Crimes of War

May 8, 2002

Charles Shamas,
Senior Partner, Mattin Group

What we have now is an escalation of an old doctrine. Israel has consistently blurred the lines between civilians and their entitlement to protection, and those that are considered to be legitimate objectives of the use of force. It has blurred the lines between policing and war-making. All of this is in my view is largely a result of the fact that Israel is one of those rare cases where a state has embraced fundamental political objectives that cannot be implemented and are inseparable from practices and policies that humanitarian law prohibits, namely political objectives that require the displacement of civilians and consequential subjugation and repression of any peaceful or violent attempts on their part to assert or defend their rights. So it starts out as a problem of the use of force and the use of military instruments to achieve an objective that must be achieved at the expense of the civilian population, in violation of its protected rights, and against the civilian population’s will.

On the question of proportionality of force, there are two issues. The first is proportionality in policing. This is the repression of unlawful activities by individuals and groups of individuals with private aims and purposes, including the defense of individual rights, however wrong the manner in which they defend them may be. That is policing. Then there is proportionality of force in war. In making war, the concept of proportionality is based on a very different doctrine of necessity and military necessity than what would apply to the use of force against civilians engaged in unlawful acts or threatening security of the occupying power’s forces in a normal situation of occupation.

The policing code normally applies in a situation where a power exercises effective control over territory and population. Their control is not being challenged. They can immediately repel any challenge to their control as any state can defend its own territorial sovereignty, except if they are an occupier, which means they don’t have sovereignty and they can’t exercise the rights of a sovereign state in that territory and in that population. But they must, in that temporary situation of occupation, until it is speedily resolved, then apply the policing code to the manner in which they control and enforce law, and maintain their security against actions taken against them or against the law or against other civilians by individuals. In other words, they have to treat the problem as criminality. They should apply the criminal law of the country that was in place at the time of the occupation and they may make very carefully and well-justified amendments to it, but no amendments that would harm or weaken the rights of the protected persons. So operating within those limits, every state makes it illegal to shoot at policemen or armed forces, as it makes it illegal for them to rob banks and homes. So they have to operate as police.

Q: So are you saying that Palestinian gunmen who shoot at Israeli soldiers, or suicide bombers who blow themselves up in civilian populated areas should be treated as criminals under Israel’s criminal code?

And it might extend to organized crime. But it also could, and one cannot dismiss the possibility, it could also be actions taken by organized forces under command, engaging in either tactical harassment, in the case of gunmen firing at Israeli forces. In the case of all force, violent actions, uses of force against civilians, it’s criminal. If they are operating as a force under command, then you can say you’re dealing with a competent force – and apply the Third Geneva Convention. Of course, all of the provisions of international humanitarian law that apply to internal conflicts do not apply in this case.

There are the additional protocols (to which Israel is not a party). They are special provisions that expand the definition of competence somewhat. But when one is a state army under the command of a minister of defense and under the command of a political government of an internationally recognized state, then it is very difficult to say that the other side can be treated as a military force.

The ICRC has been puzzling over this. They have determined that there is no combatant force on the Palestinian side, but, at specific moments, they said, when armed persons are in an organized fashion, engaging the Israeli Army, then there is combat. But the minute the Palestinians stop shooting, they are no longer combatants. They may not then be fired upon or killed, except when they are engaged in active hostilities. I disagree with them and I think they are reconsidering their position now. I say it’s better not to flip flop and put people into surreal categories because then the whole issue gives the occupying power, if they want to cheat on humanitarian law, much more latitude to say that all we disagree about is when the combatant status begins and when it ends.

I would say that it is in the interest of the general population that they not be treated as combatants because then this opens the door to changing the doctrine of military necessity and the rules of the use of force which would apply to the Israeli Army. It opens up a Pandora’s box of massive loss of protection and rights of protection of the civilian population. For example, if the regulations governing armed conflict apply, then you can say that collateral damage caused to civilians is not the responsibility of the occupying power, which is what Israel is trying to say.

Israel has been trying to apply some of the regulations governing with land war, but at the same time not recognizing the Palestinians as combatants so that they are not given the balancing principles, which means prisoner of war rights. At other times, Israel says they are civilians, so the Israelis are free to criminalize the Palestinians’ action and arrest and imprison them for their actions, which they can’t do if they are combatants or have immunity from punishment for engaging in combat. But Israel doesn’t have to apply the policing code, and goes after the Palestinians as if it were waging war.

So basically, the Israelis take the expanded margins from the theory of armed conflict but not the obligations or the rights that arise from that same theory. The same goes for the enforcement of criminal law. They take the right to try and convict and punish, but they don’t adhere to their obligation to apply the police code in seeking to capture and try the person.

Q: would the ICRC classify the gunmen inside the refugee camp in jenin as combatants?

I think they would be inclined to say that. If the situation is such that there is a sustained, organized and extensive resistance to the exercise of territorial control by the Occupying Power, then you could say that you have land warfare going on. But the minute it isn’t happening, it isn’t happening.

