Israel’s Commitment to Domestic and International Law in Times of War

Vol. 4, No. 5     October 10, 2004

• All activities performed by Israel during the first intifada as well as nowadays are based on law. Israel follows the emergency defense regulations enacted by the British in Mandatory Palestine in 1945. They are similar to those enacted by the British against the IRA in Northern Ireland.

• Israel has established four main principles for implementing the laws of war in the fight against terrorism: 1) Military necessity – the obligation to use force only in a situation which yields a direct military advantage. 2) Distinction between combatants – those who take part directly in hostilities – and noncombatants. 3) Humanity – the obligation to refrain from operations which cause unnecessary suffering. 4) Proportionality – the obligation to ensure that the action does not target in a manner disproportionate to the military advantage expected from the attack.

• Israel classifies terrorists the same way the Americans classify terrorists in Afghanistan and Iraq – as unlawful combatants. They do not have the privilege to be under the umbrella of international law because they do not adhere to the laws of war. Rather, they have violated every possible provision of the laws of war. They don’t wear uniforms or abide by the conditions that entitle them to be POWS.

• Once we define terrorists as unlawful combatants, they become legitimate military targets. It is allowed both legally and morally to fight and kill them. They want to come and kill us, and there is no question regarding the evidence. They’ve manifestly and openly declared their intentions.

• We are entitled from a legal point of view, as a total act of self-defense, to target them. If we can catch them and bring them to trial, that’s better. But if this is not possible, we should be allowed to shoot them down.

• The Geneva Convention was enacted in 1949 and The Hague Regulations in 1907. There was no such terrorism at the time, and there exists no special convention or protocol against terrorism. There is certainly a need for one.

Legal Differences Between the Last Two Palestinian Uprisings

There is a big difference in the legal problems arising from the first intifada (1987-1993) and from the second uprising that began in 2000. The first intifada was characterized by civil unrest, by civilians including women and children throwing stones and making roadblocks. But it was not terrorism. The most extreme terrorist activity at that time was Molotov cocktails thrown at soldiers or civilian vehicles. The problem with applying laws in these situations is that there are no set laws dealing with these kinds of occurrences – the laws of war don’t apply and the laws of peace don’t apply.

At that time we introduced administrative detention, trials, and deportations, all based on the law and within the framework of the law. All activities performed by Israel during the first intifada as well as nowadays are based on law. Israel follows the emergency defense regulations enacted by the British in 1945. The British enacted similar defense regulations against the IRA in Northern Ireland.

The law cannot remain stagnant. It must evolve according to the situation. For example, before the first uprising, the law regarding administrative detention (detention without trial) was different. Administrative detention occurs when information is received based on wiretapping or from an informer whose identity cannot be revealed in court due to his need for protection. A person can be put into administrative detention for six months with a military judge’s approval and this can be extended after six months only with the approval of a judge. There is a judicial review by the Supreme Court of Israel over the administrative detention.

Before the start of the first uprising in 1987, Israel had about 200 administrative detainees. According to the law at that time, the state was obligated to bring each detainee before a judge within 48 hours for supervision, to check the matter. When the uprising started, sometimes we had thousands of administrative detainees and it was impossible to bring them before a judge, and we changed the law. The new law said it is not obligatory for the state, or the military government, to bring each detainee before a judge, but that he has the right to petition to appear before a judge, at any time.

In October 2000 the second intifada broke out, referred to by some as an “armed conflict short of war.” During the first three years of this armed conflict, 942 Israeli civilians were killed in terrorist activities. Coffee shops became scenes of bloodshed. Buses were blown up. When terrorism is imposed on you, you have to fight it – diligently, determinately, and unceasingly – not only in Israel but everywhere in the world. The measures that are taken against terrorists or the people who send them cannot be compared with the moderate measures taken during the first uprising, which was a civilian one.

In the first intifada Israel had control on the ground and it didn’t use tanks, helicopters, or even armored personnel carriers – only jeeps. Israel lost control on the ground as part of what people used to call the peace process and began to gain it back again only two and a half years ago after the Passover massacre in Netanya and Operation Defensive Shield. The tension has now been eased by a combination of control on the ground, the fence, better intelligence, and better ability to react to this intelligence. All these elements together build a situation in which the level of terrorism is lower than in the past. In some areas in which the tension is lower because of the fence, the rules of engagement are different from other areas in which there is no fence and the ability of the terrorists to cross into Israel is easier. Before the first uprising, when times were quiet, Palestinians worked in Israel, and there was almost no problem of security, people were not put into administrative detention and there was no policy of targeted interceptions. Only after terrorism arose and Israel suffered many casualties did we have to take measures against it. Israel should not be ashamed or scolded for the measures it had to take. Compare this to the United States which holds 600 detainees in Guantanamo, Cuba, because the U.S. Supreme Court has no jurisdiction over them there. Or compare Israel’s record to that of France. During the Algerian uprising there were many atrocities performed by the French army against Algerians, yet there was not even one court-martial of French troops.

The powers of the military advocate-general in the State of Israel are different from his counterpart in the United States or England. He is completely independent and decides whether to court-martial, not the military commanders. I would prosecute people who deviated strongly from the rules of engagement, or from common law or from human rights. To shoot somebody for no good reason would result in a court-martial.

