Changing the Rules of War
By George Bisharat
San Francisco Chronicle
Wednesday, April 1, 2009
The extent of Israel's brutality against Palestinian civilians in its
22-day pounding of the Gaza Strip is gradually surfacing. Israeli
soldiers are testifying to lax rules of engagement tantamount to a
license to kill. One soldier commented: "That's what is so nice,
supposedly, about Gaza: You see a person on a road, walking along a
path. He doesn't have to be with a weapon, you don't have to identify
him with anything and you can just shoot him."
What is less appreciated is how Israel is also brutalizing international
law, in ways that may long outlast the demolition of Gaza.
Since 2001, Israeli military lawyers have pushed to re-classify military
operations in the West Bank and Gaza Strip from the law enforcement
model mandated by the law of occupation to one of armed conflict. Under
the former, soldiers of an occupying army must arrest, rather than kill,
opponents, and generally must use the minimum force necessary to quell
disturbances.
While in armed conflict, a military is still constrained by the laws of
war - including the duty to distinguish between combatants and
civilians, and the duty to avoid attacks causing disproportionate harm
to civilian persons or objects - the standard permits far greater uses
of force.
Israel pressed the shift to justify its assassinations of Palestinians
in the Occupied Territories, which clearly violated settled
international law. Israel had practiced "targeted killings" since the
1970s - always denying that it did so - but had recently stepped up
their frequency, by spectacular means (such as air strikes) that
rendered denial futile.
President Bill Clinton charged the 2001 Mitchell Committee with
investigating the causes of the second Palestinian uprising and
recommending how to restore calm in the region. Israeli lawyers pleaded
their case to the committee for armed conflict. The committee responded
by criticizing the blanket application of the model to the uprising, but
did not repudiate it altogether.
Today, most observers - including Amnesty International - tacitly accept
Israel's framing of the conflict in Gaza as an armed conflict, as their
criticism of Israel's actions in terms of the duties of distinction and
the principle of proportionality betrays. This shift, if accepted, would
encourage occupiers to follow Israel's lead, externalizing military
control while shedding all responsibilities to occupied populations.
Israel's campaign to rewrite international law to its advantage is
deliberate and knowing. As the former head of Israel's 20-lawyer
International Law Division in the Military Advocate General's office,
Daniel Reisner, recently stated: "If you do something for long enough,
the world will accept it. The whole of international law is now based on
the notion that an act that is forbidden today becomes permissible if
executed by enough countries ... International law progresses through
violations. We invented the targeted assassination thesis and we had to
push it. At first there were protrusions that made it hard to insert
easily into the legal molds. Eight years later, it is in the center of
the bounds of legitimacy."
In the Gaza fighting, Israel has again tried to transform international
law through violations. For example, its military lawyers authorized the
bombing of a police cadet graduation ceremony, killing at least 63 young
Palestinian men. Under international law, such deliberate killings of
civilian police are war crimes. Yet Israel treats all employees of the
Hamas-led government in the Gaza Strip as terrorists, and thus
combatants. Secretaries, court clerks, housing officials, judges - all
were, in Israeli eyes, legitimate targets for liquidation.
Israeli jurists also instructed military commanders that any Palestinian
who failed to evacuate a building or area after warnings of an impending
bombardment was a "voluntary human shield" and thus a participant in
combat, subject to lawful attack. One method of warning employed by
Israeli gunners, dubbed "knocking on the roof," was to fire first at a
building's corner, then, a few minutes later, to strike more
structurally vulnerable points. To imagine that Gazan civilians - penned
into the tiny Gaza Strip by Israeli troops, and surrounded by the chaos
of battle - understood this signal is fanciful at best.
Israel has a lengthy history of unpunished abuses of international law -
among the most flagrant its decades-long colonization of the West Bank.
To its credit, much of the world has refused to ratify Israel's
violations. Unfortunately, our government is an exception, having
frequently provided diplomatic cover for Israel's abuses. Our diplomats
have vetoed 42 U.N. Security Council resolutions to shelter Israel from
the consequences of its often illegal behavior.
We must break that habit now, or see international law perverted in ways
that can harm us all. Our government has already been seduced to follow,
in Afghanistan and elsewhere, Israel's example of targeted killings.
This policy alienates civilians, innocently killed and wounded in these
crude strikes, and deepens the determination of enemies to harm us by
any means possible.
We do not want civilian police in the United States to be bombed, nor to
have anyone "knock on our roofs." For our own sakes and for the world's,
Israel's impunity must end.
George Bisharat is a professor of law at Hastings College of the Law in
San Francisco, and writes frequently on law and politics in the Middle
East.
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