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Saturday, January 3, 2009

Are Israeli Actions Legal?

International Law and the Law of Armed Conflict do not provide easy answers to questions of if to go to war and how to act in war. Sure, it looks straight forward, but it is not. As Clausewitz says,
Everything in war is simple, but the simplest thing is difficult. The difficulties accumulate and end by producing a kind of friction that is inconceivable unless one has experienced war....
On War, page 132 (Michael Howard / Peter Paret Translation)
Here is a post by Eric Posner, Kirkland and Ellis Professor of Law at the University of Chicago Law School. That is to say, an expert and to be respected, notwithstanding being a graduate of Yale College and Harvard Law School.

My recommendation is to ignore the comments, which quickly degenerate into a question of if international agencies are fair to Israel and seems to be heading toward fulfilling Godwin's Law. (NB: Jus ad bellum talks to if the war itself is justifiable, and thus legal and Jus in bellow talks to if one is conducting the war lawfully; are you doing the actual fighting in accordance with international law.)

The three big points he makes, and then elaborates on, are:
  1. Jus ad bellum. Gaza is not a state. It’s not clear what it is—occupied territory? Mandate? If it’s not a state, the UN charter does not forbid an attack. Even if it were, the UN charter would not forbid an attack as long as Israel’s attack is in self-defense—which it appears to be, so far.

  2. Jus in bello. Can there be a war between a state and a non-state entity? Yes! And most people think the regular laws of war apply. The laws of war forbid the deliberate killing of civilians, but so far no one has proved that Israel has deliberately killed civilians. That leaves the proportionality rule, which bars an attack that causes civilian casualties (or property damage) that are “disproportionate” to the attack. Unfortunately, no one knows what proportionality means. Can you drop a bomb on a Hamas leader that might or will kill a nearby civilian? Two civilians? Ten? A thousand? Does it matter how important the leader is? Whether he has taken refuge in a densely packed area? There are no settled answers to these questions.

  3. Human rights. Ideally, the Israelis enter Gaza and arrest the rocket shooters and their leaders, try them, and convict them if they are guilty. In practice, this is impossible. Human rights law does not prohibit the use of violence when ordinary law enforcement practices are inadequate.
These are important issues and worthy of discussion. However, they are important enough that we need to gather up all the facts and proceed forth after we have done so.

Posts like the one linked to help us to conduct useful discussions. You may ask, why do we care? I think we care for a number of reasons, but one of the more pragmatic reasons is that we are the major supplier and supporter of Israel.

Regards -- Cliff

PS If you are looking for my personal opinion, leave a comment and I will write it up. This post is about opening the discussion on a sound basis.

2 comments:

Craig H said...

It is hard to deny current photographs showing phosphorous-based incendiary weapons being used over Gaza, (let alone the obvious evidence presented by horribly burned civilians showing up at what's left of the local health care infrastructure), though the Israelis insist everything is being done according to international law. However, I would say that Israeli actions certainly seem to conflict with "The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects Protocol III: Incendiary Weapons", which restrict use in cases where "the civilian population as such, individual civilians or civilian objects, [is] the object of attack".

Pulling on semantics to suggest that militants embedded within civilian populations somehow relieve attackers from observing this regulation is much like saying something like "I did not have sex with that woman". My preference would be to see those ordering such attacks brought up on charges in The Hague, along with those US commanders who approved the use of such weapons around Fallujah in 2004.

I would say, if we wish to pursue a doctrine of pre-emption with our adversaries, we cannot speak out of both sides of our mouths and allow ourselves or our allies to bomb civilians with incendiary weapons. It's not only not right, it's an impossible hypocrisy to reconcile with our diplomatic objectives. It would seem that one or the other will have to give.

C R Krieger said...

I saw the picture of what looked to me like White Phosphorous (Willy Pete in Viet-nam parlance). I wasn't sure what the purpose was, in that it was in the air and not on the ground. I suspect it was about generating smoke for some purpose.

I do think that we should not contravene treaties we have agreed to. I am looking for more information on this picture.

Regards -- Cliff