Crimes of War 11

May 8, 2002

Michel Veuthey
Former legal advisor to the ICRC, Adjunct Professor of International Humanitarian Law at Fordham Law School

Whatever the status of the territories and the parties in the Palestinian-Israeli conflict, it doesn’t really matter in terms of international humanitarian law. The Israelis say that Israel is the land of their forefathers and that they are just taking back what belonged to them so many years ago. The Palestinians say they have been there for thousands of years too. Legally, we have a conflict of rights: on one side, the right of Israel as a state to defend itself; on the other side, the right of the Palestinians to self-determination.

We have two legitimacies fighting against each other. If we go to the extreme of each legitimacy, there is a tendency for each to deny the existence of the other. Both the Israelis and the Palestinians are human beings. And both have the right to be respected as human beings – both have the right to be respected as civilians, as prisoners, and to have the fundamental human values applied to both of them. And both people have the right to have their own land and their own state and that would be the only peaceful solution.

Regarding the applicability of international humanitarian law, the Israelis say that the Palestinian territories did not belong to anyone, and that they are administering them until there is a peace settlement. The Palestinians will say, no, that is not right, we have been there for centuries and actually we have so many United Nations resolutions and treaties recognizing our right for self-determination and we should be able to establish a state there.

In 1967 when the Israelis moved into Judea and Samaria, and what I think are occupied territories, the ICRC asked the Israelis to abide by the Fourth Geneva Convention. The Israelis instantly said no. They did not want to do this.

Abiding by the Fourth Geneva Convention would have meant that the Israelis would have had to administer the territory as a steward, not as an owner. They would have had to respect the civil authorities in the territory. They would not be allowed to change the status of the territories, and they would have had to abide by certain provisions such as not transferring any part of the population outside of the territory and not transferring any of their own population into the territory. They would also not have been permitted to inflict any collective punishment against the population. They would have had to take care of the health and economic system of the Palestinians. They could not, for example, take water from the territory for their own needs and deprive the Palestinians of their own water. They could not stop medicines and other supplies for hospitals from entering the territories or hamper the movement of foodstuffs, and so on.

[Editors’ note: Israel maintains that the Fourth Geneva Convention is not applicable, because the territories were not part of a recognized sovereign state at the time of occupation in 1967. Nevertheless it has pledged to observe the humanitarian provisions of the Convention.]

Regarding the current situation, Israel knows the laws of war. The Hague Regulations, and the Geneva Conventions give civilians the right to take up arms against an enemy when they don’t have time to form an organized force. This is called levee en masse. Civilians who participate in a levee on mass are entitled to the privileges of combatants. They are entitled to prisoner of war status. But this has not been the case. Let’s look at 1982, when Israeli invade Lebanon, and Sharon was in charge, the ICRC said the Palestinian combatants are in full uniform, wearing arms openly and respecting the laws of war, so you should grant them full prisoner of war status. Sharon said no. They are part of a terrorist movement. This is the Israeli rationale. But just because groups on the Palestinian side do not respect the laws of war, that does not give the Israelis the right not to respect the laws of war. Whatever the other side does, under international humanitarian law, you do not have the right to exercise reprisals, especially against the civilian population and against prisoners. That is quite clear.

As far as I can see, I must say that the Israelis are using excessive force against the Palestinian population. It’s quite sad. Israeli has so many good human rights lawyers and takes such great pride in being the only democracy in the region, and yet it is not being a law-abiding democracy. As the stronger party, they should show some restraint.

As to your question about holding Sharon or Arafat responsible for war crimes, I must say that when the Belgians were trying to hold Prime Minister Sharon to account for what he did in 1982 in Beirut – through a legal action that was stopped by the International Court of Justice and the Belgian courts – I think they were on the right track. I think we should have the law play its role. The same would apply to Arafat. The same rules apply to everyone. Even if Arafat is fighting a just war and struggling for self-determination, he must abide by the laws of war and if he doesn’t, he should be punished. That, of course, is prosecuting people after the fact. You must also ask the question, could we do something before it is too late? And some people would say yes. Look at Srebrenica, or Kosovo. But I think any kind of military intervention would have to complement holding people accountable after the fact.