Eliezer Finkelman

International Humanitarian Law Applied to Hamas and to Israel

“Is Hamas Bound by International Law? What to Know.”

Amanda Taub ran a column (in the New York Times “The Interpreter” on June 20) explaining how international law works.

Her main points:

  1. International law applies to non-state actors as well as to nation states. Both equally have to follow international law.
  2. Violations by one party do not change the obligations of the other party. For example, “even if one side uses human shields, that does not exempt the other side from its obligations: Civilians are entitled to protection even if one party to the conflict has already endangered them by violating the law.”
  3. These laws govern actions in war, not the reasons for the war.
  4. There are no cops to enforce international humanitarian law. The laws rely on diplomacy and negotiation.  “They create standards for legitimacy that can became of source of external and internal pressure on armed groups.”
  5. The International Criminal Court arrest warrants do not expire. Eventually the perpetrators might face justice.

Taub does readers a service by explaining the applicability of international humanitarian law to wartime actions in clear, understandable terms.

But these clear rules do not command universal agreement.  Consider the alternatives:

The first applies the same constraints to non-state actors as to nation states.  States have big advantages in military matters, with standing armies, military manufacturing, and tax revenues to support them.  If non-state actors restrict their own tactics, they fight at a great disadvantage against nation states, so non-state generally have to fight asymmetric wars.  Those who admire non-state actors might reject the demands of international humanitarian law.

The second requires those who fight against an outlaw army to themselves follow the law.  It puts an intolerable burden on those who fight against outlaw armies.  Suppose a military group, side A, deploys fighters in civilian clothes, thus breaking international humanitarian law.  Even so, according to international humanitarian law as Taub presents it, the opposing side B must uphold all protections for civilians.  Thus when side A sends out fighters in mufti, side B must protect them as civilians until the fighters of side A display their weapons and begin shooting.  Then side B can shoot back.  Side B has to absorb the first blow, or be found guilty of breaking international law.  Immediately after a skirmish, the fighters of side A conceal their weapons, and side B must again protect these fighters, or be found guilty.  International law can demand that behavior of side B, but side B cannot reasonably comply.

Note, also, published analyses of a conflict that devote a half-sentence to the brazen attacks on civilians of side A, and multiple pages to Talmudic conceptual analysis of side B.  These inevitably give the impression that side B has offended much  more egregiously than side A, which merely ignores international law.

The third rule applies international humanitarian law only to the prosecution of war, and not to its causes.  This seems entirely reasonable.  Armies nearly always have a narrative that justifies their use of violence.  If international law hopes to restrain armies from committing atrocities against civilians, it has to apply even to armies that fight for a just cause, or what seems a just cause; otherwise, the restraints would never apply.   Note, however, a widely-chanted alternative to the third rule: Oppressed people must overthrow their oppressors “by any means necessary.” According to this perspective, moral constraints simply do not apply to freedom fighters.  They literally are justified in committing any crime in pursuit of liberation.

The fourth rule declares that the international community can exert diplomatic pressure towards observance of humanitarian law.  In practice, the international community includes powerful states that totally ignore humanitarian concerns, or that weaponize international humanitarian law cynically against selected targets, or that richly reward allies for blatant attacks on civilians.  In this theory, the International Criminal Court could become a force for persuading military organizations towards moral standards.  In practice, the ICC, like other courts, exists in a political framework.  A look at which causes come before the ICC, and which do not, shows that political considerations determine its work much more than legal ones.  Countries and non-state actors with powerful friends commit obvious crimes with impunity.

Charged with enforcing an unrealistic ethic, which no military can actually put into practice, the ICC can prosecute any side in any conflict.  The court does charge those military groups that have political enemies.  That combination hardly lends itself to moral suasion towards compliance with a realistic law of war.

H. L. Mencken reputedly wrote that “For every complex problem, there is a answer that is clear, simple, and wrong.” It seems like international humanitarian law, as presented so clearly and simply by Amanda Taub, is wrong.

About the Author
Louis Finkelman currently resides in Beit Shemesh, Israel. Until recently, he taught Literature and Writing at Lawrence Technological University in Southfield, Michigan, and served as half the rabbinic team at Congregation Or Chadash in Oak Park, Michigan.
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