Tyranny in the Name of Self-Defense
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Thomas J. Haidon
Researcher – International Law
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03/07/2002
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Church of the Nativity under siege |
During
his highly anticipated speech on the future of Palestinian-Israeli
relations on July 25, 2002, President George W. Bush reiterated the
statement that “Israel has a right to defend herself.” President
Bush, along with Prime Minister Sharon and his predecessors have
classified Israeli occupation and tyranny as falling under the model
of “classic” self-defense. However, both President Bush and the
Israeli prime minister have failed to recognize that any right of
self-defense is a qualified right subject to the constraints of
international humanitarian law.
It
is a fundamental principle of international law that states have a
qualified right to defend themselves. In an interview with the
Jerusalem Report, Prime Minister Ariel Sharon’s Chief Media
Advisor Ra’anan Gissin discussed the bases of Israel’s claim of
self-defense: “Like the Americans in Afghanistan,” Gissin said,
“we are exercising our right to self-defense on the basis of
Article 51 of the U.N. Charter...” 1
Article 51 of the Charter of the United Nations states that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.2
Article 51 places a time limit on self-defense. When
the Security Council takes action self-defense is no longer
legitimate. Applying this to recent Israeli military responses after
the “Passover massacre” and subsequent Palestinian bombings, it
should be noted that Israel failed to report its actions to the
Security Council.3 On March 30,
2002 the Security Council passed Resolution 1402 (2002), which
reiterated its demand for “an immediate cessation of all acts of
violence, including all acts of terror, provocation, incitement and
destruction.”4
The Security Council resolution called, once again,
for the withdrawal of Israeli troops from Palestinian cities.
Essentially, upon the passing of Security Council Resolution 1402
the Israeli incursion into Palestinian cities should have ceased and
desisted immediately. The Security Council on April 4, 2002 once
again demanded an immediate implementation of Security Council
Resolution 1402 (2002) when it passed Resolution 1403 (2002).5
Israel’s incursions into Palestinian cities, even
assuming that they were legitimate at the outset (which will later
be refuted), cannot be legitimate self-defense because the Security
Council has embarked on “measures necessary to maintain
international peace and security.”6
The inherent right of self-defense predates the
Charter. It is subject to two conditions: the necessity of the use
of force for defensive purposes, and whether the defensive force is
proportionate to the force actually used.7
Furthermore, the standard under international law for whether a
particular use of force constitutes self-defense comes from an
incident in 1837 where British subjects destroyed an American ship,
the Caroline, in a U.S. port, after the Caroline had been used in
American raids into Canadian territory. The British claimed the
attack was self-defense. Through an exchange of diplomatic notes,
the dispute was resolved in favor of the Americans. U.S. Secretary
of State Daniel Webster urged the following definition of
self-defense, which the British accepted, and has been the accepted
rule in international law ever since:
… necessity of that self-defence is instant, overwhelming, leaving no choice of means, and no moment for deliberation…[The means of self-defense must involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.8
Therefore,
self-defense must be proportionate. The Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War
(August 12, 1949) and its 1977 Protocol provide an attempt to codify
the principle of proportionality relating to occupied territories.
Article 4 of the Fourth Convention considers “protected
persons”: “Persons protected by the Convention are those who, at
a given moment and in any manner whatsoever, find themselves, in
case of a conflict or occupation, in the hands of a Party to the
conflict or Occupying power of which they are not nationals.”9
Protected persons within an occupied territory, including the
infirmed and wounded must be protected against “pillage and
ill-treatment.”10
Under the Fourth Geneva Convention Article 17:
The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all regions, medical personnel and medical equipment on their way to such areas.11
In
addition members of medical personnel engaged in “operation and
administration of civilian hospitals, including the personnel
engaged in the search for, removal and transporting of and caring
for wounded and sick civilians” are to be protected from
confrontation and molestation.12
Further pursuant to Article 33 of the Convention, protected persons
cannot be subject to punishment for an offense not committed by that
person: collective punishment is prohibited.13
The
1977 Additional Protocol to the Geneva Convention bestowed an
enhanced status upon Protected Persons in occupied territories,
Article 48 under the Basic Rule states:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.14
Arguably
the most important obligation arising out of the Additional Protocol
is that of distinguishing between military combatants and civilians,
and between civilian objects and military objectives. Chapter II of
the Protocol outlines the obligation of the parties to protect the
civilian population from attacks including acts of violence that
seek to “terrorize” civilians.15
The Protocol prohibits attacks that are indiscriminate.16
Furthermore,
the Protocol provides protection for those “objects indispensable
to the survival of the civilian population.”17
The starvation of the civilian population, as a method of war, is
prohibited as is targeting agricultural areas, drinking water
sources, foodstuffs, and producers of foodstuffs.
