That the targeting of civilians is illegal as per the laws of armed conflict is beyond doubt. This is crucial to the debate over the legality of “suicide bombings” and whether they can be justified as a form of “belligerent reprisal,” to which we will return shortly.

Early on in the report, Amnesty makes the statement that “Targeting civilians and being reckless as to their fate are contrary to fundamental principles of humanity which should apply in all circumstances at all times. These principles are reflected in international treaty law and in customary law.”⁴ The principles of customary law, it should be noted, would bind even non-signatories, having been generally accepted as reflecting universal norms. It also adds that “The obligation to protect civilians is absolute and cannot be set aside because Israel has failed to respect its obligations.”⁵

The above statements are used as a basis for many of the legal arguments subsequently put forward by the author(s). However, the statements are, by their very nature and their implicit reference to the 1977 Protocols Additional to the Geneva Convention, highly debatable.

The Rebuttal

The reference to “fundamental principles of humanity” seems to be a reference to the Martens Clause, an article in the Preamble to The Hague Convention of 1899 proposed by the Russian delegate, which states that

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.⁶

This is where the first of several problems arises. Professor Kalshoven tells us “It should be pointed out that, in spite of occasional suggestions to the contrary, the [Martens] clause does not have the effect of elevating in particular the ‘principles of humanity’ and ‘dictates of the public conscience’ to the rank of direct, independent sources of international obligation…”⁷

In fact, the obligation to protect civilians is far from absolute, as Amnesty International would hold, and is not as firmly entrenched in international customary law as they would have the reader believe. In fact, it remains subject to much debate, as

the alleged right of reprisal against the civilian population or civilian objects in unoccupied enemy territory has remained a highly controversial issue even after the introduction of a series of express prohibitions on recourse to such reprisals in the section of Protocol I of 1977 devoted to the general protection of the civilian population against the effects of hostilities.⁸

Contrast the above, from an acknowledged expert in the field,⁹ with Amnesty International’s claim that “While neither Israel and the Palestinian Authority are parties to Additional Protocol I, its provisions regarding the protection of the civilian population are regarded as norms of customary international law.”¹⁰

Professor Kalshoven’s argument is further buttressed by Professor Yoram Dinstein, President of the Tel Aviv University, who adds that “The controversial strictures of Protocol I preclude any chance of it achieving universal acceptance… the Protocol per se… remains virtually irrelevant to any armed conflict in which one or more of the belligerents is not a contracting state.”¹¹ As stated above, neither belligerent is a contracting state.   

Additionally, with regards to the specific prohibitions in the Protocol, “the negotiating history of Protocol I makes abundantly clear the paragraph cannot with any degree of certainty be said to reflect customary law…”¹²

Given the fact that the laws in question have not acquired the status of customary international law (contrary to Amnesty International’s assertions), it may therefore be concluded that belligerents in this case are not explicitly bound by the prohibition on subjecting a civilian population to reprisal attacks, as delineated in the Protocols Additional to the Geneva Convention.

Belligerent Reprisals

It now behooves us to return to the aforementioned concept of belligerent reprisals. Reprisals, according to international law “are acts which are in themselves illegal and have been adopted by one state in retaliation for the commission of an earlier illegal act by another state.”¹³

A further clarification that serves our purpose is provided by Professor Lagoni of the University of Hamburg, stating: “A reprisal is by definition a countermeasure against a violation of international law which in itself would be illegal if it were not employed in order to compel the lawbreaking party to obey the law. In short, it is an illegal means turned legal, because it serves a legal end.”¹⁴

And crucially, reprisals “involving armed force may be lawful if resorted to in conformity with the right of self-defence.”¹⁵ In fact, the doctrine of “belligerent reprisals” is “an old rule of customary international law that provides that a nation attacked by another state in a manner that is in violation of international law has the right to suspend any international commitments as between itself and the offending party.”¹⁶ The statement is, of course, subject to some qualification, as there are some international commitments that are simply non-derogable by definition, but it clarifies our point.

