Q and A on rules of war

Ex-Foreign Ministry legal adviser says Israel is entitled to destroy the enemy's military capabilities.

By JPOST.COM STAFF
January 15, 2009 23:20
3 minute read.
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survey_gaza_media_war. (photo credit: )

Dr. Robbie Sabel is a lecturer in international law at the Hebrew University and former legal adviser to the Foreign Ministry. Israel has been accused of violating the laws of war during the Gaza fighting. What are these laws, and is the accusation true? Israel, during the fighting in Gaza, has taken greater steps than any other army in recent history to try and prevent enemy civilian casualties. The laws of war were formulated when armies in uniforms were battling other armies in uniform, usually in open fields. We are now facing an enemy often dressed as civilians, hiding among civilian buildings and aiming its fire deliberately and cold-bloodedly at Israeli civilian targets. The classic laws of war can provide only general principles as to how to combat such an enemy. These principles include the rule that an army should only target combatants and military objectives; if there are civilians close to military targets, efforts must be made to minimize civilian casualties; and the civilian casualties may not be disproportionate to the military advantage to be gained. Israel has strictly applied these rules, and the Israeli army is one of the few armies in the world to have legal advisers in battle command centers, posted there to ensure compliance with these rules. Israel has repeatedly warned civilians of impending attacks, allowing them time to flee, even though we have thus lost the element of surprise and no doubt also given the enemy combatants the opportunity to flee. Israel has been accused of using disproportionate force. Since the fighting began, we have been attacked with some 700 rockets with explosive warheads aimed at civilian towns and villages. I don't know what should be proportionate to that. Furthermore the rules of war do not impose a cricket-game type of equilibrium on the parties to a conflict. In an armed conflict, a party is entitled to use its force to destroy the enemy's armed forces and military capabilities. For example, if the enemy shoots at your troops with a machine gun, you are entitled to reply with tank fire. The UN Security Council authorized the US and allies to defeat Saddam Hussein's army, not just to force it to leave Kuwait. An aggressor state or organization must take into account that it is liable to meet a potential victim state which will use "disproportionate force" to defend itself. Has Israel prevented supplies from reaching the civilian population in Gaza? Classic laws of war in fact permitted total embargoes, as was done during the Second World War. Modern laws prohibit using starvation of civilians as a means of warfare. Israel has taken the unprecedented step of allowing large-scale food and medical supplies from its territory into Gaza while actual fighting continued. Furthermore, Israel applied a unilateral cease-fire of some three hours every day to ensure distribution of such food and medicine. Has Israel used phosphorous shells which are illegal under international law? Like every single army in the world, Israel uses phosphorous shells in flares and smoke shells. They are standard equipment in all NATO armies and in the armies of the Arab states. They are of course dangerous to handle when burning (so, too, are flares in civilian use), but absolutely legal. What are the rules surrounding attacks on mosques, schools and medical teams? A mosque (or church or synagogue) that is used for military purposes, such as storing weapons and ammunition, loses its immunity from attack and becomes a legitimate target. Any other rule would lead to granting an illogical advantage to an enemy hiding his weapons in such a building. Israel has information that a certain hospital has been used for hiding the headquarters staff of Hamas. Nevertheless Israel has refrained from attacking the hospital because of the civilian casualties that would be caused by such an attack. Israel has never attacked a school knowing children were there. Children have, however, been injured, and I believe it is Hamas that should have to answer for the placing of military targets adjacent to the presence of children. Has Israel prevented evacuation of wounded to outside the Gaza Strip? Although Israel in the past has allowed wounded persons from Gaza into Israel, it is of course under no obligation to do so. The Gaza Strip has a border with Egypt, which I believe has allowed wounded persons to enter for treatment. Despite all the legal points you have made, Israel's response is seen by the world as disproportionate I am reminded of the French political cartoon which showed an animal in a cage at a zoo, and the caption under the cartoon was "Be careful: This animal is dangerous. When attacked, it defends itself."


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