Israel´s Commitment to Domestic and International Law (JCPA-JERUSALEM CENTER FOR PUBLIC AFFAIRS) Judge Amnon Straschnov - Former IDF Military Advocate General JERUSALEM ISSUE BRIEF Vol. 4, No. 5 10/10/04)
Source: http://www.jcpa.org/brief/brief4-5.htm
JCPA-Jerusalem Center Public Affairs
JCPA-Jerusalem Center Public Affairs Articles-Index-Top
Publishers-Index-Top
All activities performed by Israel during the first intifada as
well as nowadays are based on law. Israel follows the emergency
defense regulations enacted by the British in Mandatory Palestine in
1945. They are similar to those enacted by the British against the
IRA in Northern Ireland.
Israel has established four main principles for implementing the
laws of war in the fight against terrorism: 1) Military necessity -
the obligation to use force only in a situation which yields a direct
military advantage. 2) Distinction between combatants - those who
take part directly in hostilities - and noncombatants. 3) Humanity -
the obligation to refrain from operations which cause unnecessary
suffering. 4) Proportionality - the obligation to ensure that the
action does not target in a manner disproportionate to the military
advantage expected from the attack.
Israel classifies terrorists the same way the Americans classify
terrorists in Afghanistan and Iraq - as unlawful combatants. They do
not have the privilege to be under the umbrella of international law
because they do not adhere to the laws of war. Rather, they have
violated every possible provision of the laws of war. They don´t wear
uniforms or abide by the conditions that entitle them to be POWS.
Once we define terrorists as unlawful combatants, they become
legitimate military targets. It is allowed both legally and morally
to fight and kill them. They want to come and kill us, and there is
no question regarding the evidence. They´ve manifestly and openly
declared their intentions.
We are entitled from a legal point of view, as a total act of
self-defense, to target them. If we can catch them and bring them to
trial, that´s better. But if this is not possible, we should be
allowed to shoot them down.
The Geneva Convention was enacted in 1949 and The Hague
Regulations in 1907. There was no such terrorism at the time, and
there exists no special convention or protocol against terrorism.
There is certainly a need for one.
Legal Differences Between the Last Two Palestinian Uprisings
There is a big difference in the legal problems arising from the
first intifada (1987-1993) and from the second uprising that began in
2000. The first intifada was characterized by civil unrest, by
civilians including women and children throwing stones and making
roadblocks. But it was not terrorism. The most extreme terrorist
activity at that time was Molotov cocktails thrown at soldiers or
civilian vehicles. The problem with applying laws in these situations
is that there are no set laws dealing with these kinds of
occurrences - the laws of war don´t apply and the laws of peace don´t
apply.
At that time we introduced administrative detention, trials, and
deportations, all based on the law and within the framework of the
law. All activities performed by Israel during the first intifada as
well as nowadays are based on law. Israel follows the emergency
defense regulations enacted by the British in 1945. The British
enacted similar defense regulations against the IRA in Northern
Ireland.
The law cannot remain stagnant. It must evolve according to the
situation. For example, before the first uprising, the law regarding
administrative detention (detention without trial) was different.
Administrative detention occurs when information is received based on
wiretapping or from an informer whose identity cannot be revealed in
court due to his need for protection. A person can be put into
administrative detention for six months with a military judge´s
approval and this can be extended after six months only with the
approval of a judge. There is a judicial review by the Supreme Court
of Israel over the administrative detention.
Before the start of the first uprising in 1987, Israel had about 200
administrative detainees. According to the law at that time, the
state was obligated to bring each detainee before a judge within 48
hours for supervision, to check the matter. When the uprising
started, sometimes we had thousands of administrative detainees and
it was impossible to bring them before a judge, and we changed the
law. The new law said it is not obligatory for the state, or the
military government, to bring each detainee before a judge, but that
he has the right to petition to appear before a judge, at any time.
In October 2000 the second intifada broke out, referred to by some as
an “armed conflict short of war.” During the first three years of
this armed conflict, 942 Israeli civilians were killed in terrorist
activities. Coffee shops became scenes of bloodshed. Buses were blown
up. When terrorism is imposed on you, you have to fight it -
diligently, determinately, and unceasingly - not only in Israel but
everywhere in the world. The measures that are taken against
terrorists or the people who send them cannot be compared with the
moderate measures taken during the first uprising, which was a
civilian one.
In the first intifada Israel had control on the ground and it didn´t
use tanks, helicopters, or even armored personnel carriers - only
jeeps. Israel lost control on the ground as part of what people used
to call the peace process and began to gain it back again only two
and a half years ago after the Passover massacre in Netanya and
Operation Defensive Shield. The tension has now been eased by a
combination of control on the ground, the fence, better intelligence,
and better ability to react to this intelligence. All these elements
together build a situation in which the level of terrorism is lower
than in the past. In some areas in which the tension is lower because
of the fence, the rules of engagement are different from other areas
in which there is no fence and the ability of the terrorists to cross
into Israel is easier. Before the first uprising, when times were
quiet, Palestinians worked in Israel, and there was almost no problem
of security, people were not put into administrative detention and
there was no policy of targeted interceptions. Only after terrorism
arose and Israel suffered many casualties did we have to take
measures against it. Israel should not be ashamed or scolded for the
measures it had to take. Compare this to the United States which
holds 600 detainees in Guantanamo, Cuba, because the U.S. Supreme
Court has no jurisdiction over them there. Or compare Israel´s record
to that of France. During the Algerian uprising there were many
atrocities performed by the French army against Algerians, yet there
was not even one court-martial of French troops.
The powers of the military advocate-general in the State of Israel
are different from his counterpart in the United States or England.