In demonstrating the sheer impracticability of attempting to legally prohibit belligerent reprisals against civilians, Professor Dinstein helpfully cites the following example:

Take, by way of illustration, the Protocol’s comprehensive prohibition of attacks against civilians by way of reprisals (Article 51, para. 6). This injunction means that if Contracting State A commits atrocities against the civilian population of Contracting State B, the latter is not allowed to retaliate in kind against the civilian population of State A. But what do the framers of the Protocol expect State B to do? Turn the other cheek? That is a religious tenet rather than a serious military or political proposition. Since the Protocol does not provide State B with any practical alternative response, what is likely to happen is that Article 51, para. 6 will remain a dead letter and — notwithstanding the paragraphs’s lucid language — State B will resort to belligerent reprisals against the civilians of State A.¹⁷

The example is an apt one, given the situation at hand: a largely unarmed civilian populace, facing a rising civilian death toll inflicted by a powerful belligerent, in flagrant violation of international humanitarian law.

Legal Constraints

Sheikh Ahmad Yassin

The right of reprisal, however, is not unlimited. On the most basic level, reprisals are governed by a set of fundamental legal constraints. Specifically, belligerent reprisals can only be construed as legal if the following conditions are met: “… recourse only after due warning and as a last resort, proportionality to the wrong retaliated against, termination as soon as the cause no longer obtains.”¹⁸

It is therefore necessary to determine whether suicide bombings, as a form of belligerent reprisal, directed against Israelis meet the above conditions before conclusions as to their legality or lack thereof can be reached.

The statements of the Palestinian armed factions constitute, at the very least, a statement of intent to inflict reprisal attacks on the Israelis. Specifically, the statement by Sheikh Ahmed Yassin of Hamas, that Hamas is opposed to killing civilians, except where it occurred due to “mistake or to implement an eye for an eye, a nose for a nose.”¹⁹ 

Within the above context, let us examine a number of statements by Amnesty International. First and foremost,

Sheikh Ahmed Yassin has told Amnesty International that Hamas is willing to stop attacks on Israeli civilians if Israel stops targeting Palestinian civilians. He has also reportedly suggested an internationally sponsored agreement similar to that between Israel and Hizbullah, in which the parties committed themselves not to attack civilians.” Hamas official ‘Abd al-’Aziz al-Rantisi has also described attacks on civilians as reprisals, stating in May 2002 for example that “as long as Jews continue to slaughter Palestinians we will hit Haifa , Tel Aviv and Afula. If a Palestinian child is hit, we will hit back, this is the formula.”²⁰

‘Abd al-’Aziz al-Rantisi of Hamas

If the above is indeed factual, (and one finds no reason to question the authenticity of the report), then it is clear that, to Hamas, the suicide bombings against civilians are reprisal attacks. Hamas has expressed a willingness to cease any and all such attacks once Israel ceases killing Palestinian civilians. Hamas has thusly expressed its commitment to respect the aforementioned principle, “termination as soon as the cause no longer obtains.”

Let us therefore examine the aspect of proportionality. We will make no reference to any events occurring after the issuance of the report, allowing the date of publication ( July 11, 2002 ) to act as the critical stage. Therefore, the figures on hand, according to Amnesty, are as follows:

Over 1400 Palestinians and nearly 500 Israelis – including more than 350 civilians – have been killed…²¹ [Italics added]

Given the above estimate, one could tentatively put forth the proposition that 350 Israeli civilian deaths are well within the bounds of “proportionality to the wrong retaliated against.”

As to due warning, the media is rife with examples of repeated and insistent warnings from spokesmen of the armed factions, directed to the Israeli military, along with threats that reprisals will be inflicted if Palestinian civilians continue to die.The statement by ‘Abd al-’Aziz al-Rantisi quoted above could be construed as due warning. Another example is provided by Khaled Meshaal, also of Hamas: “Every time Sharon commits a massacre, the response will come in Jerusalem, in Haifa and throughout the territory of Palestine.”²²

The Last Resort?

And while it might be construed as a partially subjective question, one would have a hard time convincing observers that suicide bombings are not a last resort, given the simple fact that, by definition, they take the life of the perpetrator, and logic dictates that organizations and movements do not needlessly whittle down their own ranks.

