I have been convinced form the outset, that is to say from 1967, that Israel is occupying other people’s territory, even if you can’t say with certainty that it’s another people’s state. The occupation of another people’s territory may not in itself be a violation of international law, but it means that the Geneva Conventions of 1949 are applicable.

Israel denies that. Israel says that the Fourth Geneva Convention is not applicable because it is not occupying the land of another state. Nonetheless, Israel says that it respects certain aspects of the Convention anyway.

The Israelis go on to say that they have the right to take certain reprisals against the Palestinians when they are attacked. For example, they have said that when they know where an attacker lives, they have the right to go in and destroy the attacker’s house. But Israel does not have this right under international law. Other people are living in that house too. It is a civilian target. You cannot just destroy someone’s house in occupied territory. That is a form of collective punishment. The Israelis justify this behavior by saying that they are applying the law of the land that was applicable in the territory before they occupied it. They say that before they captured that territory, British law, from the time when Britain still had that territory, permitted the destruction of houses. Therefore, the Israelis argue, that is the law that still applies. But that was law before the Geneva Conventions. The British left in 1948 and the Geneva Conventions were created in 1949. Israel is a party to the Conventions, so it is the law in the Conventions that should apply. The normal rule is that the later law applies.

Now however, the Israelis no longer make that argument because they are now in open war. They consider themselves in open war.

Q: If they are in open war, would you define the Palestinians as combatants?

That’s two different matters. The Israelis begin by saying that they are fighting a war against terrorism. The argument of war against terrorism indicated a distinction between two parties – one is the good one and the other is the bad one. The good one is permitted to do what is necessary to overcome the bad one. This is a moral argument, not a legal argument. It is of a different order than the question of whether someone is a legitimate combatant. Being a combatant is a matter of international humanitarian law and that is law that applies to armed conflict, including internal armed conflict.

In an internal armed conflict, the state can always treat its adversaries as criminals. However, I think it is very possible to argue that Israel is now in an international armed conflict.

It is very possible to argue that the Israelis are now in an international armed conflict with the Palestinians. If you would accept that the Palestinians are a people with a leadership, aspiring to statehood, you could say that they are sort of a pre-state. They have had a treaty with the Israelis, the Oslo treaty. So you could say that they are already almost there and so an open armed conflict between the two is an international armed conflict waged with totally unequal means, because the Israelis of course have overwhelming power. But then that is nothing unusual for any armed conflict. So you can construe the situation as it exists at the present as an international armed conflict. I don’t know whether or not the Israelis would follow this line of argument. I doubt it. But you could do it. You could say this is an international armed conflict with combatants on both sides.

I doubt that the UN Security Council would have qualified the situation as an armed conflict. It certainly would have been objected to by the United States. But for the media, it’s quite possible, quite acceptable to apply that criterion. The media can say, "We, having taken note of the situation, and having taken cognizance of the rules of humanitarian law, we find that there is an international armed conflict." You can bring pressure to bear on public opinion. The ICRC can also make such statements.

Now, there is some difficulty defining who are the combatants on the Palestinian side, because to be combatants, you need to be a group, and there are several groups fighting on the Palestinian side. A group, in order to qualify as combatants, has to show a minimum level of respect for the rules of humanitarian law. Now you have at least two groups on the Palestinian side that from the outset have declared that they would not respect humanitarian law, that they were not interested all – Hamas and the Islamic Jihad. I don’t know whether or not Hezbollah has declared it or not, but it certainly never showed respect for humanitarian law. So these groups disqualify themselves formally. That doesn’t disqualify them as human beings under humanitarian law. Any human being, even fighting totally unlawfully, is still a human being entitled to minimum respect. And when he falls into enemy hands, he has to be handled as a human being with respect to minimum rights.

During actual battle, there is no room to distinguish between combatants and non-combatants. There are simply acts of hostility. However, for example in the Church of the Nativity, it seems to me as far as I have been following it, that the Israelis were handling that situation with care. They have not overwhelmed the church. They have laid siege to it, which they are permitted to do under the rules of war, and they are waiting for the people to come out of it and have offered to "treat them with respect". That is what they would be obliged to do. Even so, they would be able to sort them out. That would be the moment for sorting them out – to distinguish between civilians who go scot-free and people who have been involved in fighting. That’s when they should look at their status.

Either they are combatants and therefore prisoners of war, or they are criminals and they have to be put on trial. You cannot simply finish them off. If they are considered to be combatants, then they are immune to prosecution for lawful acts of war. 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.
Saying you are at war is not the same as saying that you are involved in an armed conflict. I feel that in the Middle East in the present, it is an armed conflict. But for the Israelis, there is no force in the world that can force them to agree that they are involved in an armed conflict. I don’t think any of their leaders have said that they consider themselves to be in an armed conflict in which humanitarian law would apply. When they say war, they mean something else. They wouldn’t say it so that they can keep their hands free.

Q: Another legal expert I talked to said that he believed it would be in the Palestinians’ interest not to be labeled combatants, because this would limit the scope with which the Israelis could respond to Palestinian violence.

I don’t see that Israel would get the benefit of being able to use more violence against combatants than it would against armed civilians. Under international humanitarian law, when you have a massive uprising of the civilian population in an occupied territory, the occupying force may do whatever is necessary to restore law and order and its safety. The occupying power must respect the civilian population, and do its utmost to protect those true civilians. For that purpose, he may try to overcome all violence that is perpetrated against him. You can never attack civilians.

The real situation under the law when you have an international armed conflict and the first Additional Protocol of 1977 would be applicable, there is a distinction between combatants and civilians who take part in hostilities. (Israel has not signed the additional protocols, however, so this would likely not be applicable.)

To be a combatant, you have to belong to a group. If you are an individual civilian, taking part in hostilities, you are a legitimate target as long as you are engaged in hostilities. When you put the gun down, you are no longer acting as a combatant, but you are an enemy who can be caught and punished.

You can never use force against true civilians. But you can use force against civilians who take part in hostilities. So the question becomes, what is taking part in hostilities? Does stone throwing qualify? In the present situation, probably yes. There you see that the Israelis don’t go to the limit. They don’t shoot to kill all of those youngsters throwing those rocks.

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