He is completely independent and decides whether to court-martial,
not the military commanders. I would prosecute people who deviated
strongly from the rules of engagement, or from common law or from
human rights. To shoot somebody for no good reason would result in a
court-martial.
Principles for Fighting Terrorism
It´s easier to be a democracy in that part of the world where the
United States is located than here in the Middle East, where Israel
is surrounded by countries that have nothing to do with democracy or
human rights. Israel as a democracy has to weigh two main
considerations: first, to fight to eliminate terrorism, and second,
it is our duty under international law, humanitarian law, and the
Geneva Conventions to protect the human rights of the local
Palestinian population, most of whom are innocent.
Israel has established four main principles for fighting against
terrorism. First, there must be a military necessity - The obligation
to use force is only in a situation which yields a direct military
advantage. Second, there needs to be distinction between combatants -
those who take part directly in hostilities - and noncombatants.
Third is the need for humanity - the obligation to refrain from
operations which cause unnecessary suffering. The fourth is
proportionality - the obligation to ensure that the action aimed at
legitimate targets does not affect protected persons, namely
civilians, and that it does not target in a manner disproportionate
to the military advantage expected from the attack. These four
principles should be the basis of Israel´s implementation of the laws
of war.
Unlawful Combatants Are Not Entitled to Treatment as Prisoners of War
What is the legal status of terrorists? Some argue that if they are
combatants, they should have the same rights as combatants, namely
prisoner-of-war (POW) status and access to The Hague Regulations and
the Geneva Conventions governing treatment of POWs. Some say they are
civilians and as civilians cannot be attacked. There isn´t a proper
classification for these terrorists under international law. The
Geneva Convention was enacted in 1949 and The Hague Regulations in
1907. There was no such terrorism at the time or during the Second
World War, and there exists no special convention or protocol against
terrorism. There is certainly a need for one.
Israel classifies terrorists the same way the Americans classify
terrorists in Afghanistan and Iraq - as unlawful combatants. They are
combatants but they do not have the privilege to be under the
umbrella of international law because they do not adhere to the laws
of war. They are not entitled to its protection since they have
violated every possible provision of the laws of war and humanitarian
law. They don´t wear uniforms or abide by the conditions that entitle
them to be POWS.
What measures are we taking against these unlawful combatants? If we
have evidence and manage to bring them into custody, we bring them to
trial before a court of law, a military court.
Targeted Interceptions and the Law
One new measure employed by Israel in the war against terror involves
targeted interceptions, a subject of extensive debate. Once we define
the terrorist as an unlawful combatant, he is a legitimate military
target. It is allowed both legally and morally to fight and kill any
terrorists for their notorious and ruthless terrorist activities, and
we should not deal with them as protected persons. They are unlawful
combatants, they want to come and kill us, and there is no question
regarding the evidence. They´ve manifestly and openly declared their
intentions.
Why should we wait until a terrorist carrying an explosive belt walks
into a coffee shop in Jerusalem, opens his coat, and only when we see
the belt are we allowed to shoot him? We are entitled from a legal
point of view, as a total act of self-defense, to target him and get
him beforehand. If we can catch him and bring him to trial, that´s
better. But if he is surrounded by bodyguards, we should be allowed
to shoot him down.
There are very strict preconditions that apply to the use of targeted
interceptions. These preconditions are known at all levels of the IDF
and the Ministry of Defense, which consult with the military advocate-
general. First, the terrorist or his superior must pose an imminent
threat; it is not permitted to exercise this policy as a punitive
measure but only as a preventive measure. Second, there must be no
viable option to arrest the terrorist. Third, the four principles of
military necessity, distinction, humanity, and proportionality noted
earlier must be adhered to firmly. Only under these circumstances may
we carry out this kind of interception. There was no mistake when
targeting Sheikh Yassin or other known terrorists with blood on their
hands. The only problem with targeted interceptions is when innocent
people in the surrounding area are killed or injured. We keep telling
our soldiers and pilots to keep the idea of proportionality in mind.
The killing of civilians in time of war can happen inadvertently, of
course, but the pilots know how to differentiate, and they have the
right and the discretion not to shoot when there is extensive danger
to the local population.
The Supreme Court of Israel
The Supreme Court of Israel is the pinnacle of human rights in the
State of Israel, as well as in the administered areas. While there is
no precedent in international law, every local inhabitant including
Arabs residing in the administered areas can apply directly to the
Supreme Court of Israel and ask for remedy based on justice. People
can petition the Supreme Court and it has jurisdiction over every
Israeli official.
There are many examples of Supreme Court intervention. During the
Gulf War in 1991, Israel distributed gas masks to every Israeli
citizen but not to the local Arab population of the West Bank and
Gaza. After a petition to the Supreme Court, the court ordered the
army to distribute gas masks to the local population, as well.
We obey, without question, our Supreme Court rulings. In the case of
Israel´s security fence, the Supreme Court of Israel ruled, first of
all, that it is legal to build the fence, and second, that the route
of the fence should be amended. I think that´s the right decision.
The idea of building the fence arose because we wanted to protect
ourselves, not because we wanted to cause misery to the Palestinians.
* * *
Judge Amnon Straschnov, currently president of the Israeli Institute
of Commercial Arbitration, served as the Military Advocate General
(Chief Legal Officer) of the Israel Defense Forces (1986-1991) and as
President of the Military Courts in the West Bank (1982-1984). He
also administered Israel´s military justice system both within
the "green line" and in the administered areas. His many publications
include Justice Under Fire (1994, Hebrew), dealing with the legal
aspects of the first uprising in the administered areas.
Return to Top
MATERIAL REPRODUCED FOR EDUCATIONAL PURPOSES ONLY
