It was just another Facebook post by a Palestine-friendly blogger, wondering whether any of her FB friends could comment on a Tweet she’d received regarding Article 19 of the 4th Geneva Convention — a tiny provision that appears to sanction the bombing of hospitals that have been commandeered by enemy combatants. “Article 19 starts on page 54,” a FB friend quickly piped up, providing this link to the 4th Geneva Convention.
Now, I’m not a lawyer — international or otherwise — but I imagine that in law, law of any sort, the devil is in the details. Which is to say you can easily get away with a crime you’ve committed if a trivial-sounding loophole can be found, and you’ve got a good lawyer. On the other hand, a tiny loophole in a lengthy legal statute doesn’t necessarily mean you can’t or won’t land in the slammer for another bunch of related crimes, if the prosecution is on its toes.
In Israel’s case, the list of international crimes allegedly committed is lengthy: “crimes of occupation” and “oppression,” “crimes of Apartheid,” “collective punishment,” and acts of war deemed criminal under international law — like bombing hospitals and schools, UN-run shelters, and food production, power generation and sewage treatment facilities.
So, does Israel need to hire a pack of high-priced lawyers to defend it in The Hague when the inevitable trial begins? Israel probably already has, in preparation for a bout of “delegitimization” Washington will do everything in its power to block or delay. Most US Senators and Congressmen are lawyers, and would likely argue Israel’s case before the ICC with verve and passion.
I recently spoke with two European and one South African jurists on the following topics: 1. Israel’s putative right of “self-defense” against Gaza militants; 2. the idea of a Palestinian right to “resist” occupation; 3. the “Israeli Apartheid” notion; 4. Israel’s alleged meting out of “collective punishment”; 5. Hamas as a negotiating party; 6. BDS; 7. Israel, Hamas and the ICC, and 8. the fate of international law. Click on the link to hear voices. Some choice quotes:
Brussels University Professor Emeritus Eric David, on Israel’s putative right of self-defense against Gaza militants:
“Of course, when a state is attacked, no problem. The state has, of course, a right of self-defense. But in this particular case the problem is much more subtle and complex. Why? Because, in fact, since 1967, as you know, since Security Council Resolution 242, Israel is obliged — is legally obliged — to leave the Palestinian Occupied Territories … and as you know this resolution is compulsory; it’s binding. States are obliged to respect the resolutions of the Security Council, according to Article 25 of the UN Charter, and Israel never did that … And [so], if there is a kind of self-defense which can be invoked it is chiefly the Palestinians who can invoke this right, and not Israel, because Israel does not respect these resolutions … It is quite clear that if someone is attacked today, it’s mainly the Palestinians.”
Dutch criminal lawyer Phon Van Den Biesen:
“I think what we have been seeing over the years — but especially over the last couple of weeks … I do not have much doubt that both parties are violating the laws of warfare, and are violating the rules of international law with respect to warfare. So, that would be true for the leaders of Hamas, as well as for the leaders in Israel. Israel obviously has the right to defend itself against armed assaults, but a right to self-defense is not unlimited; the right to self-defense is itself restricted by rules of international law. And one is not allowed to target civilian objects. And even if it is true that Hamas would be making it hard to make a difference between military and civilian targets — which if that is true is something that implies also a violation by Hamas of international law, because in warfare you’re not supposed to use a hospital as a basis for launching missiles — but even so there is a need for proportionality in international law; there is a need to at all times make a difference between civilian and military targets. But on the ground the facts show that Israel is involved in a wholesale targeting of civilian objects. And that is clearly a violation of humanitarian law. And targeting power plants, water reservoirs, water facilities, etcetera certainly is targeting civilian objects, and is certainly a violation of the laws of warfare.”
“Don’t forget that Israel has been committing a permanent war crime; not one, but has been committing permanent war crimes by establishing settlements in the Occupied Territories. The Israeli settlements are — and I put quotation marks — a “war crime.” It is not only a war crime according to Article 8, Paragraph 2(b) … of the statute of the ICC, or according to Article 85 of the First Additional Protocol of 1977 — protocol additional to the Geneva Conventions of 1949 (these two instruments have never been ratified by Israel); but also according to Article 147 of the 4th Geneva Convention … which criminalizes illegal transfer of population from the occupying power on the territory of the occupied power. A settlement which is made by the occupying power is a crime in international law. It’s an illegal transfer of population. That was made by Germany during the Second World War … That’s been considered as a war crime, and that’s precisely what happens today with Palestine. And thus, because of that situation, it’s quite clear that the Palestinians … find a legal justification to defend themselves, because the United Nations are not coherent with their own resolutions. Because on the one hand they ask — not ask — they order Israel to withdraw from the occupied territories, and it doesn’t do!”
The firing of rockets by Hamas into Israel is illegal, Professor David points out; completely forbidden. But rock throwing by Palestinian youth in the West Bank?
“If they throw rocks against the IDF — Israeli Defense Forces — well, it’s a legitimate target. Of course they are allowed to do that. Certainly not only from a jus contra bellum point of view, but also from a jus in bello point of view, because it is true that these occupying troops are a legitimate target in [International Humanitarian Law].”
On the question of whether or not Israel metes out collective punishment, South African jurist and former UN Rapporteur John Dugard has this to say:
“The international community takes a view that Gaza remains occupied territory, to which the 4th Geneva Convention continues to apply. Israel argues that it’s a hostile entity … it regards it as no longer occupied territory. But given the fact that it does remain occupied territory, Israel is subject to the constraints imposed by international law on an occupying power, and I believe that the siege of Gaza, in particular, is unlawful, and also the collective punishment meted out to Gaza is unlawful … Collective punishment, which violates the 4th Geneva Convention, has always been a feature of the occupation.”
John Dugard points out that Israel implicitly acknowledged charges that home demolition constitutes collective punishment in 2007, when it discontinued the practice for a brief while:
“We’ve seen that in the wake of the killing of the three Israeli teenagers, that homes were destroyed in an act of collective punishment, and of course you can say that the bombing of Gaza is an act of collective punishment, because the majority of the people who are killed are civilians, who are seen simply as collateral damage. And the Israeli forces tend to be a bit unconcerned by collateral damage, so that too constitutes collective punishment … Collective punishment, which is also a war crime, is a feature of the occupation. And I suppose that too could be prosecuted before the International Criminal Court.”
On the prospects of a future Palestinian case before the ICC:
“If Palestine does become a party to the International Criminal Court, there are of course questions about what it can investigate; what international crimes have been committed. Some argue that the International Criminal Court would have retrospective jurisdiction over crimes committed in Gaza in 2008/2009 … in the course of Operation Cast Lead. But it’s more certain that the court would have jurisdiction over settlements, because the transfer of settlers from the occupying power into the occupied state clearly violates the Rome Statute of the International Criminal Court. That would, in effect, enable the International Criminal Court to investigate those responsible for the whole settlement enterprise, and to investigate those who are implementing it.”
“Israel is a real rogue state, because it doesn’t comply at all with public international law; it does not withdraw from the Occupied Territories. Not only does it not withdraw, but furthermore, it has been committing war crimes since 1967 or 1968. All war crimes [that] have been committed by Israel in the Gaza Strip, for instance, could be judged by the ICC. And furthermore, the settlements — as they are war crimes in the West Bank — could also be judged by the ICC, and the ICC could start prosecution against Israeli political leaders who are responsible.”
Listen to John Dugard, Eric David, and Phon van den Biesen.