The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.

Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”[3]

There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.

Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.

Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.

Effects of UN recognition on the legal status of Palestine

Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.

According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.

If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.

Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.

Effects of UN recognition on the legal rights of Palestinians

Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.

I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.

Effects of UN recognition on the legal status of the Israeli occupation

A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.

Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.

Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.

Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.

Effects of UN recognition on Palestine’s bilateral negotiations with Israel

The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.

There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.

Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.

Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.

[2] According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).

[3] Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).

The controversy surrounding the case stems largely from the circumstances leading to Abu Sisi’s detention: according to credible reports, he was abducted by Israeli agents from a train while visiting his wife in Ukraine. The similarity in the fates of their loved ones, both abducted and detained (or, in the words of some, kidnapped) by enemy forces in the course of Israeli-Palestinian hostilities was surely not lost on Shalit’s father or Abu Sisi’s wife, who spoke by phone earlier this week.

Disregarding for the moment the apparent Israeli violation of Ukrainian sovereignty and the corresponding breach of art. 2 of the United Nations Charter, which will surely have diplomatic repercussions for Israel if the reports are shown to be true (Ukrainian Prime Minister Nikolai Azarov said on a recent visit to Israel that he “doesn’t want to imagine” that possibility), I wish to consider here the legality of abduction missions within the framework of international humanitarian law (IHL) generally, and as applied to the Israeli-Palestinian conflict specifically.

To begin with, it is worth briefly considering whether and to what extent IHL is actually an appropriate normative framework on which to base this analysis. A far more exhaustive discussion on this question can be found in the 2005 Targeted Killings decision of the Israeli High Court, but two key points should be noted : 1) The ongoing hostilities being waged between Israel and the disparate Palestinian factions, most notably Hamas, are of sufficient intensity and severity to be regulated by IHL, which is the primary body of law regulating the conduct of armed conflict, until such time as the occupation comes to an end (art. 3(b) Additional Protocol I). 2) An armed conflict which involves military occupation is automatically characterized as an international armed conflict (common art. 2, Geneva Conventions), meaning that the entire body of IHL, including all of the Geneva Conventions, applies to the situation in question.

IHL recognizes that in the course of hostilities, combatants may be detained by an adverse party; in an international armed conflict, combatants who qualify for prisoner of war status under art. 4(A) of Geneva Convention III are entitled to the protections of that Convention, whereas those who do not are entitled to certain minimum protections under art. 75 of API (to which Israel is not a party, but many of whose provisions—including the aforementioned—in any event reflect binding customary law). None of these protections preclude prosecution for terrorism offenses (which in IHL parlance generally constitute war crimes), subject to the procedural guarantees of art. 75(4) API (in the case of international armed conflicts) and the far more limited protections of common art. 3 (in the case of non-international armed conflicts).

While it is relatively clear from the above that the detention of enemy combatants is tolerated under IHL, some scholars have gone further and argued that common art. 3 in fact authorizes the detention of enemy combatants by listing it as one of the mechanisms by which combatants can be placed hors de combat. In Hamdi v. Rumsfeld, the US Supreme Court affirmed that, in its understanding, the right to detain enemy fighters is inherent in the use of armed force.

According to the guidelines published by the International Committee of the Red Cross (ICRC), members of non-state organized armed groups which are a party to the conflict may be targeted by the adverse party in the same manner as combatants belonging to state armed forces; that is, they can legitimately be targeted at any time while the conflict is ongoing, whether they are actively participating in hostilities or not, subject to the principles of precaution and proportionality. In contrast, enemy civilians may only be targeted if and for such time as they directly participate in hostilities (art. 51(3) API). According to the ICRC, the difference between civilian attacks and those of organized armed groups is that the former are inherently spontaneous, sporadic, and unorganized. While for targeting purposes the ICRC guidelines treat anyone as a member of an organized armed group whose continuous function involves taking direct part in hostilities, US courts have extended membership in an armed group to anyone who “receives and executes orders from the enemy force’s combat apparatus.”

Given that Hamas regularly engages in attacks against Israel of some intensity, that it has an organized leadership structure, and that it purports to many of the functions of government, it can clearly be considered an organized armed group for the purposes of the ICRC guidelines on targeting. Any Hamas member who regularly participates in direct attacks against Israel may therefore be targeted at any point in the conflict, but the US and ICRC approaches diverge on whether this should extend to Hamas members serving in support or logistical roles (though it is generally agreed that Hamas members who do not take orders from the “combat apparatus” of the organization may not be targeted except and for such time as they directly participate in hostilities).

All serving members of the Israeli Defense Forces, the latter being a state armed force, can of course be targeted at any time during the course of the conflict, with the exception of medical and religious personnel (art. 43 API). Off-duty reservists are to be treated as civilians.

