Crimes of War

May 8, 2002

Eyal Benvenisti,
Hersch Lauterpacht Professor of Public International Law and Director of the Minerva Center for Human Rights, Hebrew University of Jerusalem

The Israeli incursion into the West Bank is a unique situation because in international law you have the distinction between international and internal armed conflict. Here the problem is that that this is not an international armed conflict, because international armed conflict usually takes place between two states and the Palestinian authority is not a state. But on the other hand, it is not an internal armed conflict, because clearly the Palestinian Authority is not a unit of the Israeli state. So this is a unique situation. Most commentators and institutions like the United Nations treat it as if it is an international armed conflict on the assumption that if it is not internal, it must be international. So the short answer is that it is an international armed conflict, which means the laws of war apply in all respects.

Given that we have an international armed conflict, all customary international law governing international armed conflicts applies, including the Geneva Conventions of 1949 and the Hague Regulations of 1907. They apply regardless of what the parties admit or recognize. Customary international law applies to all actors. Treaty law applies only to those who ratified the treaty. What does not apply is the Additional Protocol One of 1977 to the Geneva Conventions, which Israel (among others) has not signed and is not considered customary law.

There are different arguments regarding the responsibility of the Israeli Army in the Palestinian-held areas. Some argue that Israel is an occupying power in the West Bank and Gaza. If this is the case, then there are specific laws concerning occupation in the Fourth Geneva Convention and customary international law. Under this convention, Palestinians who are residents of the Occupied Territories are considered protected persons. Protected persons have certain rights and immunities. If they choose to fight, however, they are not entitled to prisoner of war status. They would be subject to the laws or military orders of the occupying power.

Under this scenario, we have what we call police action where the Occupying Power is policing the occupied area and like in police action, can issue orders. Who ever does not comply with the orders can be detained and can be brought to justice under international law and the orders of the military command. This is one way of looking at the situation.

Another way of looking at the situation is to suggest that when fighting broke out a couple of weeks ago, the area under Palestinian control was not occupied. My way of determining whether or not the Palestinian territories are occupied is to focus only on the question of effective control, because this is the test under international law for occupation. An occupier is one that has effective control over the territory. If there were areas under Palestinian control, they were not subject to Israeli occupation. These areas Israel invaded several weeks ago. Once they were actually under Israeli tanks, they were under Israeli control and they came under occupation. Before that, there was a period in which the Palestinian authority exercised control over that area. So in my view, they were not occupied.

Regardless of the situation – in the process of invading and taking control over these areas – Israel did not exercise police powers, but military powers, as in a military confrontation. The difference is that under police powers, the occupier has overall responsibility and authority to manage the lives of the protected persons under occupation. If we talk about a situation of actual fighting, to assume control, this is not a police function or police powers. These are simply military powers. That means there is no overall responsibility towards the lives of all protected persons. The laws that apply to occupied territories are not triggered until there is actual control. When the Israeli Defense forces moved into Palestinian areas with military force, of course the Palestinians had the right to fight back. This is the difference between occupation and non-occupation. During war, each side is entitled to fight. It is lawful to kill the other side combatants. During occupation, the occupier is entitled to protect the occupied population. My interpretation of the situation is that in the last couple of week when the Israeli tanks entered Palestinian areas, it was not a process of police of police power and therefore each side’s combatants were entitled to fight the other side.

We are not talking about whether each side is entitled to use force in the first place. Who was entitled to start a military confrontation? Here, as you well know, the general rule is that neither side is entitled to use forced to start a confrontation. Doing so is unlawful, a crime against peace. Only in self-defense does one have the right to do so. So the question is who had the right to self-defense in this context? The other question regarding the Israeli-Palestinian conflict is whether or not there were any agreements between the two parties that would shed some light on this question. Here there was the Oslo Agreement, which suggested that if the parties had disagreements over the implementation for the Oslo agreement, then they can resort to negotiations and if these fail to agree to third party arbitration. There was no unilateral right to either side to resort to force.

When Israel started the offensive in late March or early April, they were doing it in self-defense in light of the suicide bombings. I do not agree with the position that the Palestinians were occupied and therefore had the right to fight.

Once the fighting starts, the underlying rationale of the laws of war is to insulate civilians from the scourge of war as much as military necessity permits. So there is a balance here. Each side is under the obligation to try and protect civilians as much as possible, but neither side is required to endanger its own soldiers in order to protect the other side’s civilians – something that in enshrined in the Hague Conventions of 1899, which says in the preamble, that "parties are inspired by desire to diminish the evils of war so far as military necessity permits." These norms were defined by army generals who wanted to protect civilians but also wanted to protect their own troops. The law tries to balance these, which suggests for example that if one side does not protect its own civilians, this does not relieve the other side from protecting them. For example, if the Palestinians use their civilians as human shields, this does not relieve the Israeli side from the duty to try to prevent as much Palestinian civilian suffering as possible. But, the real question then is to what extent does the attacking army have to jeopardize its own soldiers in order to protect civilians on the other side?

