The America Jewish Committee’s top legal expert said international law is generally tilted toward guerrilla warriors and against nation-states such as Israel.
“Ordinary armies, in order to get the benefits of the Geneva Conventions, have to be in uniform so you can tell who is a civilian and who is not,” said Marc Stern, associate general counsel for legal advocacy at AJC. “But a new protocol said members of a liberation army do not have to wear uniforms.”
As a result, rules meant to govern humane treatment of war victims “were written to make guerrilla or irregular warfare possible, feasible, and effective and very difficult to defend against,” he said.
Stern spoke at a home in Princeton on Nov. 1 to members of AJC’s Central New Jersey Region.
Pointing to Israel’s 2008-09 military campaign in Gaza, Stern said, “Of the 700 [Gazans] who claimed to be civilians, 250 were members of a Hamas police force. Those aren’t civilians. The Red Cross said they were not in military uniforms at the time and were not required to be in military uniforms.
“They are civilians you can’t attack.”
Stern said members of an “irregular force” such as Hamas or Hizbulla “can shoot missiles from the top of private houses in Lebanon, then take the missile launcher down. And when Israel comes to attack, you say, ‘That is a civilian target’…. You can attack a military target surrounded by civilians if the expected military advantage exceeds the harm to civilians to be judged by a military commander at the time of the attack.
Such a standard, said Stern, “has been used as a weapon against Israel,” with critics charging that “they engaged in a disproportionate attack that violates the protocol.”
But even if Israel could show the value of the military target were sufficient enough to warrant civilian deaths, another factor compounds the problem: television and cell phones.
“If you show dead bodies, it doesn’t matter how learned is your treatise on international law. You’ve lost the battle anyway.”
Realistically, the protection of civilians also becomes the protection of terrorists,” he said.
Claiming he was playing “more than devil’s advocate,” the attorney suggested that “these rules are not as bad as I made them to be. Had the French Resistance in World War II been required to wander around in uniforms, it would have been crushed instantaneously by the Germans. The only conceivable way you could operate a resistance [against] a totalitarian state is by looking like civilians.”
Similarly, he said, “Protecting civilians is a good thing. It is not a bad thing that we have reduced the number of civilian deaths in warfare, and Israeli officials will tell you they are revising their doctrines in order to possibly minimize the harm to civilians.”
Questioned about Israel’s military presence on the West Bank, Stern said, “The West Bank is clearly occupied territory…. Occupied territory is defined by international law as territory that is taken from another nation. The Israeli government takes the position that it was not taken and therefore not subject to the Geneva Conventions. Most of the world, including the United States, takes the position that the West Bank is occupied territory because it was taken from Jordan.”
The distinction is important, he said, when it comes to movement of settlers into the area.
“If the West Bank is not occupied territory, that prohibition doesn’t apply and the settlements are legal. If it does apply, the settlements are not legal. That is the argument,” he said.