Barak asks the right question, but will he get the right answer?
Israel's defense minister Ehud Barak asked the right question from Israel's justice ministry today:Defense Minister Ehud Barak on Sunday asked Justice Minister Daniel Friedmann to examine whether the Israel Defense Forces can legally target populated areas from which Qassam rockets are being fired at the western Negev.There is little doubt that Ramon is correct and Israel does have such an option:
During Sunday's cabinet meeting, Vice Premier Haim Ramon asked why the IDF was not directing massive fire at the areas from which Qassams are being launched.
"According to international law, you can do that," he said. "In the Second Lebanon War it was clear that if they shoot from within a village, we can fire on them even if the area is populated."
Following Ramon's comments, Barak asked Friedmann to examine the issue in order to determine whether the IDF indeed has such an option.
Article 28 of the 4th Geneva Convention of 1949 is simple and clear. It says: "The presence of a protected person may not be used to render certain points or areas immune from military operations." Hezbullah violates this provision daily. [So does Hamas. CiJ] It is due to Hezbullah's violations of this provision that Lebanese civilians are being killed.In an article published on the Wall Street Journal's OpinionJournal.com web page over the weekend, Orde F. Kittrie, a professor of international law at Arizona State University and who served in the Office of the Legal Adviser at the U.S. State Department from 1993 to 2003,summarized the three-part test in determining whether Israeli actions violate the Geneva convention:Note two things. First, Barak is not asking about the proportionality test and Ramon was not discussing it. That's a separate issue. Barak is asking whether Israel is allowed to target civilian areas from which rockets are being fired. Firing rockets from a civilian area would be a violation of the second prohibition cited above by the 'Palestinians,' and therefore Israel ought to be able to target those areas. And we all know that's been happening.International law has three major prohibitions .... One forbids deliberate attacks on civilians. Another prohibits hiding forces in civilian areas, thereby turning civilians into "human shields." A third prohibition, the proportionality restriction that Israel is accused of violating, involves a complicated and controversial balancing test.
As to the proportionality test (which both the UN and the EU have already accused us of violating), I have argued many times, that there is no choice but to respond disproportionately to rockets being shot from Gaza. The following is from a Bret Stephens piece in the Wall Street Journal this past Wednesday:
The standard answer is that Israel's response to the Kassams ought to be "proportionate." What does that mean? Does the "proportion" apply to the intention of those firing the Kassams -- to wit, indiscriminate terror against civilian populations? In that case, a "proportionate" Israeli response would involve, perhaps, firing 2,500 artillery shells at random against civilian targets in Gaza. Or should proportion apply to the effects of the Kassams -- an exquisitely calibrated, eye-for-eye operation involving the killing of a dozen Palestinians and the deliberate maiming or traumatizing of several hundred more?At this point, politics intrudes. Will Barak get the correct answer? That remains to be seen.
Surely this isn't what advocates of proportion have in mind. What they really mean is that Israel ought to respond with moderation. But the criteria for moderation are subjective. Should Israel pick off Hamas leaders who are ordering the rocket attacks? The European Parliament last week passed a resolution denouncing the practice of targeted assassinations. Should Israel adopt purely economic measures to punish Hamas for the Kassams? The same resolution denounced what it called Israel's "collective punishment" of Palestinians. Should Israel seek to dismantle the Kassams through limited military incursions? This, too, has the unpardonable effect of resulting in too many Palestinian casualties, which are said to be "disproportionate" to the number of Israelis injured by the Kassams.
By these lights, Israel's presumptive right to self-defense has no practical application as far as Gaza is concerned. Instead, Israel is counseled to allow goods to flow freely into the Strip, and to negotiate a cease-fire with Hamas.