Here my reading of the law is as follows. The general idea is to try to use force in a way that would as much as possible not harm the civilian population. The attacking army must weigh the consequences of its offensives. For example, in every question regarding targeting, it must ask itself to what extent does it promote its own military goals and to what extent does it threaten the civilian population.

Now let’s apply this to the Jenin refugee camp. When choosing weapons, one has to consider that indiscriminate attacks would be unlawful. You have to choose weapons that enable you as much as possible (and the emphasis is on as much as possible) to target only the military and not civilians. In the case of Jenin, there were a couple of choices in terms of weapons. There was the option of striking from the air, like in Kosovo. There was an option of going door to door. And there was the option of using bulldozers and tanks. Now I would suggest that the first choice, using F-16s to bombard from the air, would be, in this context, out of compliance with the laws of war that mandate the protection of civilians because the collateral damage would have been very great. What the Israeli Defense Forces started to do was the other extreme option, namely going door to door with soldiers. This proved impossible for the army after 23 soldiers were killed, including 13 soldiers in one single event. The army’s assessment was that booby traps and snipers made it too dangerous and ineffective. Therefore, and I’m only going by press accounts, they turned to bulldozers and tanks. And the army claims that they gave advanced notice that they were going to bulldoze those buildings, asking civilians to leave. This seems to me, 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.

Now let me emphasize another thing that I think is important. When do we ask the question about the choice of arms and indiscriminate attacks? Do we ask this after the event when we know the situation? Or do we ask it in advance and consider what the commanders knew at the point they designing their attack? The United Kingdom made a declaration upon ratification of the Additional Protocol of the Geneva Convention in 1998. "The military commanders and other responsible for planning, deciding upon, or executing attacks have to reach decision on the basis of their assessment of information from all sources which is available to them at the relevant time." This makes sense to me. When you apply the laws of war, you cannot assign to them knowledge that army commanders did not have at the time they made their decisions.

In the example of Jenin, again in the basis of what I learned form the media, the process of invading the Jenin camp reflects an awareness of the duty to protect civilians as much as possible. Let me suggest something that I think the media misses and that is that the army does not have an interest in attacking civilians, which only makes them more hostile towards Israel. It’s a mixture of self-interest and respect for morality and the laws of war.

As to your question about whether or not Palestinians who took up arms to fight the Israeli Defense Forces should entitled for POW status or whether or not they could they be prosecuted for acts of war that they claim were in self-defense, that is a difficult one. In order to obtain that privileged status, there are several conditions that must be met. They are spelled out in the Fourth Geneva Convention – that they must be organized, wear a distinguishing sign, have a command structure and abide by the laws of war. These are the questions that would determine what they are entitled to. The Palestinian fighters do not meet these criteria. Consequently, 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.

Regarding the possibility of holding Arafat or Sharon accountable for war crimes, the laws of war oblige the armies to protect civilians – but there is some gap between this obligation and criminal liability You are obliged to protect civilians and if you do not you breech your obligation, but you become criminally liable only if you willfully attack civilians indiscriminately. There is this demand for intention to prove criminal liability. So in order to bring a case against either side, one would have to prove intent to harm civilians. In the case of the suicide bombers, it is pretty clear there is a case. In the case of the battle of Jenin, I would say no, because I don’t think that the Israeli army was targeting civilians as such. If Israel had used F-16s in an indiscriminate attack, you might have said this is a willful indiscriminate attack, but the choice of more accurate targets and more accurate weapons would suggest that there was no willful intent.

Something else that is not being mentioned is that in international law and the ICC statues it is prohibited to use children as combatants. The ICC statue prohibits the use of children under the age of 15 in combat. Some Israeli soldiers have said that Palestinian children as young as six years old were carrying bombs and other explosives in the streets of Jenin. On April 23 three 14-year-old kids were killed as they were trying to infiltrate Israeli settlements in the Gaza strip. This is a clear violation of the ICC statue, Article 8.

As for the allegations that Israeli Defense Forces were targeting ambulances, according to the Hague Regulations: "All necessary steps should be taken to spare, as far as possible, all edifices devoted to religion, art, science, charity, hospitals and places where the sick and wounded are collected, provided they are not used at the same time for military purposes." This is the idea that ambulances and hospitals are immune from attack, but once it’s proven that this immunity is abused, there is no more immunity. In the case of ambulances, there were a couple of instances in which the Palestinians used ambulances to move fighters and weapons. This does not suggest that ambulances are not immune and are free to attack. But it does suggest that there is a presumption that they can be used by the Palestinians to move people and weapons and therefore they can be stopped and searched.

Shooting at an ambulance is a more difficult question. If the army demands that all ambulances stop at check points to be searched, and an ambulance does not stop, then it is like any other vehicle. But if there is no warning, then just to shoot at an ambulance would be indiscriminate.