My position arises from a very basic principle in the law, which is that jurisprudence must be carried out in a manner that in cases of reasonable doubt, when you can’t definitely determine something, the doubt must be resolved in the manner that is least prejudicial to the rights of the right-holders. From that point on, you say, ok, there is reasonable doubt as to whether or not certain situations should be treated as if there was active armed conflict going on between armed forces, or criminal activity. It doesn’t matter if the activity is legitimate or illegitimate. The activity could be defined as criminal under a criminal code that is accepted by all. It’s just two categories in law that are non-judgmental.

If there is reasonable doubt you have to ask what are the consequences to the welfare of the innocent civilian population. Because whether it’s police code or armed conflict, those who are firing at Israeli forces can be fired on and killed. However, treating it as an armed conflict opens the door to much broader tactical latitude on the part of Israel, in terms of the nature and quality of the harm that it may cause to innocent civilians. And if, at the same time, one is able to redefine the concept of proportionality and military necessity, so that any measure one takes that contributes to obtaining the submission of one’s adversary is acceptable, as long as it’s proportional, then it gives one far greater latitude to cause harm to the greater civilian population. That’s called, as you know from Iraq, collateral damage. So then collateral damage becomes acceptable and the belligerent force is relieved of liability for it.

The wrong determination makes it extremely difficult for anybody to enforce and argue and base any enforcement action to bring Israel into greater compliance. It breaks the defense, because it’s a debatable issue about how much collateral damage is reasonable or justifiable by military necessity. If the Israelis are responsible for any harm they cause civilians, then you can hold them to that and it is not an issue of relative judgment. Basically, you can’t say we disagree, you can say the Israelis are defying the law. Proportionality is a very, very tricky thing.

There is reasonable doubt as to whether or not this is an armed conflict, but I would have to assume the argument that is least prejudicial to the rights of the protected persons – unless reasonable doubt is removed. I would say that when you get a situation that goes on for days, and involves many people, and they are acting under orders and they are organized and they are resisting the exercise of territorial control by the occupying forces, then I have to say that at that moment, there is probably armed conflict. But now apply that to Jenin, and I would say probably you are having more analogous to an armed civilian population that is not that organized or under command – they are improvising a territorial defense. An occupying power is entering the territory before it has established legal control. So even in that circumstance, I question whether or not it is an armed conflict.

But my overwhelming consideration is that as long as there is reasonable doubt, I will not call it, and it should not be treated as an armed conflict when the consequences to the general population of protected persons is so pejorative.

Taking one decision or another decision does not affect the occupying power’s capacity to overwhelm whatever resistance is being individually or organized rendered against it. All it affects is its level of responsibility to the innocent civilian population and for that reason, there is no countervailing consideration unless the occupying power’s military and political objective is really to cause harm to the civilian population. And if that’s the case, then it has a strong interest and that’s the only reason that it would have a strong interest, in trying to claim that it is engaged in an armed conflict and get others to go along with it. It gains nothing in terms of its ability to repress and even deal with lethal force against those who are resisting it.

Q: Do you think this is the case?

Of course. This is the sad fact. The fundamental parameters of the Palestinian-Israeli conflict are that there have been political objectives that could not be separated from the forcible dislocation of civilian communities and then the repression of any attempts by those civilians to exercise the rights that have been violated. It’s a rare situation. Humanitarian law usually says I don’t want to look at why the parties are making war. It’s not relevant. Whatever the legality or illegality is for making war, it’s none of my business. I just look at what they do when they start making war.

Now, it did not take account of special situation in which states go to war for purposes that themselves are irreconcilable with the principles of international law. Because the objective of the war is to cause harm to a civilian population where the political objective of the state is indistinguishable from that which causes harm to the civilian population. Then we thought, ok, how do we deal with a state whose policy is inseparable from violations of international humanitarian law? The state’s policies are to cause what is harmful to a civilian population. An example of that was apartheid in South Africa. In that instance, South Africa was considered to be a rogue state. The world said that it did not have a right to pursue and maintain its policy. The other case is genocide. When states use military force to achieve objectives – forcible dislocation of, and effective destruction of, people of communities – that is a crime against humanity. We can no longer imagine that they can pursue their political objective without violating international law.

Israel has always said that it can’t reconcile what it needs to do with the rules of humanitarian law. Israel says they have the right to do what they need to do (remove people from their land and repress their ability to reassert their right to it), and others give Israel scope to do it. They condemn it but they also accept it. Their argument seems to be: "Since I have in my own mind, a national imperative that requires me to do this, and I can’t do it without violating humanitarian law, then humanitarian law can’t be applicable to my situation." Israel’s very objective is the dispossession of another people’s habitat.

The Israelis claim that they have a right to settle. We – the Palestinians – are not telling them to be clean about the way they prosecute their policies. We are telling them that they don’t have the right to prosecute their policies, period.

Q: Can you envision a situation in which Arafat could be held legally responsible for the deeds of suicide bombers?

Absolutely. It’s a question of evidence. If he is behind them, he is engaged either in crimes against humanity or murder.