Posted: May 07, 2004
Based on discussions at the March 26, 2004 Conference on International Law & the Middle East Conflict, sponsored by the New York Region of the Anti-Defamation League in cooperation with the NYU Jewish Law Student's Association
The application of international law to the Middle East conflict is controversial and often confused. Sometimes the law is used as a weapon in the conflict, rather than as a framework by which the parties' conduct can be examined on a fair and objective basis.
Below are seven essential points designed to help any student or observer examine positions expressed with respect to international law in the Middle East conflict. It may also help you reach some opinions of your own.
1. International Law and Reality
In matters of international law, one must always ask whether the law is being applied in a realistic way that addresses the actual circumstances of the conflict. The legal response to the situation must offer realistic solutions to very complex problems.
The Middle East conflict presents complex problems and excruciating dilemmas for decisions makers. What does one do, for example, when ambulances are used to transport explosives or suicide bombers. When you are dealing with operatives that have no regard for the rule of law it is of no use to present a utopian vision that ambulances should never be checked at crossing points. Granting such absolute immunity, which incidentally is not demanded by international law, will only ensure that medical vehicles will be used for military purposes.
Ask - Does the legal response provide a realistic solution to the actual situation?
2. What Body of Law Applies?
Before analyzing the situation, it is necessary to reach a conclusion as to what body of law applies. Each scenario must be judged by the body of law that is applicable to it.
It is important when discussing international law to understand exactly which body of law applies. Are we in an armed conflict situation? Are we in a criminal law situation? What is the interplay between the relevant legal regimes?
For example, many have condemned the targeting of leaders of Hamas as "extra-judicial killings", while at the same time recognizing that Israel has a right of self-defense against terrorists. If that right is recognized, Israel's actions need to be considered under the rules of self-defense and a humanitarian law regime, not under a criminal standard. In this case, the magnitude of hostilities between Israel and the Palestinian terrorist groups justifies an armed conflict classification, in at least the same way as the confrontation with Al Qaeda. The recognition of Israel's right of self-defense implicitly accepts that armed conflict is the relevant legal regime. In that context, Hamas leaders responsible for planning and orchestrating ongoing attacks against civilians can properly be regarded as illegal combatants. There is sometimes no opportunity to arrest them without significant casualties to innocents, and the Palestinian Authority refuses to fulfill its obligations to apprehend them. In such a case, and judged by the appropriate legal regime, Israel is entitled to use necessary and proportionate force in self-defense against those planning and executing ongoing acts of terrorism.
Ask - Is the right body of law being applied?
3. Read and understand the relevant legal principles
Once the applicable legal regime is identified, it is necessary to properly understand the operation of the relevant legal principles.
For example, Israel is often reminded of its obligations under international humanitarian law not to use disproportionate force. While Israel has the right to defend itself against terrorism, its response must be both necessary and proportionate. But what does proportionality mean? Many people misunderstand the rule. In international law proportionality is measured against the amount of force necessary to achieve a legitimate military objective. Israel faces a massive and ongoing terrorist threat, including the risk of mega attacks. Proportionality must be measured against that threat. Simply because civilian casualties occur does not signify that the military action was disproportionate. To have such a rule would just encourage terrorists to use civilians as human shields, as we see in the Israeli-Palestinian conflict.
While the military force responding to the terrorists must exercise great caution in trying to avoid civilian casualties, harm to civilians when terrorists use them for cover is often the fault and responsibility of the terrorists who engage in this reprehensible tactic. Attacking Israelis from a civilian area or dressing as a civilian in order to claim that Israel attacks civilians, or to seek immunity from a response, is illegal under international humanitarian law.
Ask - Is the relevant legal rule being applied appropriately?
4. When the facts are in dispute the law is in dispute
The law depends on the facts. International law may not always provide the answer especially when the facts are fundamentally in dispute.
When the interpretation of the law and the specific facts are in dispute, the law may not be able to provide the answer. In the Israeli-Palestinian conflict there are fundamental disagreements about the facts that can make the law less useful.
For example, in every confrontation between Israeli soldiers and Palestinian terrorist operatives different accounts of the events often emerge. Without a clear appreciation of the facts it is difficult to reach definitive legal conclusions.
In the case before the International Court of Justice, the Palestinians have claimed that Israel will construct a fence on the eastern side of the West Bank, thereby surrounding the West Bank. Yet there is no reference to an eastern fence in Israeli documents or in the Secretary General's Report. Without real facts, judges cannot fairly adjudicate, nor can they reasonably rule on the legal consequences or legitimacy of such a fence.
To give another example Israelis and most western scholars agree that Israel's presence in the West Bank and Gaza Strip is a clear function of legitimate self defense in the Six Day war. It should be concluded in the context of a negotiated peace settlement that ensures secure and recognized boundaries and resolves outstanding issues as agreed by the parties. However, the Palestinian side does not acknowledge the defensive nature of Israel's actions in 1967. It is difficult to enforce law when there is no consensus on the basic issues of the conflict
The facts in this conflict are extremely complex and controversial. They need to be examined with rigor, and legal conclusions need to be reached with some humility.
Ask - Are the facts clear - and have some humility about your conclusions if they are not.
5. Know the Speaker's Bias, Know your own Bias
Everyone coming to examine an issue, especially like the Middle East, comes to it with a certain worldview. Legal conclusions need to be considered in that context.
Every lawyer coming to examine an issue, especially like the Middle East, comes to it with a certain worldview. While some view the Israeli-Palestinian conflict requiring an accommodation between the legitimate rights of Israelis and Palestinians, others see it only from the prism of injustice caused to one side. When one's overarching opinion about the conflict is rooted in a focus on injustice to only one side one's legal analysis is inevitably slanted.
Ask - What is the speaker's bias and be honest about your own bias.
6. Rely on legitimate sources
U.N. resolutions should not always be viewed as a source of legal authority. Legal principle frequently takes a backseat to political maneuvering in what are political rather than judicial bodies. It is not good enough to just cite to these sources, you must argue the case.
The perception that U.N. resolutions are an obvious source of legal authority is a flawed view since legal principle often takes a backseat to political maneuvering in the political organs of the UN. It is crucial to evaluate the history of a resolution, how it came about, who voted for and against its passage, and what the text of the resolution states before making a judgment about its legal authority or relevance
For example, while criticism by the United Nations Commission on Human Rights (CHR) may seem legitimate, it pays to look at the composition and operation of the CHR. The CHR is a body which is often controlled by the main violators of human rights in this world. Resolutions adopted by this body can often just serve as a way to demonize Israel so as to deflect attention from the massive human rights abuses in these countries. Other international bodies, including the General Assembly, can also suffer from this problem. These are political organs, not judicial ones, and their documents need to be analyzed in that light.
Ask - Is the legal authority relied on a legitimate, objective and relevant source?
7. Do not engage in selective justice
Selective application of justice makes a mockery of the law.
It goes without saying that Israel, like any other nation, must observe the law regardless of who else is in compliance. However, justice must be uniformly applied and enforced, and to limit human rights criticisms to Israel is hypocritical and politically motivated, not legally justified. Selective application of justice makes a mockery of the law.
Unfortunately, there exist many examples of such biased application of the law. When the Security Council pays more attention to condemning the targeting of the leader of a terrorist organization responsible for the murder of hundreds of innocent people, than to condemning the massacres he is responsible for; When the response to terrorism is scrutinized in detail, but the terrorism itself is ignored; When massive human rights violations of other countries is disregarded, and the conduct of only a few are examined ---- that is selective justice and it undermines the rule of law and the reputation and legitimacy of the organizations that engage in it.
Ask - Is this a case of selective justice?