Dedicated critics who would condemn Israel with their dying breath don’t much care how they do it. The laws of war, a modified relic of 1949, are their weapon of choice. And a crippling one it is; the Geneva Conventions could be deliberately designed to entrap the Israeli military.
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” You may wonder why institutional critics – the State Department, Brussels and UN forums – insist that Jewish "settlements" are illegal. Well, it’s because policy-makers and diplomats plausible only to those who feel that Israel is detestable, took a law harking back to WW2 and grafted it on people of two religions in conflict over one piece of land.
"Settlements" - Jewish communities in the biblical heartland of Judea and Samaria - are a special sore point. Israel’s different leaders – elected more honestly than the sitting American President – authorized some 100 "West Bank settlements" so cocking a snoop at allies who pre-booked territory for their precious two state solution. They desisted tugging the tiger’s tail over the legality of "settlements". What’s to be gained? Exposing the fiction that they violate international law could be toying with a backfiring gun. Besides, the super lie spreaders can’t help knowing that no Israeli warlord in the mould of Stalin or Hitler made a decision to “deport or transfer” Jews to the "West Bank" and Gaza. On the contrary: Israeli Prime Minister Ariel Sharon transferred Jews, forcibly, out of Gaza.
Other laws of war are meant seriously. They are not just applicable to Israel, but torment her like the mosquitoes on Galilee. One law criminalizes the intentional killing of civilians. A second, more subjective if that is possible, prohibits disproportionality in response – more killing and destroying than was necessary. Israel’s manic persecutors love to roll the name for such crimes off the tongue: ‘Crimes against Humanity.’ Every time the IDF ‘flattens’ Gaza it gets condemned for crimes against humanity. Even ethnic cleansing, in gravity second after genocide, must be quashed. Boycotters, for one, look on the ‘Zionist project’ as one big ethnic cleanser.
Israel fights the troubling laws on different fronts. On one it contends with partial adjudicators of vague protocols, mainly the UN Human Rights Commission. A second front involves responding to rocket and terror attacks by favoured underdog groups, given by the partial adjudicators a wide allowance. No: given a free ticket by comfy armchair and ivory tower critics prone to look down disgusted noses at white Jews killing dark Muslims lobbing stones. If that nonsensical term “Social Justice” has meaning it means that facts are what IDF investigators say they are while correct ‘truths’ have passed Twitter, Facebook and Wiki factchecking.
Groups like Hamas and Islamic Jihad know a gift when they see one. The laws of war, an albatross around the neck of a conscientious IDF, are for non-state actors a dandy lever. The more civilians get killed in clashes the better for warlords to give Israel skunk status in the court of public opinion.
Odd bedfellows interpose between Israel and her attackers. The Laws of war, progressive ideals and the International Committee of the Red Cross make a fearsome axis. It puts Israel front of stage in a costume drama conflict from which a plotted victor emerges.
Jenin on the "West Bank" is an apt place to ponder the drama.
The Jenin ‘refugee camp’ is a hotbed of jihad, terror plots and manoeuvres to dunk Israel’s name in the sewer. The Park Hotel Seder massacre – anti-Semitic terror without parallel – was cooked up in and executed from Jenin. The ‘great hoax massacre’ – a media stunt without parallel – was enacted within Jenin’s macabre confines. An Al Jazeera reporter and a teenager killed there in fire fights towards the end of 2022 are emblematic of decrepit protocols deployed to hobble Israel’s high tech, high morale military machine.
Consider a real golden oldie, Article 51 (3) of the Geneva First Protocol. “Civilians shall enjoy the protection afforded unless and for such time as they take a direct part in hostilities.” Civilians can decide to take part in hostilities! One wants to ask if thereupon they slip into the military drill worn by the regular force. But they can’t do: the regulars don’t wear army drill. There nothing to make civvies look different from soldiers to help out an IDF trooper, in identifiable battle gear.
Note the difficult terminology in the clause about that curious hybrid, ‘civilian fighters.’ ...Until “such time as they take a direct part in hostilities.” The IDF trooper must hold fire to give the civilian time to transition into a fighter. He must twiddle the trigger finger until the civvy begins to “take a direct part”. What the hell is “a direct part”? Taking up a weapon? Signaling IDF positions to the other side? A slight move for what could be a concealed weapon? Standing close to a rocket launcher? Observing the firefight from the vantage point of a rooftop? Videoing the action while excoriating the IDF into a ‘mike’? After all, Qatar’s network Al Jazeera is a mélange of propaganda and incitement.
The clause requiring “taking a direct part” expects the IDF to settle three things before firing a round in anger. Is the civilian (1) taking part in hostilities? (2) directly taking part? and (3) continuing to directly take part? Even then we are not quite ready.
