Crimes of War

May 8, 2002

Dr. Curtis Francis Doebbler,
Distinguished Lecturer and International Human Rights Lawyer, Department of Political Science, The American University in Cairo.

The most important question here is how to characterize the use of force in this situation and I think that the first thing you have to understand before you even look at international humanitarian law, which doesn’t even apply to how you characterize the use of force, is that this is a use of internal force by the Israeli government against people within their own territory. The points that arise from that are that first, it is a use of force against a national liberation movement that has been recognized by the UN General Assembly, the Organization for African Unity, the EU, and even the UN Security Council. There is no doubt in anybody’s mind, I’ve never even heard it from the most right-wing Knesset members, as to the Palestinians being a national liberation movement. This implies that they are an organized force fighting against alien domination.

It also implies, although there is not consensus on this, that other states have an obligation to help the Palestinians. UN General Assembly Resolution 2908, which was adopted in 1972 by a vote of 99 to 5, says that states should provide all moral and material assistance to people struggling for their freedom and independence from alien domination. The majority of states that voted for it at that time stated very clearly that it meant that you could provide force to support a national liberation movement that is fighting against alien domination. So, for example, if Egypt decided to send tanks into areas controlled by the Palestinians today to support their struggle against Israel’s aggression, this would not be in violation of international law. The Palestinians, in my view, have been recognized as having the right to use force to fight against alien domination and they have a right to be supported by other countries.

The Israelis argue that this is not the case. They treat the Palestinians as if they are part of their own territory, as if they are Israeli citizens. They say they have essentially annexed the territory, which is not the case under international law because to agree with this point of view would be to recognize the legitimacy of an illegal annexation using force. We did not do it when Iraq invaded Kuwait, we should not do it now.

Another ground for intervention using force might be humanitarian intervention. The only real example of humanitarian intervention we have is Kosovo, where there was no UN resolution or justification of self-defense and numerous heads of state declared that it was humanitarian intervention. They did not claim that they were doing it in self-defense. They said very clearly this is humanitarian intervention. Nobody disputed that rump Yugoslavia had control over Kosovo and that the population therein was within the Yugoslav state. Nonetheless, NATO intervened, and if we are applying international law as law can only be applied, in an equal way to similar situations, you’ll see that in Kosovo there was probably less reason to intervene than there is here. Law depends on consistency. If we lose consistency, we undermine it. At the very least if humanitarian intervention applies to Kosovo, it applies to Palestine.

States could also intervene in the conflict by invoking the Genocide Convention. When the Genocide Convention was drafted, some states believed that the requirement to implement the prohibition of genocide could be done using force. As you know the requirement to prevent genocide says that states have to prevent and punish genocide. What I think is important to understand is that when you are looking at whether or not what is happening in Israel is genocide, you have to remember that you don’t have to have killed the entire population or even large parts of it. What is necessary is the intention to inflict conditions on a national, ethnical, racial or religious group that will destroy it in whole or in part. That can be done in a number of different ways, including deliberately inflicting conditions of life that are calculated to bring about part of its destruction. I think that we are probably close to that situation. In statements that I just collected personally from Knesset members and military commanders I think that there is good evidence that the Israeli government is trying to practice a policy that could very well be classified as genocide. I wouldn’t yet want to say it is – but the actions support a policy that is being expressed – and I think there is evidence of that. States are obligated to prevent genocide and may be entitled to use force to do so.

Finally, I think states could also intervene in the conflict on the grounds that the Israelis are committing acts of state terrorisms and harboring terrorists. When the US went into Afghanistan, the US claimed it was self-defense. But the US also said it was combating terrorism. It was trying to take action against a state that it claimed supported terrorism and harbored terrorists. International humanitarian law defines terrorism as a calculated intent to terrorize the population. The Israelis are arguably terrorizing the Palestinian population. If that is the case, then the government is carrying out an act of terrorism, perhaps to a greater extent than the Afghan government was. Unless the Israelis are punishing the people who are carrying this out, then they are also harboring people who have committed acts of terrorism. If we apply the standards we applied to Afghanistan, I would say that the United States is trying to create international law that allows states to use force against states that harbor terrorists and Israel fits into that category. That would mean that states could use force against Israel to prevent its terrorism and to punish it for harboring terrorists. Any state using force, of course, would have to abide by international humanitarian law, which stresses proportionality and the discriminatory nature of targeting.

Now to come more directly to your questions. The Fourth Geneva Convention applies when there is an armed conflict. There was clearly an armed conflict between Israel and other Arab countries. Israel doesn’t deny that. Where the problem lies is that that armed conflict – at least between some countries – came to an end. Jordan and Egypt signed peace treaties with Israel. Those peace treaties explicitly state that Israel remains in occupation of territory that belongs to those countries regardless of the cessation of hostilities – and this is stated in the Fourth Geneva Convention as well – as long as a belligerent is in a territory that has not been peacefully ceded to them, and that is the case here, the occupation continues and the Fourth Geneva Convention continues to apply. Israel’s argument is that they have, over time, annexed these territories – which is exactly the reason international law prohibited the use of force – to prevent states from acquiring other states’ territory. If we allow that to happen, we break down the most basic structures of international law.

As to your question about Palestinian civilians engaging in combat, there is no question that members of organized militias like Fatah and Hamas are combatants. But when civilians take up arms, as might be the case in the Jenin refugee camp, you may have what’s called "levee en masse" – civilians reacting to immediate situation. In a "levee on masse" situation, fighters get the privileges of both combatants and prisoners of war. Their opponents can’t use disproportionate force and have to use means that are militarily necessary.

Regarding your question about the targeting and impeding of ambulances, 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. If someone is using an ambulance as cover to commit acts of war, they would be violating international humanitarian law. You might be able to eventually punish them for this, but you still cannot attack them.

You cannot take reprisals against civilians and their property. Article 33 in the Fourth Geneva Convention is that you can’t take reprisals collectively against individuals, and that includes measures of intimidation and terrorism. Article 49 prohibits two things that are taking place now. You cannot transfer individuals within occupied territories out of occupied territories. Dozens of people have been reportedly transferred. The last sentence of that article says very clearly that you cannot transfer your own population to that territory. The settlements are a violation of that.

Targeting of journalists also violates international humanitarian law. Journalists are civilians and are protected in the general provisions of the Geneva Conventions.

Regarding your question as to whether or not war crimes cases I would just point out that cases were brought against both Sharon and Arafat in the Belgium courts.