Crimes of War

May 8, 2002

Marco Sassòli,
Professor of International Law at the University of Quebec, Montréal

There is an essential distinction in international law between the laws that govern whether or not one is permitted to use force, and the rules that apply once force is being used. The legality of force – what is called in Latin ius ad bellum – is spelled out in the UN Charter and is essentially a State’s right to self-defense and a people’s right to self determination. A completely different set of rules, which have to be treated separately, is the law applicable to warfare, whether it is legitimate or not. In Latin this is called ius in bello. This in international humanitarian law.

This ius in bello must necessarily apply in the same way to both sides whether their cause is legitimate or not. In each conflict, theoretically, there is one side that is right in ius ad bellum. For instance, if you fight in self-defense, you are in the right and your enemy is the aggressor. But both those fighting in self-defense and the aggressor have to respect the same rules – this is not simply a humanitarian wish, this is laid down in international instruments. It was confirmed in the Nuremberg Trials, where the Germans were allowed to invoke humanitarian law, although they were the aggressors. As a principle it is not controversial. You can imagine that humanitarian law would not work if it were not so because everyone making war is convinced that he is right and the others are wrong. So whether the Palestinians have a right to resistance or whether the Israelis have a right to occupy these territories has no impact on the applicability of humanitarian law. It is applicable to both sides regardless of this question.

Having said that, it does seem that the Palestinians have a pretty good case for the use of force. Generally it is recognized that they have a right to self-determination. But the question is self-determination to where and in what borders? Israel says that it was attacked in 1967 by its Arab neighbors and in its war of self-defense it had to occupy these territories. So then from the point of view of the ius ad bellum, it would be perfectly lawful occupation. The Palestinians say the opposite and they say they have the right to a resistance against the occupation, a right which would only exist under the ius ad bellum. As in all conflicts, which side has the right to use force is controversial. But the Palestinians don’t have a bad case, because either they can fall under the occupation point, or they can fall under the right to self-determination point.

Now, regarding 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. So the Palestinians have the right to resist, but how can they do that? Individual Palestinians have to choose whether they want to remain civilians or join an armed resistance movement and become combatants. As combatants, they may use force. Once they are combatants, the Israelis may kill them. Except if they surrender. If they remain civilians, the Israelis must respect them as such.

To be a combatant, you cannot simply say that you are one. You have to belong to an armed resistance group and that group must belong to a party to the conflict. This presents all kinds of legal difficulties because Israel says Palestine is not a party because it is not a state and that the armed resistance movements – Fatah, Hamas and so on – do not belong to a party in the conflict. Until 1994 that was very controversial. Today I would say even the Israelis have recognized that the Palestinians, though not a state, are something close to it. So ideally the Israelis should recognize that if an armed resistance movement belongs to the Palestinian authority (and they claim that Arafat has control over most Palestinians fighting against Israel) and fulfills all other conditions specified by the Geneva Conventions for resistance movements, the Palestinians in the resistance movement should be treated as combatants.

The conditions of a resistance movement under the Geneva Conventions are specified in Article 4 of the Third Geneva Convention. It says that persons should be considered combatants if they belong to a group that has a command structure, has fixed distinctive signs, carries its weapons openly and conducts operations in accordance with the laws and customs of war. However, you do not lose combatant status because you violate the laws of war. Otherwise the United States would not have had a million German prisoners of war in the Second World War because obviously the German Wehrmacht violated the laws of war. If you violate the laws of war, you may be prosecuted and punished for that, even if you are a combatant.

But to come back to our problem, there is a certain gray zone in which one could say a movement which directly declares as their policy that they want to attack Israeli civilians – like perhaps Islamic Jihad – would not meet the conditions needed for combatant status. Then there are groups like Hezbollah in southern Lebanon. It sometimes respects the rules of war and sometimes does not, so it is not clear whether or not its members would be considered combatants.

If someone is not a combatant, than, contrary to what President Bush says about Guantanamo, he is a civilian. This is absolutely clear under the Fourth Geneva Convention – but obviously a civilian has no right to participate in hostilities. So if a civilian does that, the civilian may be punished for that, normally under national law. He does not enjoy the protection that a combatant has – immunity from prosecution for lawful acts of war. He is an unlawful combatant, and while a civilian participates in hostilities, he loses his protection under humanitarian law for as long as he directly participates. He becomes a legitimate military target and the Israelis may kill him. But once a civilian no longer participates, he is again a civilian. Obviously he may be punished. And under the law of conduct of hostilities, he may not be attacked, but he may be arrested.

Then there is a particular category of combatants. They are civilians participating in a "levee en masse", which is defined in Article 4, letter A paragraph 6 of the Third Geneva Convention. It says that inhabitants of a non-occupied territory, who on the approach of an enemy, spontaneously take up arms to resist the invading forces without having had the time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war, become combatants. But if they become combatants, the Israelis may kill them, until they surrender.

