Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
Israel's perverting of international law
By George Bisharat
Redress, SFC, 3
George Bisharat shows how Israel constantly tries to
transform international law through violations, which if successful would
encourage occupiers to follow its lead, externalizing military control while
shedding all responsibilities to occupied populations.
extent of Israel's brutality against Palestinian civilians in its 22-day
pounding of the Gaza Strip is gradually surfacing. Israeli soldiers are
testifying to lax rules of engagement tantamount to a license to kill. One
soldier commented: "That's what is so nice, supposedly, about Gaza: you see
a person on a road, walking along a path. He doesn't have to be with a
weapon, you don't have to identify him with anything and you can just shoot
What is less appreciated is how Israel is also brutalizing
international law, in ways that may long outlast the demolition of Gaza.
Since 2001, Israeli military lawyers have pushed to re-classify military
operations in the West Bank and Gaza Strip from the law-enforcement model
mandated by the law of occupation to one of armed conflict. Under the
former, soldiers of an occupying army must arrest, rather than kill,
opponents, and generally must use the minimum force necessary to quell
While in armed conflict, a military is still
constrained by the laws of war including the duty to distinguish between
combatants and civilians, and the duty to avoid attacks causing
disproportionate harm to civilian persons or objects the standard permits
far greater uses of force.
Israel pressed the shift to justify its
assassinations of Palestinians in the occupied territories, which clearly
violated settled international law. Israel had practised "targeted killings"
since the 1970s always denying that it did so -but had recently stepped
up their frequency, by spectacular means (such as air strikes) that rendered
President Bill Clinton charged the 2001 Mitchell
Committee with investigating the causes of the second Palestinian uprising
and recommending how to restore calm in the region. Israeli lawyers pleaded
their case to the committee for armed conflict. The committee responded by
criticizing the blanket application of the model to the uprising, but did
not repudiate it altogether.
Today, most observers including
Amnesty International tacitly accept Israel's framing of the conflict in
Gaza as an armed conflict, as their criticism of Israel's actions in terms
of the duties of distinction and the principle of proportionality betrays.
This shift, if accepted, would encourage occupiers to follow Israel's lead,
externalizing military control while shedding all responsibilities to
Israel's campaign to rewrite international law
to its advantage is deliberate and knowing. As the former head of Israel's
20-lawyer International Law Division in the Military Advocate General's
Office, Daniel Reisner, recently stated:
If you do something for long enough, the world will accept it. The
whole of international law is now based on the notion that an act that
is forbidden today becomes permissible if executed by enough
countries... International law progresses through violations. We
invented the targeted assassination thesis and we had to push it. At
first there were protrusions that made it hard to insert easily into the
legal molds. Eight years later, it is in the centre of the bounds of
In the Gaza fighting, Israel has again tried to transform international
law through violations. For example, its military lawyers authorized the
bombing of a police cadet graduation ceremony, killing at least 63 young
Palestinian men. Under international law, such deliberate killings of
civilian police are war crimes. Yet Israel treats all employees of the
Hamas-led government in the Gaza Strip as terrorists, and thus combatants.
Secretaries, court clerks, housing officials, judges all were, in Israeli
eyes, legitimate targets for liquidation.
George Bisharat is a professor of law
at Hastings College of the Law in San Francisco, and writes frequently
on law and politics in the Middle East.
Israeli jurists also
instructed military commanders that any Palestinian who failed to evacuate a
building or area after warnings of an impending bombardment was a "voluntary
human shield" and thus a participant in combat, subject to lawful attack.
One method of warning employed by Israeli gunners, dubbed "knocking on the
roof," was to fire first at a building's corner, then, a few minutes later,
to strike more structurally vulnerable points. To imagine that Gazan
civilians penned into the tiny Gaza Strip by Israeli troops, and
surrounded by the chaos of battle understood this signal is fanciful at
Israel has a lengthy history of unpunished abuses of
international law among the most flagrant is its decades-long colonization
of the West Bank. To its credit, much of the world has refused to ratify
Israel's violations. Unfortunately, our government is an exception, having
frequently provided diplomatic cover for Israel's abuses. Our [US] diplomats
have vetoed 42 UN Security Council resolutions to shelter Israel from the
consequences of its often illegal behaviour.
We must break that habit
now, or see international law perverted in ways that can harm us all. Our
government has already been seduced to follow, in Afghanistan and elsewhere,
Israel's example of targeted killings. This policy alienates civilians,
innocently killed and wounded in these crude strikes, and deepens the
determination of enemies to harm us by any means possible.
We do not
want civilian police in the United States to be bombed, nor to have anyone
"knock on our roofs". For our own sakes and for the world's, Israel's
impunity must end.
A version of this article
was originally published in the
San Francisco Chronicle.