Is there a realistic chance of changing the laws of war to facilitate the fight against terrorism?
Israel's primary defense in response to the Goldstone Report, which accused it of war crimes and possible crimes against humanity, is that it is impossible to maintain the strict distinction between combatants and civilians in a war against terrorism.
The reason for this, according to the government and its defenders, is that the Hamas terrorists themselves have deliberately blurred that distinction in various ways. For one thing, it is they who single out Israeli civilians as their main targets. For another, they use their own civilian population as shields to protect them against Israel's military response.
As a result of its harsh findings and recommendations, the report has rekindled the call in Israel for the establishment of a new international forum to update the laws of war so that they will directly address terrorist warfare for the first time.
University of Haifa law professor Emmanuel Gross is optimistic that this can be done. He told The Jerusalem Post on Thursday that there is much support for such a change among the countries of Europe and, of course, in the United States, which is involved in warfare against terrorist groups in Iraq and Afghanistan. Even the Arab bloc is no longer unified against change, as terrorism becomes an increasing threat to existing regimes.
According to Gross, one of the main theaters of discussion at this time is in the academic world, where many scholars advocate changing the rules or introducing a new protocol.
International law professor Natan Lerner of the Interdisciplinary Center, Herzliya, also believes that there is a need to change the law but is less optimistic about how imminent such a change might be. He sees no practical movement in that direction at the moment but does not rule out the possibility that some time in the future, change may come about.
But Lerner added that the International Committee of the Red Cross, which has become the "custodian" of the 1949 Geneva Conventions, is a conservative organization that does not readily accept change.
Whatever the truth of Israel's argument that the laws of war were developed to apply to sovereign states and their conventional armies, the argument that the laws must be changed to fight terrorist groups will not help it in the battle for public opinion regarding the Goldstone Report.
Human rights groups such as Amnesty International and Human Rights Watch make it clear that Israel's actions must be judged according to the law as it stands today. They also assert that these laws are adequate.
Donatella Rovera, Amnesty International's researcher on Israel, the West Bank and the Gaza Strip, charged that "on the one hand, Israel claims that it did not violate international law. On the other hand, it claims international law is inadequate to deal with a war against terrorists.
"So which one is it?"
Gross, who strongly believes in the need to change the laws of war, said he was not angry with Judge Richard Goldstone, who headed the Goldstone Commission.
"He was judging the situation in accordance with the existing laws of war," said Gross. However, he faulted Goldstone for not clearly saying that the laws as they stand cannot cope with the type of warfare Israel was confronted with.
The calls emanating from Israel for changing the law may contribute to the international discussion of the issue. But Israel obviously does not have the clout to make it happen or to even take the lead in making it happen.
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