But here another set of considerations intrudes. Hamas was elected democratically and by overwhelming margins in Gaza. It has never once honored a cease-fire with Israel. Following Israel's withdrawal of its soldiers and settlements from the Strip in 2005 there was a six-fold increase in the number of Kassam strikes on Israel.
posted by Carl in Jerusalem @ 5:32 PM
3 Comments:
Carl - international law is NOT a suicide pact. The laws of war are designed to prevent needless suffering to civilians. But they are never intended to prevent bringing about the enemy's destruction. As a lawyer yourself, you surely know that this abstract discussion about legal formalities overlooks the fact people are injured and dying and discussing the fastidious application of the laws of war won't save them. There is a place for law in life but when actors such as Hezbollah and Hamas take advantage of it to compromise life in Israel, the law detracts from its own purpose. We all know what the right answer is. Even the laws of the Torah at some point, have to be suspended to save human life. If that is the overriding value, then in the situation Israel is being faced with, international law is for the moment completely inapplicable if the aim is to save lives not only on Israel but on the other side as well. A misplaced sense of concern for the enemy will place more civilians in jeopardy and delay the securing of true peace.
NormanF,
You're right but you don't even have to go that far. Under the Geneva Convention, you're allowed to target combatants (including terrorists) who are hiding among a civilian population.
There is even a clue in the decision of Israel's High court on the target killings:
http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM
"36. What is the law regarding civilians serving as a "human shield" for terrorists taking a direct part in the hostilities? Certainly, if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities (see Schmitt, at p. 521 and Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 CHICAGO JOURNAL OF INTERNATIONAL LAW 511, 541 (2004))
(...)
45. The proportionality test determines that attack upon innocent civilians is not permitted if the collateral damage caused to them is not proportionate to the military advantage (in protecting combatants and civilians). In other words, attack is proportionate if the benefit stemming from the attainment of the proper military objective is proportionate to the damage caused to innocent civilians harmed by it. That is a values based test. It is based upon a balancing between conflicting values and interests (see Beit Sourik, at p. 850; HCJ 7052/03 Adalah – The Legal Center Arab Minority Rights in Israel (unpublished, paragraph 74 of my judgment, hereinafter Adalah). It is accepted in the national law of various countries. It constitutes a central normative test for examining the activity of the government in general, and of the military specifically, in Israel. In one case I stated:
"Basically, this subtest carries on its shoulders the constitutional view that the ends do not justify the means. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy" (HCJ 8276/05 Adalah - The Legal Center for Arab Minority Rights in Israel v. The Minister of Defense (unpublished, paragraph 30 of my judgment; see also ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 66 (2002)).
As we have seen, this requirement of proportionality is employed in customary international law regarding protection of civilians (see CASSESE, at p. 418; Kretzmer, at p. 200; Ben-Naftali & Michaeli, at p. 278; see also Gardam; as well as §51(2)(III) of The First Protocol, which constitutes customary law). When the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.
46. That aspect of proportionality is not required regarding harm to a combatant, or to a civilian taking a direct part in the hostilities at such time as the harm is caused. Indeed, a civilian taking part in hostilities is endangering his life, and he might – like a combatant – be the objective of a fatal attack. That killing is permitted. However, that proportionality is required in any case in which an innocent civilian is harmed. Thus, the requirements of proportionality stricto senso must be fulfilled in a case in which the harm to the terrorist carries with it collateral damage caused to nearby innocent civilians. The proportionality rule applies in regards to harm to those innocent civilians (see § 51(5)(b) of The First Protocol). The rule is that combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage in harming the combatants and terrorists (see HENCKAERTS & DOSWALD-BECK, at p. 49). Performing that balance is difficult. Here as well, one must proceed case by case, while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed (compare DINSTEIN, at p. 123; GROSS, at p. 621). The hard cases are those which are in the space between the extreme examples. There, a meticulous examination of every case is required; it is required that the military advantage be direct and anticipated (see §57(2)(iii) of The First Protocol). Indeed, in international law, as in internal law, the ends do not justify the means. The state's power is not unlimited. Not all of the means are permitted. The Inter-American Court of Human Rights pointed that out, stating:
"[R]egardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the state is not unlimited, nor may the state resort to any means to attain its ends" (Velasquez Rodriguez v. Honduras, I/A Court H.R. (Ser. C.), No 4, 1, para. 154 (1988)).
However, when hostilities occur, losses are caused. The state's duty to protect the lives of its soldiers and civilians must be balanced against its duty to protect the lives of innocent civilians harmed during attacks on terrorists. That balancing is difficult when it regards human life. It raises moral and ethical problems (see Asa Kasher & Amos Yadlin, Assassination and Preventative Killing, 25 SAIS REVIEW 41 (2005). Despite the difficulty of that balancing, there's no choice but to perform it."
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