Adding
further weight to the requirement of proportionality in
self-defense, the International Court of Justice rendered an
important decision in the United States v. Nicaragua.18
The
Court held that the principle of proportionality has become “well
established in customary international law.” According to the
Court self-defense must be proportional to the initial armed attack.19
The
Necessity for Israeli Military Action against Palestinians was not
“instant, overwhelming and leaving no choice of means, and no
moment for deliberation.”
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Israeli
“retaliation” is disproportionate |
The
Palestinian bombings that took place during the Holy Passover in
March were indeed a significant blow to the security of Israel. The
necessity for self-defense measures should be considered as
“instant.” The Israeli government surely became obligated
instantly to pursue some measures of self-defense. The necessity
however, to invade Palestinian towns and territories while incurring
significant loss of life, liberty and property to Palestinian
civilians arguably was not “overwhelming and leaving no choice of
means and no moment for deliberation.”
Instead
of military retaliation, Israel could have taken tougher measures to
secure its border. In fact Ariel Sharon on February 22, 2002, laid
out a plan to establish buffer zones throughout the
Israeli-Palestinian territorial borders that would serve as a
“security separation from the Palestinians.”20
These buffer zones are only now beginning to be constructed. Buffer
zones could serve as another means with which Israel can protect
itself against Palestinian bombers; an alternative to a murderous
offensive that has killed scores of civilians.
Furthermore,
the necessity of Israeli self-defense must leave “no moment for
deliberation.” In the case of the Israeli response to the
Palestinian bombings of March, there was adequate time for
deliberation. Israel, in fact waited days after Palestinian bombings
to act. Operation “Defensive Shield” officially began on March
28, 2002. Palestinian bombings occurred on March 20, and March 21,
2002 with no retaliation. Israel could have posited alternative
responses between the Palestinian bombings of March 21 and March 27
of 2002. The “necessity” component of self-defense is not
readily apparent in Israel’s recent actions.
Israel’s
Military Action in and Against the Palestinian Territories is not a
Proportionate Act of Self-Defense.
In
terms of proportionality, Israel’s acts of self-defense appear to
be unjustifiable and are disproportionate. The Security Council in
cases involving Israel has approached the concept of proportionality
“by comparing the response on a quantitative basis to the single
attack which preceded it.”21
In
March for example, after a rash of devastating bombings, Israel
mounted one of its largest military incursions since the
Arab-Israeli War of 1967. Since that incursion hundreds of
Palestinians, including civilian men, women and children have been
killed.22 Since the beginning of
the Al-Aqsa Intifada on September 28, 2000 1,671 Palestinians have
been killed by Israeli Defense Forces and at least 19,991 have been
injured.
Israel
ratified the Fourth Geneva Convention and became a High Contracting
Party on July 6, 1951. Since then Israel has essentially shirked its
obligations as an occupying power of Palestinian territories. In
1971, then Attorney General Meir Shamagar announced that Israel’s
administration of the Palestinian territories would be in accordance
with the humanitarian provisions of the Fourth Geneva Convention on
a “de facto basis.”23
As
of late, Israel has shown significant resistance to compliance with
the convention. Israel argues that it can no longer be classified as
an occupying power because the Oslo agreements have substantially
altered the situation. In particular, effective control of the
defined area “A” area (pursuant to Oslo) has been handed over to
the Palestinian Authority.”24
This
argument has no validity in terms of “Operation Defensive
Shield.” In spite of the Palestinian Authority’s rejection of
the Oslo Accords, Israel has also abrogated its obligations by
re-occupying all of the “A” designated areas, by forcibly
removing the Palestinian Authority from power through the
confinement of Chairman Arafat in Ramallah, and through the
targeting and extra-judicial killing of Palestinian Authority law
enforcement officials throughout the Palestinian territories.