If Abu Sisi is indeed a member of Hamas who has regularly taken part in (ICRC) or supported (US Supreme Court) attacks against Israel, then he and Shalit can both be considered to have been belligerents at the time of their capture and as such legitimate targets for abduction. Both he and Shalit were captured during the course of an ongoing international armed conflict (and the fact that Abu Sisi’s abduction took place “off the battlefield” and in the territory of a neutral state is irrelevant for the present discussion). Neither his abduction nor Shalit’s incurred collateral damage, and so both can be said to have been carried out with due regard for the principles of precaution and proportionality. And so—in contrast with Israeli abductions of Palestinians inside the Occupied Territories (which can arguably derive authorization from art. 78 of Geneva Convention IV), or certain other famous Israeli abductions (such as that of Adolf Eichmann, which took place outside the context of an armed conflict)—I can see no basis in IHL for drawing a legal distinction between the abductions of Abu Sisi and Shalit. Both, under IHL, are equally legal.

Of course, this discussion would be incomplete without noting that IHL also obliges the belligerent parties to accord enemy detainees the protections stipulated by the Third Geneva Convention, art. 75 API, or common art. 3 as the case may be; while Israel so far appears to have adhered to this obligation, Hamas (in this matter as in all others) has shown absolutely no respect for or intention to abide by the laws of war.

Self-determination is understood as the right of all national groups (in practice, groups recognized as such by themselves and by others) to be governed and represented (popularly or otherwise) by a sovereign state (or federation) functioning as the highest source of domestic legal authority. Affirmation of the right to self-determination is prominently featured in art. 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is deemed to be an inherent right; that is, it does not derive from the international legal order but rather is presupposed by the latter: art. 1(2) of the United Nations Charter recognizes the principle of self-determination as a basis for the existence of the UN.

It is often assumed that the right to self-determination gives peoples living under foreign military occupation an absolute right to resist against the occupying power. It is interesting to note, therefore, that nowhere in international humanitarian law (IHL) – the primary body of law dealing with military occupation – can such a right be found or even inferred. Moreover, certain IHL provisions actually seem to preclude a general right to resist occupation. For example, IHL gives an occupying power not only the right, but the obligation to ensure public order in occupied territory (art. 43 of the Hague Regulations), and authorizes an extraordinarily wide range of powers with which to do so – including the right to detain people indefinitely without trial, subject to a right of appeal and periodic review (art. 78 Geneva Convention IV). Another indication that IHL precludes a general right to resist can be found in art. 4(A)(6) Geneva Convention III, which specifically withholds its protection from the inhabitants of an occupied territory who spontaneously pick up arms to fight off foreign invaders, even though it does protect inhabitants of a non-occupied territory who do so. Civilians living under occupation can be prosecuted for acts of resistance that are deemed disruptive to the security of the military administration (art. 64 para. 3 Geneva Convention IV), and they forego their protection from armed attack if and for such time as they take part in hostilities (art. 51(3) Additional Protocol I). In declining to recognize a right to resist occupation, the Dutch Special Court in Re: Christiansen noted, “the civilian population, if it considers itself justified in committing acts of resistance, must know that, in general, counter-measures within the limits set by international law may be taken against them with impunity.”[1]

It is crucial to note that occupation per se is not a crime under international law, and that the IHL provisions referred to above, pertaining as they do to jus in bello, apply equally to situations of legal and illegal occupation.[2] Further, while the International Court of Justice has repeatedly affirmed that international human rights law does not cease to apply during wartime, as lex specialis IHL principles should supercede any inconsistent principles deriving from other normative frameworks – including, it would seem, the right to self-determination (which is not listed as a non-derogable right under art. 4(2) ICCPR).

This does not mean that resisters to occupation are never entitled to any protection under IHL. Where resistance has reached the intensity of an armed conflict, art. 4(A)(2) of Geneva Convention III does grant that members of “organized resistance movements” connected with one of the parties to the conflict (that is, one of the belligerent states[3]) are entitled to prisoner of war status, meaning that they cannot be prosecuted merely for having participated in hostilities. However, Jean Pictet of the International Committee of the Red Cross clarifies that this provision should not be interpreted as conferring a general right to resist, the crucial point being that it only grants protection to individuals belonging to one of the belligerent parties and not to the population as a whole.[4] His commentary make it clear that the drafters of the Geneva Conventions, like the court in Christiansen, did not recognize a general right of resistance for occupied populations. To benefit from art. 4(A)(2) protection, combatants are required to be under the command of a person responsible for his subordinates, wear a distinctive and recognizable sign to distinguish them from non-combatants, carry their arms openly, and comply with the rules and customs of war. Art. 44(3) of Additional Protocol I provides limited exceptions to the requirement for combatants to always distinguish themselves from civilians, which have been understood to apply specifically to situations of national liberation and resistance to occupation from whom wearing uniforms may not always be practicable.[5] This leniency has the effect of making it harder to prosecute certain categories of individuals resisting occupation simply for taking part in hostilities (resisters can still of course be attacked during the course of hostilities and can be prosecuted subsequently for any other violations of domestic law or IHL – or can even be detained indefinitely if this is deemed imperative for security, as noted above).

These limited and rather weak protections leave open the question, what’s an occupied people to do? Can peoples’ right to self-determination be abrogated indefinitely by an occupying power? Surely IHL cannot be interpreted as providing implicit acquiescence to permanent situations of colonialism and illegal occupation.

