ISRAEL AND INTERNATIONAL LAW

Interview with Andreas Paulus, Professor of International Law at the University of Munich

[This interview published in: tagesschau, 7/14/2006 is translated from the German on the World Wide Web, http://www.zeit-fragen.ch/index.php?id=919&type=98.]



[As a reaction to the kidnapping of soldiers, Israel attacked Lebanon and threatens to destroy its infrastructure. Is Israel’s action consistent with international law? The jurist Andreas Paulus describes Israel’s collective punishment as “very problematic.”]



tagesschau: Mr. Paulus, Israel is intent on destroying the infrastructure in Lebanon with targeted attacks. How do you judge this from an international law perspective?

Andreas Paulus: The use of military force without approval of the UN Security Council is prohibited in international law. By way of exception, the right of self-defense allows the unilateral use of military force against armed attacks from the outside. Before sanctioning Israel’s right of self-defense on account of the abduction of its soldiers by Hezbollah – which is not unproblematic because of its non-governmental character -, the proportionality criterion must be observed. Considering this, it is very questionable whether a war can be launched as a reaction to an abduction and rocket attacks of unknown origin.

“ONLY MILITARY TARGETS MAY BE ATTACKED”

Q: How should Israel’s conduct be judged by international law?

Andreas Paulus: Israel’s conduct is extremely problematic by international law. There is a second limitation on the use of military force. Humanitarian international law is in effect during an armed conflict: Only military targets may be attacked. The destruction of civilian targets is not allowed. The infrastructure can serve both civil and military objectives. In Lebanon, there is the special case that the state of Lebanon is not at war with Israel. Rather Israel is attacking a terrorist group in this state. Making the whole civil infrastructure into a target is extremely problematic.

Q: Civilians in Lebanon have been casualties of the Israeli bombardment. The population was warned beforehand through leaflets by the Israeli military. Is that enough?

Andreas Paulus: That is one of the necessary precautionary measures that must be taken to avoid civilian casualties. What is necessary in the individual case depends very much on the circumstances.

“ISRAEL CAN ARREST THOSE ACCUSED TO TERROR”

Q: Previously Israel set its sights on the buildings of the Palestinian Hamas government. Is there a justification for that?

Andreas Paulus: Israel’s justification is that this government while elected democratically organized terror. Israel is the occupying power especially in West Jordan responsible for security. Therefore it can arrest those accused of terror and subject them to a legal trial. Proportionality should also be considered here. The Fourth Geneva Convention that regulates such occupation situations requires a legitimate suspicion of an activity endangering security. That this is true for all the arrested Hamas Palestinian officials is very dubious.

Q: Are the representatives of Hamas and Hezbollah actually terrorists according to international law who can be systematically killed?

Andreas Paulus: One cannot say that across the board. A concrete substantiated suspicion against individuals is necessary before persons can be taken into custody as dangers to security. In addition, whether specific killings of terrorists can be resolved in the extreme case is very controversial. This is generally only considered when one of these persons poses an immediate danger of a terrorist attack.

“THE LAW ALSO PROTECTS TERRORISTS”

Q: Israel is in an extraordinary situation surrounded by enemies who more or less openly urge and intend her obliteration. Can international law do justice to this special situation?

Andreas Paulus: The problem in the Middle East is that one party, the terrorists, did not want to hold to the rules from the start. Observing and enforcing international law is difficult. On the other side, the US Supreme Court in the Hamdan decision established there are minimum rules in humanitarian international law that must be observed under all circumstances and that even protect terrorists in the extreme case. The military tribunals in Guantanamo were not an exception. The general political situation cannot be a justification for Israel to violate these rules. This is also true for her antagonist.

Q: What is the consequence when Israel violates rules?

Andreas Paulus: The consequence is that Israel’s conduct can be branded as illegal – before international and national courts, above all before the world public. The land can also be driven into political isolation for ignoring international law standards.

Breaking a rare quiet morning without rocket barrages throughout northern Israel, Hizbullah resumed its attacks on Monday afternoon, firing around 70 rockets.

A forest fire raged near Kiryat Shmona as a result of the attacks, destroying 2,000 dunams of land. Since the fighting began, 500,000 trees were burned by blazes.

One person was lightly wounded in Shlomi; rockets were also fired at the Krayot (Haifa Bay area), Acre, Nahariya and Safed. Two people were lightly wounded when the barrage struck Tiberias soon after.

A rocket scored a direct hit on a home in the Kiryat Shmona area shortly thereafter, although no one was wounded in the incident.

Altogether, MDA teams treated 49 people on Monday as a result of Katyusha attacks on the north. Thirteen victims were lightly wounded, and the rest were treated for shock.

Over 90 rockets were fired at northern Israel on Sunday, the 12th day since the war in the north erupted. In total, 93 people were wounded, most of whom suffered from shock.

Two people were killed in a barrage that struck Haifa in the morning hours.

The rocket that fell in the courtyard of their large apartment complex in Haifa late Sunday afternoon caused the Sabag family to pack its bags and head for the home of relatives in Rishon Lezion.

"I'm not a hero," said Nurit Sabag as she sat on her front lawn while police and emergency personnel cleaned up the broken glass and shards of metal from the missile.

The hit to the complex was one of more than 14 rockets that Hizbullah successfully launched from Lebanon into Israel's third largest city on Sunday.

Earlier in the day, a rocket killed Shimon Glickglich, 60, as he drove his car on a main street in the city. A second rocket that fell on a carpentry shop in Kirtat Ata killed Haviv Ova'ad, 48.

Upwards of 14 people were wounded in the attacks, including one seriously and two moderately.

There were so many successive warning sirens that, in a number of instances, rescue and clean-up crews who came to the scenes of the rocket attacks had to race for cover, even as they worked to clear the sites of the initial attacks.

But no siren rang out around 5 p.m. on Sunday afternoon to warn the Sabag family, or the dozens of others who live in their neighborhood near the sea in Haifa, that a rocket was about to fall. Shir Sabag, 13, and her older sister Shavi said that the absence of a warning explained why they were not in the protected room when the rocket hit a tree, a gas balloon and the wall of the apartment building.

When they heard the loud explosion they first raced to a safe spot in the house, but when informed that the rocket might have hit a gas balloon they ran out of their home in the bottom corner of the complex to a spot several doors away from the attack.

They told The Jerusalem Post that they had spent their days and nights in fear since the rockets first landed in the city almost two weeks ago, but that it was their mother who was determined to stay.

"How long can you spend living in someone else's home?" asked Nurit. "I thought it was better to be here." Now she understands she was mistaken.

The youngest daughter, five-year-old Shoval, was at the hospital getting stitches for a small head injury unrelated to the rockets when the rocket struck. Her first question upon arriving home with a small bandage on her head was, "Are our bags packed?"

But not everyone was ready to leave. Even though the rocket shattered all the windows in her home, Marina Gzhibovsky said she was determined to stay. Unlike her husband, who headed out to his job as a construction worker, taking his 16-year-old son along with him, she listened to the Home Front Command instructions that she remain at home.

Typically when a warning siren goes off, she said, she and her neighbors head into the small stairwell outside her apartment door rather than racing for the communal shelter nearby.

"I didn't leave the house and see, I was hit anyway," she said as she looked out her window.

An immigrant from Russia, she considered it lucky that her son was not home. Since the rockets started falling, she said, he too had tried to stay inside and had spent many hours on his computer in one of the rooms damaged by the rocket.