Furthermore, suicide bombings suffer from a not insignificant rate of failure, due to the very real risks of capture, premature detonation, and more often than not, inefficiency due to the bomb’s crude construction. Those factors alone would suggest that the potential risks and costs of suicide bombings outweigh the potential benefits. It stands to reason that, had the armed factions had recourse to a method of fighting Israel that did not entail a steady attrition rate of their own numbers, the groups in question would make use of them, rather then send out numerically-limited members to die.

The more cynical would in fact note that suicide bombings are the only resort, given the relative military balance of power between the stone-throwing children and the gun-toting “militants” on the one hand, and the Israeli arsenal of Apache gunboats, F-16 fighter jets and Merkava tanks on the other. Even rifles are rendered useless in the face of the Israeli military’s body-armor.

One may therefore reasonably conclude that at the very least, a number of the suicide bombings may be deemed to have been legitimate without the framework of belligerent reprisals.

In conclusion, Amnesty’s report displayed an either disappointingly shallow or pointedly vague analysis of the applicable humanitarian law. The issue is one that deserved much more careful attention, particularly from a prominent agency such as Amnesty International. While many have come to expect excessive bias in the media towards the conflict, it is a troubling portent that such bias could spill over so blatantly into an Amnesty International report.  

The author encourages your comments. Please e-mail him at azizuddin@islam-online.net

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1- Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977 : Ratifications, Accessions and Successions; List of States Party to the Conventions and Protocols. International Committee of the Red Cross.

2- Ibid; Notes. International Committee of the Red Cross.

3- Amnesty International. Israel and the Occupied Territories and the Palestinian Authority: Without Distinction – Attacks on Civilians by Palestinian Armed Groups. July 2002. 5 p.

4- Ibid., 2.

5- Ibid., 5.

6- Ticehurst, Rupert. The Martens Clause and the Laws of Armed Conflict. International Review of the Red Cross 317 (1997): 125-134. (online)

7- Frits Kalshoven, “Prohibitions or Restrictions on the Use of Methods and Means of Warfare,” in The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, ed. Ige F. Dekker and H.H.G. Post (The Hague: Martinus Nijhoff Publishers, 1992), 100.

8- Ibid., 105.

9- Rainer Lagoni, “Comments: Methods or Means of Warfare, Belligerent Reprisals, and the Principle of Proportionality,” in The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, ed. Ige F. Dekker and H.H.G. Post (The Hague: Martinus Nijhoff Publishers, 1992), 121.

10- Amnesty International. Israel and the Occupied Territories and the Palestinian Authority: Without Distinction – Attacks on Civilians by Palestinian Armed Groups. July 2002. P 22.

11- Dinstein, Yoram. Comments on Protocol I. International Review of the Red Cross 320 (1997): 515-519.

12- Frits Kalshoven, “Prohibitions or Restrictions on the Use of Methods and Means of Warfare,” in The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, ed. Ige F. Dekker and H.H.G. Post (The Hague: Martinus Nijhoff Publishers, 1992), 105.

13- Shaw, Malcom N. (1997). International Law. Cambridge: Cambridge University Press. P 786.

14- Rainer Lagoni, “Comments: Methods or Means of Warfare, Belligerent Reprisals, and the Principle of Proportionality,” in The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, ed. Ige F. Dekker and H.H.G. Post (The Hague: Martinus Nijhoff Publishers, 1992), 121.

15- Shaw, Malcom N. (1997). International Law. Cambridge: Cambridge University Press. P 786.

16- Graham, Thomas, Jr. Deterrence and Assurance Strategy: NATO Nuclear Weapon Use Policy. Project Ploughshares.

17- Dinstein, Yoram. Comments on Protocol I. International Review of the Red Cross 320 (1997): 515-519.

18- Frits Kalshoven, “Prohibitions or Restrictions on the Use of Methods and Means of Warfare,” in The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, ed. Ige F. Dekker and H.H.G. Post (The Hague: Martinus Nijhoff Publishers, 1992), 105.

19- Amnesty International. Israel and the Occupied Territories and the Palestinian Authority: Without Distinction – Attacks on Civilians by Palestinian Armed Groups. July 2002. P 13. 

20- Ibid., P 13.

21- Ibid., P 4.

22- BBC News, “Hamas Vows Revenge for Deaths,”December 14, 2001.

 

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