Something good might come …

Legal issues… from this?

Imagine a game of football† where instead of a rule book of specific do’s and don’ts many of the rules were relative to the judgement of the competitors and subject to the judgement of 3rd parties with greater, lesser and even no connection to the game. That is today’s state of International Law on the conduct of war.

My original question, Could something good come out of  the current war in Gaza? could be answered narrowly or on a wider scale. Israel has staved off a potentially devastating attack on a Mumbai scale. That has to be good. It was blunted a massive rocket attack. Iron Dome and the other defensive measures work. That has to be good, not just for Israel but for America and the West. Hundreds of terrorists and jihadis are dead and no matter how loudly Hamas proclaims victory that must put a dent in Hamas’s plans for a caliphate – good.

BTW does anyone have some idea why Hamas has avoided identifying with the Islamic State’s declared caliphate in Syria and Iraq? Could we have two competing caliphates, or perhaps three, if Turkey gets into the act?

These benefits from the war are local and temporary, although a delay of years is much more to be desired than one of weeks. Christiane Anapour and Jeremy Bowen are most likely correct about this. Even a blind archer hits the target occasionally.

My question is broader. Could the world become a better place, even indirectly, from this war? It does happen. The Red Cross movement was a response to carnage of the Battle of Solferino.

joker-Falk-DugardThe Red Cross reference allows me to segue into my initial purpose. Originally this article was intended as a response to the Joint Declaration by International Law Experts on Israel’s Gaza Offensive. If you desperately want to read it, Five Minutes for Israel has saved it as Falk’s Fault.

Most have jumped to the list of signatories; seen that it was led by Richard Falk and John Dugard; pointed out that the two men have devoted a good part of their lives to libelling Israel or less charitably were looney-toons and ignored their charges. This is known as an ad hominem attack (attack the man not the message) and Five Minutes for Israel tries not to do that.

They wrote a remarkably incoherent rant for International Law experts, even allowing that the expertise of some who signed was dubious and others may not have known they had signed. This is quite common for documents of this type.

The amazing thing was they completely ignored the most relevant clause of the Geneva Conventions to do so.

Article 28 of the 1949 Geneva Convention IV provides: “The presence of a protected person may not be used to render certain points or areas immune from military operations.

Protection of Civilian Persons in Time of War,
Geneva 12 August 1949

If you read the very long claim you would be excused for thinking the opposite was true.

To put things into better perspective that would be the equivalent of arguing a case on firearms control in the United States and completely ignoring the 2nd Ammendment Right to bear arms.

The impression Falk, Dugard and partners-in-crime give is that the presence of civilians demands an attack be aborted. They are wrong as the law now stands. But as the law now stands these questions of proportionality and distinction are complicated; demand military commanders lawyer-up at all times; require real-time judgements that may be challenged later and have little or no genuine precedent to fall back on. The Hague and Geneva conventions don’t help much.

The rule, as with all laws, is that there are no real rules only interpretations that may or may not be accepted by a court… and that only when a court makes judgement on it.‡

If you want to read a complete analysis of the laws of war and how they apply to Gaza you must check-out Elder of Ziyon’s Israel is not violating international law in Gaza – part 1 & part 2

Is the Law of War adequate for the 21st Century?

A disclaimer here. It is Five Minutes for Israel’s opinion that Israel has not breached the existing rules for war crimes. This post explores the necessity or otherwise of new and revised laws for future conflicts.

The Hague Conventions which codified modern rules for states to kill each other legally are over one hundred years old. The Geneva Conventions which concentrate on prisoners and civilian protected person are over sixty years old. How does International Law, well past pension age, deal with aerial bombardment; attacks on infrastructure; responsibility for protected persons; ‘soldiers’ without uniforms; non state actors and prisoners of war who fall between the combatant-criminal chairs?

In Five Minutes for Israel’s humble opinion,  not very well at all.

If Operation Protective Edge leads to a reassessment of the laws of combat for everyone it will have served the greater and the specific good. If that means Israel has to face a court to defend itself, so long as the court is a fair court (as the United Nations clearly is not) and all parties have to stand before the same bench, so be it.

Richard Kemp speaks in Raanana

Richard Kemp in Raanana

When Col. (ret.) Richard Kemp visited Raanana I had the opportunity of asking the same question. It probably caught him by surprise and I suspect that in a different setting with a different audience he might revise his answer. His response was the laws are adequate but if he had to pick an area of reform it would be the Guantanamo Bay situation for prisoners.

