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Anthony D’Amato
JURIST Guest Columnist
Anthony D'Amato of Northwestern University School of Law says
that the closest precedent to the Israeli position on the Gaza war
is justification, an international law doctrine that has been a dead
letter since the end of World War II and the adoption of the Fourth
Geneva Convention...
June 15, 2009
I've been invited to a conference
in Israel on a topic of great interest to me: “Hamas, The Gaza War,
and Accountability under International Law.” The conference will be
held at the David Citadel Hotel on June 18, 2009. I will not attend
because it isn't a conference, it's a PowerPoint presentation. Every
speaker on the agenda is an advocate of the Israeli position. There
isn't an independent scholar of international law, much less a
Palestinian, on the list of speakers.
If I had attended and had a chance
to speak, I would say a few words about the closest precedent to the
Israel-Gaza situation: justification. I doubt anyone at the Hotel
would dare to bring it up. Justification for war crimes has been a
dead letter since World War II.
The doctrine of justification in international law applies when one
side commits a war crime in order to deter the continued commission
of war crimes by the other side. During World War II in German-occupied
European countries, if a sniper killed a German soldier on patrol
and the German authorities were unable to identify the shooter,
fifteen or twenty residents in the vicinity would be selected at
random, taken to the town square, and shot. Today that kind of
reprisal would be considered a war crime — Article 33 of the Fourth
Geneva Convention of 1949 flatly prohibits collective punishment and
reprisals against civilians — but back in the 1940's it was not
illegal. The French, British, and U.S. field manuals had
specifically recognized the practice and pointedly refrained from
saying that it is illegal. Moreover, there were no allied protests
of the German execution of hostages throughout the war. Most
tellingly, in the 3000-plus war crimes trials in Europe after the
war, German commanders who gave the orders to kill hostages in the
15 or 20-to-1 ratio were not prosecuted.
However, in the Hostages Case — the trial at Nuremberg of William
List and others — the US Military Tribunal held that the killing of
100 hostages for each German killed lacked proportionality. The
100-to-1 ratio only pertained to a few places including the Balkans.
By comparison, the ratio of Palestinians killed compared to Israelis
in the recent Gaza War was 98-to-1.
Let us look at the Gaza War in light of the concept of justification
as it applied during World War II. For the past seven years the
Hamas political organization in Gaza has been firing rockets into
Sderot and neighboring Israeli communities west of the Negev. The
rockets have zero accuracy even if directed at military targets —
which they are not. The rockets are fashioned from common metal
pipes filled with explosives and propellants. The fuel is made of
fertilizer and sugar. The rockets are built in simple metal shops
and garages. The rockets that descend upon Israel bring unspeakable
terror but not much destruction. As of March 2008 more than 500
people had been wounded by the attacks; miraculously only twelve had
been killed. However, the townspeople have lived in fear of the
rockets, and have confined themselves most of the time to shelters.
The bombardment of undefended towns and villages is one of the
oldest codified war crimes; it was prohibited by the Hague
Convention of 1907.
Imagine for a moment if U.S.
cities and towns near the Canadian and Mexican borders were hit by
similar rockets fired by radical terrorist groups in Canada and
Mexico. Would the United States tolerate such attacks for seven
years? Or even seven days?
Israel's pent-up frustration over
the rocket attacks erupted in a sudden military invasion of Gaza on
December 27, 2008. Insofar as the invasion was a police action to
rid Gaza of rockets, rocket launchers, and rocket factories, there
was no war crime. But at the same time the Israeli Air Force dropped
many hundreds of white phosphorus bombs indiscriminately over the
residential areas of Gaza. I found the televised pictures of the
bombs lighting up the night sky over Gaza to be eerily beautiful,
and I had to check myself to reevaluate what I was seeing: in
reality, these incendiary weapons were setting homes on fire and
burning the skin of countless terrified people. The victims suffered
third-degree burns that doctors reported went inches deeper into the
flesh than ordinary fire. A spokesperson for the Israeli Defense
Forces added insult to injury by flatly denying that phosphorus was
used.
When a sniper killed a German
soldier on patrol, it was clear that the marksman had been aided
actively by his neighbors who assisted and harbored him. The sniper
was also aided passively by other townspeople who did nothing to
stop him. The same can be said of the people of Gaza who have
enabled the rocket launchings by Hamas. The concept of collective
responsibility applies to the civilians in German-occupied towns as
it applies to the civilians of Gaza. Neither group is blameless.
If the two situations are
factually analogous, why did the Fourth Geneva Convention of 1949
outlaw the defense of justification? The change is due to the demise
of the concept “occupied territory.” In the usual meaning of that
term, a territory is occupied as the result of a war of conquest.
But such wars are now illegal: conspiring to start a war of conquest
is a “crime against peace” under the Nuremberg decisions. Thus we
can conclude that the laws of war do not allow belligerent
occupation, and since belligerent occupation is itself illegal it
follows that justification, reprisals, and collective responsibility
no longer apply. (Yet experts may wonder whether this logic
improperly intermingles jus ad bellum with jus in bello.)
In 2005 two major things happened in Israel. The Supreme Court of
Israel declared that the Gaza Strip was territory seized during
warfare, and Israeli settlers and military forces pulled out of
Gaza. So an argument can be made that Gaza was not “occupied
territory” when Israel attacked in December 2008. But a response to
this argument could be that despite disengagement Gaza remains under
Israeli military control. Israel maintains total control over the
air and sea space of Gaza, it controls movement of persons and goods
between the West Bank and Gaza, and controls taxation of Gaza
residents. And here I end with a question: are these Israeli
controls tantamount to occupation?
Anthony D.Amato is Leighton
Professor of Law at Northwestern University, where he teaches
international law and human rights. |
