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Photo:
Ilkka Uimonen / Gamma Press
Palestinians carry away the wounded during clashes with the Israelis
in Ramallah. Oct. 3, 2000.
Click here for
larger photo.
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Q:
Is this a war?
From a technical and legal perspective, Israelis war of 1948-49 has
never ended. It was an armistice agreement that ended with the war in 1967,
so the laws of war apply here. Part of that is the law of belligerent occupation
and that is applicable because the West Bank and Gaza are territories controlled
by Israel, which is not a sovereign in those areas.
Q: But the friction points in these clashes are places classified as
"Area A" which are controlled by the Palestinian Authority.
Who has legal title there?
Thats a good question. This is a vague position for all sides. Israel
doesnt want to admit that it still occupies "Area A."
With occupation comes duties to provide for the civilian population. But
Israel does not want to admit that it doesnt control them, because
that would mean that someone else, in this case the Palestinian Authority,
has legal title.
Q: What
is your conclusion?
The definition of occupation is effective control. If Israel doesnt
control "Area A," then this must mean it has no claim to administer
that area. But you can look at it another way: Israel continues to occupy
the entire area, and delegates the authority to administer that area to
the Palestinian Authority.
Q: Whats
the implication of that view?
Israel is not responsible for the acts of the Palestinian Authority toward
its citizens in "Area A." But, according to the Fourth Geneva
Convention, Israel is responsible for any of its acts toward Palestinian
civilians in the conflict.
Q: Does
Israel recognize the Fourth Geneva Convention?
Israeli
recognizes the Fourth Geneva Convention in general, but it does not formally
recognize its applicability to the West Bank and Gaza because of complex
issues relating to sovereignty. Although Israel doesnt recognize
its formal applicability, it has pledged to abide by it. To simplify:
Israel does recognize all the principles in the Convention relating to
the use of force.
Q: What
aspects of international law must be applied to the clashes themselves?
You must distinguish between two issues when applying international law
to these clashes. One is the action of the Israel Defense Forces toward
civilians. The other is the action of the IDF toward fighters. Israel
has a responsibility toward civilians. The first duty, of course, is to
protect them as much as possible. This implies no acts of punishment,
neither individual nor collective. The point is that any act should be
designed in a way to reduce civilian casualties as much as possible.
Q: Is
that happening?
According to Israeli press, the Israeli Defense Force has a policy of
using sharp shooters. Why? Because they think that among the demonstrators
there are gunmen who hide behind those who throw stones. So one way to
act against them is just to aim and shoot. But using sharp shooters is
not necessarily a policy to increase damage. Rather, it is designed to
increase damage to those threatening Israeli soldiers the gunmen
while decreasing it for those who are not the stone throwers.
Q: There are numerous reports of sharpshooters targeting civilians,
including children, who were not actively threatening Israeli Defense
Force soldiers. Your response?
There are policies vis-à-vis stone throwers and policies vis-à-vis
fighters. How they are being implemented I dont know. But even if
you have a conflict between two armies, there is no authority just to
kill soldiers. You must limit injuries and not punish by killing. This
is not a legitimate option. As far as I read, from time to time there
are killings of Palestinian activists. But I dont think we can ever
get to the facts. Because each side has its own view of the topic, like
a married couple. You view the same set of facts differently. Each side
feels threatened. Its hard to reconstruct the situation.
Q: However,
one of the few facts we have is the high amount of Palestinians killed,
including a number of children, compared to Israeli casualties. Does this
not reflect a disproportionate use of force and the targeting of civilians?
I don't know. I haven't been there. My impression is that there are a
small number of soldiers against a lot of people. What would be wiser
is not to have soldiers there, that way there could be a buffer zone.
But cooperation with the Palestinian Authority has failed. You have to
compare the number casualties with the overall number of people there
as well as the number of clashes. I cant really tell you.
Q: Palestinians
say the Israeli restrictions on their movements is a form of collective
punishment. Is it?
I dont think you can distinguish between whether these closures
are for security reasons or for collective punishment. Israel says this
is motivated by security. Theyve closed off territories since 1993
because of bombs. Of course Palestinians see this as collective punishment.
I guess both considerations are at play. I dont know what dominates.
But they are both in play.
Q: What
about independent inquiries, like the recent visit of an international
commission, to help resolve the many debated issues?
Perhaps they will come up with something. But both sides will contest
it. We have a long experience with such commissions dating back to the
British mandate. Nobody trusts these commissions.
Q: Are
armed Israeli settlers considered combatants?
There are many Israeli civilians who carry guns. I have students in my
classes who have guns. The fact that they carry guns does not make them
fighters. The settlers are not players, they have no personal duty here.
Neither Israeli law nor international law bestow on them no duty or right
to engage in hostilities.
Q: But
can they be considered an occupying paramilitary force?
No, unless they have the authority to fight, they cannot be considered
an occupying paramilitary force. We have the civilian guard, which patrols
the perimeter of the settlements. But this is not paramilitary, but para-police.
They are not legitimate targets. And if they shoot to kill, then they
should be tried as murders.
Q: What
should journalists look for in they are covering these clashes?
The most important point is to see if one principle is observed: you dont
mix soldiers and civilians. Civilians must be protected and the best way
to do that is to disengage them. Both sides have a duty toward the civilian
population. You can go to the Israeli Defense Force with criticism and
ask: Why did you attack civilians? Israel will respond: there were fighters
among them.
The other
point to look at is whether the response is reasonable considering the
threat. There are three principles: necessity, immediacy, and proportionality.
These are the three tests we use in customary international law, and if
those three are present, then shooting is legitimate under international
law..
Eyal Benvenisti is the Hersch Lauterpacht Professor of International Law at The Hebrew University of Jerusalem Faculty of Law. Heís also the director of The Minerva Center for Human Rights at the Hebrew University of Jerusalem and the author of The International Law of Occupation (Princeton University Press, 1993).
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