In the case of the Jenin refugee camp this might be the case. The Israelis were not in Jenin for a time, so legally Jenin was not occupied. During this time, the Palestinians were able to organize themselves so they could be either a resistance movement or a levee en masse. They could also be civilians who have taken up arms – which would make them unlawful combatants. A "levee en masse" is however only admitted in an unoccupied territory. Once the Israelis control the place, levee en masse is no longer possible. But organized resistance is.

Whether the Palestinians who fight are civilians or combatants is not important during the fighting because they can be treated the same way by the Israeli soldiers. Their status is only important if they are captured. If they are combatants, they may not be punished, while if they are civilians, they are criminals and may be prosecuted. No matter what they can’t be tortured. While there is some confusion as to the status of some of the groups in the Palestinian territories, Arafat’s police and Fatah have to be considered to constitute an armed resistance group. They have weapons, they have uniforms, and so on. But this means they may be killed during the fighting. So the problem is, as in all fighting, that the Israelis have to distinguish between the civilian and the combatants and this is particularly difficult because the two categories intermingle. Nonetheless, this is not an excuse for attacking both of them indiscriminately.

What happened in the Jenin camp, the deaths of the 13 Israeli soldiers, while it is always a pity when people die, I don’t see how this could be called a violation of humanitarian law because they are soldiers. Perfidy would be if I were to go into the supermarket disguised as a civilian and fire on soldiers. Because then the soldiers, if they had known that I am a combatant, they would have fired first. This puts civilians into danger. To booby trap a house and hope that enemy soldiers fall into the trap and then to make the house explode is not perfidy. It is also not morally less defendable than bombing an enemy army barracks. As long as you are a combatant, you may be killed in war.

So among the Palestinians, everyone must make a choice as to whether or not they are a civilian or a combatant and this choice must be visible. If you intermingle the two, it will become very difficult to respect the civilians in the conduct of hostilities. All I’ve said until now is about fighting. Once the Israelis control a place, then all of these questions have no more importance. Then, except for combatants, all of the normal procedures applicable to criminals apply.

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. Now the fighting is such that the old question about what is a police operation and what is a military operation no longer matters. Very different rules apply to both, but for the present, there is no doubt that this is a military operation. But even in a military operation, when you have to do something aiming at civilians, say searching a house, which is not a military objective, then you have to work according to the normal police standards. Civilians may not be attacked. You cannot apply humanitarian law on conduct of hostilities to that situation. You have to apply human rights law.

As to your questions about the alleged targeting and impeding of ambulances, the ICRC is incredibly cautious – and it is criticized for that. Last year the ICRC head of delegation in Tel Aviv made a remark that the settlements were war crimes. This was not at all appreciated by the Israelis or the United States. The US Congress threatened to cut funds to the ICRC, and the United States pays some 30 percent of the ICRC budget. So the ICRC became incredibly cautious and stopped making public statements – until a week ago when the ICRC issued a statement that they have no more lines of communications with the Israelis. This suggests that the Israelis have something to hide and don’t want to discuss it. The ICRC issued a press release declaring that there were deliberate attacks on ambulances. The ICRC does not say deliberate if it doesn’t have very strong evidence.

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.

Regarding your question on the alleged targeting of journalists – journalists are civilians and therefore it is unlawful to target them. There was also deliberate targeting of ICRC personnel. I don’t imagine that Sharon has said, "Let’s fire on the ICRC," but if there is a general atmosphere among the soldiers to say that everyone is against us and all of these internationals are in favor of the terrorists and all of this rhetoric we hear today in Israel, then obviously that makes it easy for such things to happen. I am not aware of serious steps taken by Israel against such behavior.

Regarding looting whether it exists now, I don’t know, but I would guess that the Israelis take measures against that not for humanitarian reasons but for simple discipline reasons, because looting forces lose their military value. Also, it has been alleged that Israelis forces have destroyed apartments during their searches, which is typical in such situations. It is at least condoned by their commanders. They simply irrupt into the house. When they see that the soldiers are destroying things, the commanders should intervene and they do not. Instead of entering into the house through the door, they blow through the wall. While that may be militarily a good idea, nine times out of ten, it affects civilians. Completely aside from humanitarian considerations, when peaceful people experience something like that in the house of their family, perhaps they are the next candidates for a suicide bombing. So it achieves exactly the opposite result from the one the Israelis would like to produce.

Regarding the possibility of Sharon and Arafat being held accountable for war crimes, as applied now by the International Criminal Tribunal for the former Yugoslavia, they would clearly fall under the war crimes provisions. Israel is a State and Sharon controls its army. The Palestinian Authority is an organized group.

Regarding your question about collateral damage, it is true that under humanitarian law that sole fact that civilians suffer, or even die, during an attack, does not make this attack unlawful if the attack was directed at the military objective and was proportionate to the importance of the military objective and if all precautionary measures were taken to avoid civilian damage. If it happens nevertheless, there is no war crime, no violation of humanitarian law. This depends on what happens on the ground. From what I see on television, it would seem that the Israelis don’t even try to identify a military objective – which is, admittedly, often very difficult in the Ksbah of Nablus.