I believe that a limited legal right to resist occupation, if one can be said to exist at all, can only be drawn directly from the principle of self-determination. As noted at the start of this article, self-determination of peoples is not merely a substantive guarantee of international human rights law; it serves, in many respects, as the foundation upon which all of international law is based. Therefore, one might reasonably argue that no part of international law can be construed as negating this principle. It can be speculated that the drafters of the Hague and Geneva Conventions viewed occupation as an inherently transitory phenomenon and did not consider the possibility of “permanent” occupation. But where occupation is entrenched or enduring to the point of having attained a degree of permanence, inasmuch as it effectively denies (rather than merely suspends or limits the exercise of) a national group’s right to self-determination, I think it might reasonably be argued that the people deprived thereof cannot be denied under international law the right to take steps (not contrary to IHL) in order to assert this right.

[2] Ibid. at p. 3.

[3]Pictet, J, The Geneva conventions of 12 August 1949: commentary (International Committee of the Red Cross, 1958), at p. 57. Retrieved from http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-III.pdf.

[4] Ibid. at pp. 57-58.

[5] http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter33_rule106

The modern laws of warfare were born in the nineteenth century from Europe’s fears “about the escalating severity of war”[1]. As the decades passed, war’s means, methods, aims and tactics have changed. Suicide bombers that melt into the civilian population have replaced ordered battalions of uniformed soldiers. Strikes from unmanned Predator drones have supplanted direct confrontations on the battlefield. Wars are fought not only against states, but also against colonial domination, racist regimes and abstract social phenomena, most notably the “war on terror”.

The laws of modern warfare are enshrined in the Geneva Conventions of 1949 and their Additional Protocols. Since the First Geneva Convention was signed in 1864, international humanitarian law (IHL) has evolved in response to the changing nature of armed conflict. Protocols I and II recognize that war is not limited to a conflict where both parties are states, effectively expanding the scope of IHL to include internal armed conflicts and “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”[2].

The nature of war however, continues to change faster than customary and conventional law. The cardinal aim of humanitarian law – to protect the victims of war – is jeopardized as gaps in protection emerge. It is often said that military forces are trained to fight the last war, not the next one[3]. Similarly, IHL is necessarily reactive; it develops in response to conflicts past.

As the nature of conflict changes, are the minimum standards of protection offered by IHL enough to achieve its primary aim? Is there a role for the aspirational provisions of international human rights law?

IHL and human rights are two distinct yet complementary regimes that govern the taking of lives. Though the former is a set of minimum standards of conduct, whereas the latter grants individual self-executing rights[4], the interests they seek to protect are inherently similar – often appearing “harmonious or even redundant”[5]. Why not use human rights to supplement the protection offered by IHL?

Traditionally, humanitarian law is defined as lex specialis to human rights, in congruence with the opinion of the International Court of Justice in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Human rights apply in times of war, but should they contradict rules of IHL, then lex specialis generalibus derogat[6]; humanitarian law takes precedence.

Many authors, Marko Milanovic among them, suggest that this is an oversimplification. The relationship is far more complex than one of lex specialis and “cannot be explained by the single comparison of the general to the special”[7].

The 2006 Targeted Killing decision issued by the Israeli High Court of Justice (HCJ) is a noteworthy example of an attempt to further “humanize” IHL. In this case, the HCJ found that the Israeli state policy of targeted killing of Palestinian militants in the Occupied Territories could be considered legal if conducted according to the following four conditions:

“[1] The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy.

[2] A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus if a terrorist taking a direct part in the hostilities can be arrested, interrogated, and tried, those are the means which should be employed.

[3] If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.

[4] Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.”[8]

It is interesting to note that of the four conditions, only one ([4] the requirement for proportionality) is based on principles of humanitarian law. The remaining three conditions (particularly notions of absolute necessity, recourse to due process before resort to force, and requirement of a non-lethal alternative) are derived from human rights law. Human rights norms are not being used to interpret IHL. In a rather revolutionary manner however, they are being used to restrict the application of a humanitarian norm.

This decision arguably enhances protection of the right to life in the context of armed conflicts. Is this humanization of IHL is a good thing? The broader applicability of the HCJ’s decision should also be considered. Is direct application of human rights law only justified in the unique case of prolonged belligerent occupation? Israel after all, “has a wide variety of options it can use in order to deal with terrorists, and this … augments the obligations it has under human rights law”[9]. In the absence of such a prolonged occupation, would human rights law necessarily impose such obligations restricting a state’s freedoms under international humanitarian law?

[2] Art. 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 [Protocol I].

[3] Evan Thomas and John Barry, “The Fight Over How to Fight” Newsweek (24 March 2008), online: <http://www.newsweek.com/id/123479>.

[4] Provost, René, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 30.

[5] William Abresch, “A Human Rights law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, (2005) 16 Eur. J. Int’l at 743.

[6] Nils Melzer, Targeted Killing in International Law. Oxford: Oxford University Press, 2008 at 382.

[7] Milanovic, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, 866 Int’l Review of the Red Cross at 391.

[8] Supra note 7 at 390.

[9] Ibid at 392.