There is an Israeli parallel here. Are Palestinian prisoners in Israeli gaols P.O.W.S. or are they criminals. If prisoners of war where does this leave Israeli Arabs who have committed terrorist offences?

With due respect to the colonel, I feel that laws may well be inadequate. They were created at a time when soldiers wore uniforms; were unceremoniously shot as spies if caught out of their uniforms and to fight in the uniforms of their enemy was an unthinkeable crime. What advice do they have to deal with a Hamas fighter who wears his uniform to jump through flaming hoops, in his ‘suicide’ photograph and suitably masked in propaganda videos; wears a police uniform in his day job and civilian clothes to attack Israelis and visit his wife? What advice do they give about the ‘civilian’ who leaves his weapon in a tunnel, crosses the road and picks up an R.P.G. he has stored for exactly that purpose to continue attacks from another location?

Red Baron

Wars in the air used to be fought by gentlemen

The Hague Conventions of 1899 and 1907 provide most of the specific rules of war but not surprisingly very little about aerial warfare. Planes were not a significant weapon at that stage. Not exactly surprising as the first manned flight only took place in 1903. Special rules for drones not even dreamed of.

I was surprised to discover that there was anything at all. But oddly the 1907 convention contained Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons extending the 1899 convention. Remarkably prophetic this clause expired in 1915 and nothing more was done.

The Nuremberg Trials tacitly agreed that nothing should be done. The Luftwaffe bombed London for 57 consecutive nights; the British Royal Air Force (RAF) and the United States Army Air Forces (USAAF) dropped more than 3,900 tons of high-explosive bombs and incendiary devices on Dresden; the Operation Meetinghouse air raid on Tokyo was later estimated to be the single most destructive bombing raid in history and of course, the atomic bombing of Hiroshima and Nagasaki killed hundreds of thousands of civilians.

These figures dwarf Operation Protective Edge but no one was charged with a war crime. Perhaps it was too much to expect the victors of WWII to prosecute their own but none of the losers were charged for the air war and strategic bombing, either.

The Geneva Conventions also confuse. The Geneva Conventions are almost entirely concerned with protecting the basic, wartime rights of prisoners (civil and military); established protections for the wounded; and established protections for the civilians in and around a war-zone. They do not address warfare proper.

How could the drafters of the conventions have imagined a war in which one force builds  tunnels running for kilometres under houses, schools, hospitals and mosques?

What we are left with is a series of value judgements made under extreme stress and a lawyer in every unit. No wonder there are so many competing charges.

Ahead of the Game

Just heard Dan Meridor, Likud, then Centre Party and then Likud again on television. His idea is that no matter what the UN does Israel should conduct its own inquiry on the legal status of the war and the IDF’s actions. I’m inclined to agree.

Firstly, it states a forceful legal case. It took forty-five years until the Levy Report was written giving a legal justification for Israeli settlement  over the Green Line. Much too long. It’s hard for advocates when Israel doesn’t make its own case.

Secondly, the International Criminal Court doesn’t take jurisdiction when a state is ready and able to investigate itself domestically. This could be the difference between agreeing to arbitration and being dragged before criminal court. The first is by far preferable.

Update

Typically as a slow writer I fell behind events. Israel’s State Comptroller Joseph Shapira plans to investigate IDF actions and the decisions Israeli leaders and politicians made regarding Operation Protective Edge.

The probe will look at all aspects of the conflict, including whether Israel violated international law.

If I had published in time I’d say Shapira was reading Five Minutes for Israel 🙂 .

Extra credit


† Ice Dancing and Synchronised Swimming?
‡ Just as an example, a significant number of constitutional lawyers argued that contrary to the beliefs of the National Rifle Association and millions of Americans the Second Amendment to the Constitution of the United States was limited to the need for a well regulated militia. This logical if minority interpretation was arguable for two hundred and seventeen years until District of Columbia v. Heller, 554 U.S. 570 (2008), ruled that self-defence was a sufficient reason without any connection to raising a militia. That hasn’t stopped the lawyers arguing, of course.

Bundesarchiv, Bild 183-2004-0430-501 / CC-BY-SA [CC-BY-SA-3.0-de (http://creativecommons.org/licenses/by-sa/3.0/de/deed.en)], via Wikimedia Commons

 

About David Guy

B.A./B.C.A. (Communication and Media Arts) University of Wollongong, AUSTRALIA M.A. in Government (Diplomacy and Conflict Studies) Inter Disciplinary Center, Herzliya, ISRAEL Twitter @5MFI
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