Principles for Fighting Terrorism

It’s easier to be a democracy in that part of the world where the United States is located than here in the Middle East, where Israel is surrounded by countries that have nothing to do with democracy or human rights. Israel as a democracy has to weigh two main considerations: first, to fight to eliminate terrorism, and second, it is our duty under international law, humanitarian law, and the Geneva Conventions to protect the human rights of the local Palestinian population, most of whom are innocent.

Israel has established four main principles for fighting against terrorism. First, there must be a military necessity – The obligation to use force is only in a situation which yields a direct military advantage. Second, there needs to be distinction between combatants – those who take part directly in hostilities – and noncombatants. Third is the need for humanity – the obligation to refrain from operations which cause unnecessary suffering. The fourth is proportionality – the obligation to ensure that the action aimed at legitimate targets does not affect protected persons, namely civilians, and that it does not target in a manner disproportionate to the military advantage expected from the attack. These four principles should be the basis of Israel’s implementation of the laws of war.

Unlawful Combatants Are Not Entitled to Treatment as Prisoners of War

What is the legal status of terrorists? Some argue that if they are combatants, they should have the same rights as combatants, namely prisoner-of-war (POW) status and access to The Hague Regulations and the Geneva Conventions governing treatment of POWs. Some say they are civilians and as civilians cannot be attacked. There isn’t a proper classification for these terrorists under international law. The Geneva Convention was enacted in 1949 and The Hague Regulations in 1907. There was no such terrorism at the time or during the Second World War, and there exists no special convention or protocol against terrorism. There is certainly a need for one.

Israel classifies terrorists the same way the Americans classify terrorists in Afghanistan and Iraq – as unlawful combatants. They are combatants but they do not have the privilege to be under the umbrella of international law because they do not adhere to the laws of war. They are not entitled to its protection since they have violated every possible provision of the laws of war and humanitarian law. They don’t wear uniforms or abide by the conditions that entitle them to be POWS.

What measures are we taking against these unlawful combatants? If we have evidence and manage to bring them into custody, we bring them to trial before a court of law, a military court.

Targeted Interceptions and the Law

One new measure employed by Israel in the war against terror involves targeted interceptions, a subject of extensive debate. Once we define the terrorist as an unlawful combatant, he is a legitimate military target. It is allowed both legally and morally to fight and kill any terrorists for their notorious and ruthless terrorist activities, and we should not deal with them as protected persons. They are unlawful combatants, they want to come and kill us, and there is no question regarding the evidence. They’ve manifestly and openly declared their intentions.

Why should we wait until a terrorist carrying an explosive belt walks into a coffee shop in Jerusalem, opens his coat, and only when we see the belt are we allowed to shoot him? We are entitled from a legal point of view, as a total act of self-defense, to target him and get him beforehand. If we can catch him and bring him to trial, that’s better. But if he is surrounded by bodyguards, we should be allowed to shoot him down.

There are very strict preconditions that apply to the use of targeted interceptions. These preconditions are known at all levels of the IDF and the Ministry of Defense, which consult with the military advocate-general. First, the terrorist or his superior must pose an imminent threat; it is not permitted to exercise this policy as a punitive measure but only as a preventive measure. Second, there must be no viable option to arrest the terrorist. Third, the four principles of military necessity, distinction, humanity, and proportionality noted earlier must be adhered to firmly. Only under these circumstances may we carry out this kind of interception. There was no mistake when targeting Sheikh Yassin or other known terrorists with blood on their hands. The only problem with targeted interceptions is when innocent people in the surrounding area are killed or injured. We keep telling our soldiers and pilots to keep the idea of proportionality in mind. The killing of civilians in time of war can happen inadvertently, of course, but the pilots know how to differentiate, and they have the right and the discretion not to shoot when there is extensive danger to the local population.

The Supreme Court of Israel

The Supreme Court of Israel is the pinnacle of human rights in the State of Israel, as well as in the administered areas. While there is no precedent in international law, every local inhabitant including Arabs residing in the administered areas can apply directly to the Supreme Court of Israel and ask for remedy based on justice. People can petition the Supreme Court and it has jurisdiction over every Israeli official.

There are many examples of Supreme Court intervention. During the Gulf War in 1991, Israel distributed gas masks to every Israeli citizen but not to the local Arab population of the West Bank and Gaza. After a petition to the Supreme Court, the court ordered the army to distribute gas masks to the local population, as well.

We obey, without question, our Supreme Court rulings. In the case of Israel’s security fence, the Supreme Court of Israel ruled, first of all, that it is legal to build the fence, and second, that the route of the fence should be amended. I think that’s the right decision. The idea of building the fence arose because we wanted to protect ourselves, not because we wanted to cause misery to the Palestinians.

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Judge Amnon Straschnov, currently president of the Israeli Institute of Commercial Arbitration, served as the Military Advocate General (Chief Legal Officer) of the Israel Defense Forces (1986-1991) and as President of the Military Courts in the West Bank (1982-1984). He also administered Israel’s military justice system both within the “green line” and in the administered areas. His many publications include Justice Under Fire (1994, Hebrew), dealing with the legal aspects of the first uprising in the administered areas.