“In regard to the ‘directness’ of participation”, the scholar Gasser has noted, “the term ‘direct’ should not be understood too broadly. Not every activity carried out in war is a hostile act.” (D. Fleck: The Handbook of Humanitarian Law in Armed Conflicts, 32 (1995, p. 232)
Who shall teach the IDF not to jump the gun, not to be trigger happy? The ICTY (International Criminal Tribunal for Yugoslavia) has put up a hand. The situation of the victim at the time of being shot shall decide if he or she was taking part in hostilities. Relevant factors are what the victim was doing; whether or not was carrying a weapon; the age, clothing and gender of the victim. Membership of an armed force could be a strong indication that the victim was directly taking part in hostilities, though is not proof on its own. Overall, “whether a person is a combatant has to be determined on a case-by-case basis.” (ICTY, Case No. IT-01-48-T, Judgment, 16 November 2005, par 34)
When next the toll of civilian killing by Israel is announced we’ll know how the counting was done – or should have been. The compiler – often an Israeli or Palestinian human rights outfit getting money from people or a country with no love for Israel – had examined each and every fatality and ticked three boxes. If three boxes are not ticked then a civilian that was not taking a direct part in hostilities was killed. Then and then only, Israel committed a war crime. And so the toll is computed and a ‘dossier’ sent to the peoples’ court of opinion. And the court pronounces ‘credible evidence of war crimes.’ And we must accept that somewhere sometime someone failed to tick three boxes.
Box number 3 especially is tricky. The IDF had to wait and see if the directly participating civilian was “ongoing”. Could be that he or she will put down the weapon soon enough; will get down from the roof; will stop videoing the action.
An American diplomat once said that, “Applying different standards to Al Qaeda does not abandon Geneva, it recognises that we face a stateless enemy never contemplated in the Geneva Conventions.” No diplomat I know of gave Israel the green light to apply different standards to underdog terrorist groups.
Professor Michael Lynk typifies high powered lawyers policing and prosecuting Israel on behalf of the United Nations. He acted as the Human Rights Commission expert on call.
“The most recent violence has a depressingly familiar pattern to it. Israel and Palestinian armed groups in Gaza exchange missiles and rockets following dispossession and the denial of rights in the occupied Palestinian territory, with Israel’s far greater firepower inflicting far higher death tolls and injuries and a much larger scale of property destruction. Israel’s actions to stop the rocket fire from Gaza “constitute indiscriminate and disproportionate attacks against civilians and civilian property. These attacks likely violate the laws of war and constitute a war crime.”
The Defence for Israel in the Court of Public Opinion:
My Lord, the statement of the witness is pockmarked with fraud.
-Prof Lynk’s “Palestinian armed groups” are defined as terrorists by, among others, the US, the EU, Japan, UK, Jordan, Israel – and my Lord, by his own government of Canada!
-Armed groups and Israel “exchange rockets,” he said. My Lord, the American fleet in Pearl Harbour exchanged rockets with Kamikaze pilots.
-(Bench interrupts) You make a wild analogy, do you not? You don’t mean to tell the court that the narrative is quite so ludicrous?
-My Lord, I do. The next narrative is more grotesque. The professor makes a pineapple equal to a banana. He may enlighten the court. I for one cannot wait to hear the explanation why Gaza’s “armed groups” and the IDF are militaries of equal legitimacy or, to his mind, illegitimacy. (From the Bench: Continue if you please)
-My Lord, in one breath the prosecution speaks of Islamist tyrants that seized the Gaza strip in a violent coup on the one hand, and Israel on the other. In Israel you may speak your mind more freely, my Lord, than you can in Professor Lynk’s own Canada. In Israel you won’t be ‘cancelled’ for saying that Wokeism is racist. You won’t be branded a hater for denying that men give birth, or for insisting that humans, like creatures, can have only two genders: male and female. (Incredulous laughter from the Bench)
-The Prosecution spoke of “The occupied Palestinian territory”. He may consider that you preside over a kangaroo court, my Lord. I’ve more respect. When did case law, I should like to know, become an optional extra.
-Prosecution spoke of Israel “inflicting far higher death tolls and injuries and property destruction.” The devil, my Lord, is ever in the detail, and he ran scared of detail. How many in the death toll were combatants plus civilians acting as human shields? How many of the properties destroyed were used for rocket attacks, the propaganda war and for shelter for combatants?
-Israel’s “indiscriminate and disproportionate attacks against civilians and civilian property”. My Lord, the prosecution denigrates the dignity of your court. He wants to air personal feelings, well and good. CNN is one of many available venues. Surely entertainment is not for a court of law to provide.
Steve Apfel is an authority on anti-Zionism and a prolific author of fiction and non-fiction. His blog, ‘Balaam’s curse,’ is followed in 15 countries on 5 continents