Israel
has also sought to bypass its obligations by asserting that, because
it has a claim on the Palestinian territories, and since the legal
status of Palestinians has not been decided, it cannot be a case of
“belligerent occupation.25”
As a result Israel has argued that it is not subject to
international humanitarian law.26
However, the United Nations and the international legal community think otherwise. United Nations Security Council Resolution 1322 (2000) affirmed Israel’s obligations under the Fourth Geneva Convention: “Calls upon Israel, the occupying power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War 12 August 1949.”27
Conclusion
Any right to self-defense that the State of Israel has against Palestinian bombings is a qualified one, but it must follow international law. Similarly, Palestinians, it can be said, also have a qualified right to defend themselves. Unfortunately for the Palestinians, conventional weapons are not at their disposal to defend their homes and families from Israeli acts of terrorism. Because Palestinians have been prohibited by Israel and the U.S. to have such weapons pursuant to international covenant, bombings are the only options available. A serious argument can be made that Palestinian bombings are a form of self-defense. However, when civilians are targeted, international law is abrogated unless civilian casualties can be considered “collateral damage.” Palestinian operations, to maintain the minimal legality, should be confined to strictly military targets. Surely, the targeting of IDF soldiers within Palestinian territories is a legitimate act of self-defense.
The
author encourages your comments. Please e-mail him at thaidon@justice.com
1-
http://www.jrep.com/Reporter/Article-10.html.
“Israel Won’t Suspend Targeted Killings During U.S. Cease-Fire
Effort.”
2-
http://www.jrep.com/Reporter/Article-10.html.
“Israel Won’t Suspend Targeted Killings During U.S. Cease-Fire
Effort.”
3-
United Nations Charter. Article 51.
4-
United Nations Security Council Resolution 1402 (2002) March
30, 2002
5-
United Nations Security Council Resolution 1403 (2002) April
4, 2002
6-
Article 51
7-
Kirgis, Frederick L. “Cruise Missile Strikes in Afghanistan
and Sudan.” http://www.asil.org/insights/insigh24.htm.
August 1998.
8-
Damrosch, Lori, Henkin, Louis. The Caroline. International Law
Cases and Materials. West Group. 2001. p. 923.
9-
Fourth Geneva Convention. Article 4.
10-
Ibid. Article 16
11-
Ibid. Article 17.
12-
Ibid. Article 20
13-
Ibid. At Article 33.
14-
Protocol 1 Additional to the Geneva Conventions, 1977.
15-
Ibid. at Chapter II, Article 51, paragraph 2.
16-
Ibid. at Chapter II, Article 51, paragraph 4.
17-
Ibid. at Chapter III, Article 54.
18-
Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4
(June 27).
19-
Ibid. at 176
20-
Hoffman, Gil. “Sharon unveils buffer zone plan.” The Jerusalem
Post Internet Edition. February 22, 2002. http://www.jpost.com/Editions/2002/02/22/News/News.43938.html.
21-
Schacter, Oscar. The Extra-Territorial Use of Force Against
Terrorist Bases. 11 Hous. J. Int’l L. 317 (1989) at. 315
22-
Kirgis, Frederick L. “Israel’s Intensified Military Campaign
Against Terrorism.” The American Society of International Law.
December 2001. http://www.asil.org/insights/insigh78.htm
23-
Weiner, Justus R. “Human Rights in Limbo During the Interim Period
of the Israel-Palestinian Peace Process: Review, Analysis, and
Implications” (1995) 27 NYU J Int’l L & Pol 761, 768
24-
United Nations Economic and Social Commission on Human Rights:
Question of the Violation of Human Rights in the Occupied Arab
Territories, Including Palestine. (16 March 2001) [hereinafter
UNESCCHR Report] p. 12.
25-
Falk, Richard. “Beyond Oslo: The New Uprising International Law
and the Al-Aqsa Intifada. Middle East Report 217. Winter 2000.
www.palestinemonitor.org/interlaw/falk_international_law.htm
p. 2
26-
Ibid.
27-
United Nations Decurity Council Resolution 1322 (2000) October 7
2000
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