prosecution for lawful acts of war," explained Frits Kalshoven, Retired professor of international and humanitarian law at Leiden University, and currently a visiting professor at Groningen University. "But there you have a problem. In that case, the Israelis will probably not recognize that they are involved in an armed conflict, even though the Israelis have stated that they are at war."

Charles Shamas, a Palestinian lawyer who is chairman of the Mattin group, an organization that monitors the application of human rights law in the West Bank, was a dissenter on this point. He said he did not think the Palestinians qualified as combatants. Shamas admits that there is a good argument to say that the Palestinians are combatants, but he said that as long as there is any doubt as to their status, jurisprudence must be carried out in a manner that is least harmful to the innocent civilians. "My overwhelming consideration is that as long as there is reasonable doubt, I will not call it, and it should not be treated as an armed conflict when the consequences to the general population of protected persons is so pejorative," he said.

While many of our experts believed that the Palestinians firmly qualified as combatants, they all agreed that there is some difficulty in determining who among the Palestinians is a combatant and who is a civilian because the two intermingle. They also said there was some legal difficulty about labeling the Palestinians combatants because to be combatants, they must belong to a force, but there are several forces among the Palestinians – Fatah, Hamas, Hezbollah, Islamic Jihad, etc… Our experts agreed that not all of these groups would qualify as combatants, particularly those that openly renounced the laws of war. Nonetheless, they all stated that the Israeli Defense Forces had a responsibility to make every effort to avoid civilian casualties in the fighting – and only one of our experts thought the Israelis had done that. Some pointed out that even journalists and ICRC workers are being targeted by the Israelis. "From what I see on television, it would seem that the Israelis don’t even try to identify a military objective," said Sassoli.

Dr. Curtis Francis Doebbler, Distinguished Lecture and International Human Rights Lawyer, Department of Political Science, The American University in Cairo, said that the Israelis were clearly taking reprisals against the Palestinian population, a clear violation of Article 33 in the Fourth Geneva Convention which prohibits collective punishment.

A different view of the fighting was provided by Eyal Benvenisti, Professor of International Law at the Hebrew University of Jerusalem. He pointed out that the obligation not to use indiscriminate force meant that an army should choose weapons and targets that minimized damage to civilians as far as possible. Even in Jenin, he argued, the Israeli army had initially fought door-to-door with soldiers, and only used bulldozers and tanks after several Israeli soldiers were killed in booby-traps; they had also attempted to warn civilians to evacuate buildings that were about to be demolished. "It seems to me," he said, "in light of what I have read about the army’s choice of weapons, that the army did comply with the obligation to protect civilians as much as possible." Overall, he argued that the Israeli incursions could be justified as self-defence against Palestinian terrorism.

Several of our experts addressed the problem of what happens when a civilian takes up arms to fight. Generally, if a civilian takes up arms, he can be targeted as if he were a combatant as long as he is fighting. However, as soon as he puts down his weapon, he is a civilian again, which means he can be punished for his acts. Shamas said the thought that this "flip-flopping" between categories allows the Israelis to blur the lines between policing and waging war – to treat the Palestinian as combatants by targeting them and killing them during the fighting, then treating them like civilians and punishing them for their acts afterwards.

"Israel has been trying to say apply some of the regulations governing with land war, but at the same time not recognizing the Palestinians as combatants so that they are not given the balancing principles, which means prisoner of war rights. At other times, Israel said they are civilians, so the Israelis are free to criminalize the Palestinians’ action and arrest and imprison them for their actions, which they can’t do if they are combatants or have immunity from punishment for engaging in combat. But Israel doesn’t have to apply the policing code, and goes after the Palestinians as if it were waging war," Shamas said.

"The Israelis somehow have to choose their theory. If they say that Arafat controls everything, then all of these people are combatants. If he doesn’t have control, then perhaps these people are not combatants. But the Israelis can’t have it both ways simultaneously. That is what they seem to be doing," said Sassoli.

However, Benvenisti argued that the Israeli were justified in treating Palestinian fighters as neither combatants nor criminals. Although he agreed that the situation was one of armed conflict, he said that many Palestinian fighters did not meet the formal requirements for combatant status: "The Israeli practice is not to grant them prisoner-of-war status, but rather to treat them under a special Israeli law that labels them security prisoners, which is distinct from criminals. Security prisoners have certain rights that criminals don’t have."

All but one of our experts concurred that the Israeli practice of targeting and impeding ambulances is a war crime. Some pointed out that searching ambulances is allowed, but it cannot be used as an excuse to stop the movement of ambulances. "A week ago, the Israelis stopped an ambulance of the Red Crescent and found that it was carrying ammunition. But this does not mean that it loses its protection. Theoretically you have to warn before you attack. This does not mean that an ambulance may not be searched. Ambulances can be searched. But this is not an excuse to block all ambulances. You may search it, and then if you find ammunition, you must arrest the driver and put the wounded person into another ambulance and bring him to a hospital. In no circumstances can you shoot at an ambulance. Even if another ambulance was carrying weapons. This would be a presumption to say that because there was one, all of the ambulances are carrying weapons," said Sassoli.

"The protections to hospitals and medical personnel and women and children all apply to occupied territories. You cannot attack ambulances under any circumstances. It doesn’t make a difference if ambulances have been harboring terrorists or militants. Article 18 and 20 are absolute prohibitions. If someone is using an ambulance as cover to commit acts of war, they would be violating international humanitarian law. So you might be able to take after the fact action against them. But you can’t do it just because they do it. The articles say that civilian hospitals and ambulances ‘may in no circumstances be the object of attack,’" said Doebbler.

Benvenisti said that if an ambulance refused to stop on demand, then it forfeited its right of immunity. But he agreed that shooting at an ambulance without warning would be a breach of international law.

Of the experts consulted, only Doebbler made the case for international intervention to stop the Israeli incursion. Among his arguments are that states could cite the 1999 humanitarian intervention in Kosovo as a precedent for intervening in Israel.

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