Israeli legal scholar icon discusses where NGOs and media get international law wrong ~ EoZ

Monday, January 16, 2023

Israeli legal scholar icon discusses where NGOs and media get international law wrong

The Second IDF International Conference on Laws of Armed Conflict (LOAC) took place in Tel Aviv in April, 2017. The keynote address delivered by Emeritus Professor Yoram Dinstein, former Tel Aviv University president who is recognized as one of the world's leading experts on the laws of armed conflict.

His speech is an excellent overview of the topic. It was published in the Vanderbilt Journal of Transnational Law.

Here are some excerpts where he describes how "human rights" NGOs and the media do not understand the functions and importance of the laws of armed conflict.

Here he discusses the differences between the laws of war and human rights law.

Another pernicious confusion is spawned by the dual existence in armed conflict of human rights law and LOAC. Naturally, there is some synergy and even a degree of overlap between the two branches of law. The prohibition of torture, which is reiterated in both bodies of law, is a leading example of such overlap. But human rights law and LOAC do collide head-on in certain critical areas. The archetypical case in point relates to recourse to force. Put in a nutshell, the pivotal question is whether lethal force can be used as a first resort or only as a last resort. In ordinary law enforcement (police) action in peacetime, lethal force can be employed against law-breakers only as a last resort. Conversely, in the course of hostilities forming part of an armed conflict, lethal force can be used against enemy combatants as a first resort on a 24/7 basis. When human rights law and LOAC clash - as they do in this respect - LOAC must prevail over human rights law because - as recognized by the International Court of Justice and other tribunals - it is the lex specialis.

The trouble is that zealous advocates of human rights law are not willing to yield the moral high ground. They behave like the high priests of a Holy Gospel who regard any deviation from their received dogma as apostasy. They fail to appreciate the special nature of armed conflict and therefore contest the overriding force of LOAC. They ignore the fact that LOAC - which is directly responsive to the unique features of warfare - is a product of a pragmatic compromise between military necessity and humanitarian considerations. They think that, by rejecting military necessity, they will lead us to utopia. But what they are liable to bring about is dystopia. If international law were to ignore military necessity, military necessity would ignore international law. Belligerent Parties would simply shed off any inhibitions in the conduct of hostilities.

Similarly, here he talks about how theoreticians and human rights law experts do not understand the purpose and use of LOAC - and indeed how their theories are not only wrong but ultimately destructive.

Frequently, there are passionate debates as to whether what we are doing in war is in full harmony with LOAC. As a rule, when the law is equivocal or controversial, the legal literature can become a useful tool in identifying and interpreting normative obligations. I myself regularly contribute to that literature, and I am not inclined to trivialize its potential import as a roadmap for practitioners. All the same, it is necessary to acknowledge the existence of a cottage industry of law review articles trying to recast LOAC, reconciling it with conditions of some fantasy land in which war can be conducted without putting any civilian in harm's way. These writings are produced not only by preachers of human rights ascendancy but also by LOAC theorists who are constantly citing each other without much concern for battleground realities (of which they seem to know very little). For persons familiar with general state practice, this is a matter of bemusement or perhaps even amusement. It is accordingly advisable to keep in mind that LOAC - just like other branches of international law - is created solely by states, in treaties or in custom. The legal chatter of armchair quarterbacks is no different from static in a telecommunications system. It must be separated from the genuine sound of law.

How many times have we seen the media claim that what Israel does is "disproportionate" without knowing what that actually means in a legal sense?

Whereas a lot is being done by all modern armed forces to train soldiers, sailors, and aviators-especially officers of all ranks-in the intricacies LOAC, not enough is being done to instruct journalists as to what is permissible and impermissible in military engagements. Media reports are therefore frequently predicated on false assumptions as to the "do"s and "don't"s of warfare.

Dinstein talks a bit about how every new conflict spawns new areas of LOAC, with which Israel is unfortunately one of the leaders. Here he challenges the ICRC for not understanding that there is no clear distinction within armed groups between "civilian" and "militant."

[There is a] broader challenge to LOAC presented by civilians directly participating in hostilities. The failure of an ICRC endeavor to engender a consensus on the range and repercussions of this omnipresent phenomenon has left much of the relevant law shrouded in doubt. Suffice it to mention the controversial ICRC advocated requirement of continuous combat function against three different backgrounds:

(a) The incidence of the so-called revolving door of "farmers-byday, fighters-by-night" and their susceptibility to attack at a time slot in between engagements in hostilities. The ICRC looks at every fraction of DPIH [direct participating in hostilities] activity separately. I (and others like me) highlight the continuum.

(b) The DPIH standing of members of organized armed groups who serve as cooks, drivers, administrative assistants, legal advisers, etc. In my opinion, it is wrong to discriminate between legal advisers in the government armed forces (like many present here)-who are categorized as combatants and are susceptible to attack-and those who are members of organized armed groups and are consequently exempt from attack according to the ICRC. For sure, organized armed groups are not inclined to issue membership cards. But for that very reason, the expectation that in the thick of battle a distinction can be made between actual fighters and accompanying support staff is illusionary.

(c) The DPIH status of those who orchestrate behind the scenes the combat activities of others through military planning, training, and recruiting of personnel. Those who fire arms are often pawns manipulated by others who are literally calling the shots while purportedly belonging to a political rather than military wing of the organized armed group. The problematics of these and other outstanding DPIH issues is fraught with battlefield dilemmas that refuse to go away.

Dinstein is hardly a hawk. Even in this speech, he criticizes Israel's policy of demolishing terrorist houses as a violation of LOAC, although he understands that one must find disincentives for suicide attackers; he prefers sealing up the houses of their families instead.

Living in Israel, he knows how LOAC must evolve to handle new situations and that Israeli rights in war are no less than the rights of Palestinians or Hezbollah - something that eludes "human rights experts" like Ken Roth.

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