The Laws of Lawless Warfare

George Mason University’s Jeremy Rabkin reviewed Hoover Institution Scholar Peter Berkowitz’s Israel and the Struggle Over the International Laws of War in The Jewish Review of Books‘s Summer 2012 issue. Rabkin praises Berkowitz for his cogent defense of Israel against spurious claims that Israel violated internationally accepted laws of war, but Rabkin takes the debate one step further. Some of the widely accepted laws of war stand on shaky ethical and procedural foundations:

Berkowitz does an admirable job of getting Israel off the hook on which its enemies have tried to place it—but only up to a point. He doesn’t do very much to enlighten his readers about the origins and design of this hook—the contemporary understanding of the “laws of war.” Early on, he refers to the “master concepts of the international laws of war governing combat operations.” One of these, he says, is “the principle of distinction,” which “requires parties to a conflict to distinguish between civilians and civilian objects, and combatants and military objects, and prohibits targeting the former.” The other main principle, according to Berkowitz, is that of proportionality, which “requires that the force used in the pursuit of legitimate military objectives be reasonably expected not to cause harm to civilians or to civilian objects that would be excessive in relation to the anticipated military advantage.” How and when did these restrictions come to undergird the laws of war?

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Additional Protocol I was the first treaty on war to confer prisoner of war protections on guerilla fighters who disguised themselves as civilians. All previous treaties had assumed that combatants who hid among civilians would inevitably force the opposing fighters to fire on actual civilians. But by 1977, the additional protocols approved this concession to the demands of “national liberation” movements, which relied on previously prohibited guerilla tactics. While accommodating guerillas, AP I also sought to restrain the power of more advanced states that might be fighting against them; it set down far more detailed and constraining limits on permissible targets for bombing or artillery attacks than any previous treaty.

AP I also launched another controversial innovation. It was the first treaty to insist that its restrictions remain binding, even against an enemy that did not adhere to them. Previous treaties spoke about obligations of the “contracting parties,” acknowledging that non-adherents could not expect the same protections as those who accepted the agreed restraints. Thus, to cite the textbook example, when Germany used poison gas and attacked neutral shipping early in World War I, Britain and France asserted they would now be under no obligation to heed prewar restrictions on such tactics. Bombing of cities in World War II was justified in the same way—the Germans (and Japanese) started it.

By eliminating traditional notions of reciprocity (and permissible reprisal when reciprocity breaks down), AP I invited precisely the situation that Israel faced in Gaza. Hamas denied any obligation to the restraints set down in AP I, notably those against attacking civilians, who were the main targets of its rocket attacks on Israel, and deliberately placed its weapons, fighters, and command centers in civilian neighborhoods. When Israel tried to demolish Hamas military sites in its incursion into Gaza in December of 2008, Hamas—and much of the world—put all the blame on Israel for the ensuing civilian casualties.

This result was entirely foreseeable. It is one reason why the United States has never ratified AP I—nor, for that matter, has Israel. Britain, France, Germany, Canada, Australia, and a number of other western states have ratified it but only with reservations stipulating that they will not be bound by all the restrictions against an enemy that defies them.

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It is hardly a coincidence that Additional Protocol I is so often invoked against Israel. The political momentum for this convention actually began with a conference in Iran a few months after Israel’s victory in 1967. The Third World majority there insisted that international human rights had to embrace the laws of war. In 1975, delegates from more than a hundred countries, the majority of them from the Third World, assembled in Geneva to draft additions to the earlier Geneva conventions. Only a few months later, the same Third World majority endorsed the infamous resolution equating Zionism with racism at the UN General Assembly. Among the invited guests at the Geneva drafting conference were representatives of the Palestine Liberation Organization, who expressed full satisfaction with the results.

For centuries, commentators on the laws of war—basing their opinions on actual practice—insisted that the rules governing the conduct of war (jus in bello) must be insulated from disputes about the justice of the cause on either side (jus ad bellum). AP I discarded this formula to give special claims to “people fighting against racist regimes.” Meanwhile, ordinary domestic rebels still could be crushed by almost any tactics that non-“racist” regimes might choose. By 1998, the international conference drafting the treaty for the International Criminal Court (ICC) agreed to language classifying among “war crimes” the policy of allowing civilians to settle in “occupied territory”—a provision aimed directly and seemingly exclusively at Israeli practice in the disputed Palestinian territories.

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Why don’t defenders of Israeli policies—why doesn’t the government of Israel itself—offer more forthright challenges to the unreasonable expectations now associated with the laws of war? One reason, surely, is that Israel wants to present itself as always acting lawfully. It wouldn’t help its case to advertise its objections to the law. Even the United States government began by insisting that detention of suspected terrorists at Guantanamo was entirely lawful, then wound up promising (as early as George Bush’s second term) to work toward closing down that facility. Israel has more reason to be sensitive to criticism, particularly in Europe.

These issues are not just a matter of public relations. A number of European countries still have legal provisions authorizing national prosecutors to exercise “universal jurisdiction” against the most serious crimes—war crimes or crimes against humanity—if they cannot be addressed elsewhere. Earlier this year, the ICC rejected a long-standing Palestinian effort to have the court’s prosecutor investigate Israeli tactics in the Gaza campaign on the grounds that Palestine is not a state. In 2009, a UK magistrate issued a warrant for the arrest of Tzipi Livni, forcing her to cancel a diplomatic trip to London for fear she would actually be put on trial while there. The possibility remains, however, that the ICC will decide that it does, after all, have jurisdiction over Israeli attacks on the Palestinians or a neighboring state. But the ICC, too, is supposed to defer to national authorities when they are investigating in good faith. If Israel were to highlight its disagreements with particular international standards, it would not help its claim that it can be trusted to investigate its own military actions.

But there’s more to it than legal strategy. At a deeper level, the IDF clearly seeks to reassure itself that it is acting properly, decently, lawfully-maintaining the “purity” of its “weapons,” by not engaging in unrestrained violence. I have met quite a few American military specialists who concede (at least in private) that international legal standards are sometimes just a nuisance to get around. By contrast, I’ve never met an Israeli analyst who does not express serious concern about establishing proper limits on force. The IDF submits to lawsuits in which the Israeli Supreme Court weighs the legality of particular targeting decisions, sometimes even in the midst of ongoing military operations.

The Israeli Supreme Court says, in turn, that democracies must fight with restraint but it does not, in fact, defer to the actual practice of other democracies. It sets its own standard, often more restrictive than that displayed in American combat operations (if more permissive than those found in European military manuals). I am not sure how many Israelis accept such restraints as a matter of democratic theory, but there does seem to be widespread acceptance that a Jewish state cannot sink to the barbarism of its enemies.

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The Laws of Lawless Warfare

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