IV. LEGAL STANDARDS
In any armed conflict the right of the parties to choose the methods and means of warfare is not unlimited. On the contrary, those choices are strictly regulated by the customs and provisions of the law of armed conflict, referred to here as international humanitarian law (IHL). 102 IHL also regulates cases of total or partial military occupation, as in the case of the Palestinian territories. Against this background, certain episodes of violence that rise to the level of armed conflict are governed by general principles of the laws of war. Some of the rules of IHL form part of international customary law, which are binding on all states and also on non-state actors-in this case, Palestinian armed groups.103
Many rules of IHL have been codified in international treaties, such as the Geneva Conventions and their additional protocols. The Geneva Conventions have achieved widespread acceptance among states as authoritative standards of behavior for parties in situations of armed conflict, and have been ratified by more than 190 states.104 The 1977 Additional Protocols to the Geneva Conventions were negotiated at a diplomatic conference where representatives from non-state armed groups campaigning for national self-determination were also present, including the Palestine Liberation Organization (PLO).105 Many of the provisions are recognized as customary international law.
Obligations of the Palestinian Authority and Armed Palestinian Groups
The rules and obligations of IHL are clearest when applied to conflict between sovereign states. The responsibilities of non-state actors may differ from those of sovereign states, but non-state actors, too, have clear responsibilities under IHL. Many customary rules of IHL apply to all parties to a conflict, including non-state actors, provided that the confrontation is of an intensity that places it beyond the threshold of a mere disturbance.106
Although it is not a sovereign state, the Palestinian Authority has explicit security and legal obligations set out in the Oslo Accords, an umbrella term for the series of agreements negotiated between the government of Israel and the PLO from 1993 to 1996. The PA obligations to maintain security and public order were set out in articles XII to XV of the 1995 Interim Agreement on the West Bank and Gaza Strip.107 These responsibilities were elaborated further in Annex I of the interim agreement, which specifies that the PA will bring to justice those accused of perpetrating attacks against Israeli civilians. According to article II (3) (c) of the annex, the PA will "apprehend, investigate and prosecute perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement."108
Similarly, PA leaders, including President Arafat, have repeatedly pledged in meetings with international human rights organizations and in radio broadcasts, as well as in the Oslo Accords, that the PA intends to abide by internationally recognized human rights norms.109 In a situation of clashes that rise to the level of armed conflict, PA security forces and other organized factions that engage in armed actions should abide by fundamental principles of international humanitarian law. They are also obliged to ensure respect for such principles by armed groups operating from territory under their effective control.
The Palestinian Authority exists independently from the Palestine Liberation Organization. From 1974 to 1977, the PLO was one of several national liberation movements "recognized by the regional intergovernmental organizations" to participate in the diplomatic negotiations on the text of the two Additional Protocols to the Geneva Conventions.110 Under article 96 of Protocol I, non-state actors may commit, under certain specific circumstances, to apply the conventions and the protocol if they declare their willingness to do so to the Swiss government. The PLO has never made a declaration under article 96, and Israel is not a party to Protocol I. As a result, Protocol I does not apply to the current clashes, except for the provisions of Protocol I that are considered customary international law.
The PLO Executive Committee wrote to the Swiss Federal Department of Foreign Affairs in June 1989 to inform it that, being "entrusted with the functions of the Government of the State of Palestine by decision of the Palestinian National Council," it had decided on May 4, 1989 to adhere to the Geneva Conventions and their additional protocols.111 Due to the "uncertainty within the international community as to the existence or non-existence of a State of Palestine," the Swiss government informed states that it could not decide whether the PLO letter constituted a valid instrument of accession. As a result of their unilateral declaration, the PLO and its constituent factions have nevertheless undertaken what is, at minimum, a strong moral commitment to uphold the most fundamental standards contained in the Geneva Conventions and Protocol I.
Crimes Against Humanity
The scale and systematic nature of the attacks on civilians detailed in this report meets the definition of a crime against humanity. Hamas and Islamic Jihad have claimed responsibility for suicide bombing attacks on civilians since 1994, and such attacks clearly represent organizational policy at the highest levels. Since January 2002, the al-Aqsa Martyrs' Brigades and the PFLP have also claimed responsibility for organizing and carrying out such attacks.
The notion of "crimes against humanity" refers to acts that, by their scale or nature, outrage the conscience of humankind. Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945. Since then, the concept has been incorporated into a number of international treaties, including the Rome Statute of the International Criminal Court (ICC). Although definitions of crimes against humanity differ slightly from treaty to treaty, all definitions provide that the deliberate, widespread, or systematic killing of civilians by an organization or government is a crime against humanity.112 Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict.
The most recent definition of crimes against humanity is contained in the Rome Statute of the ICC, which entered into force on July 1, 2002. The statute defines crimes against humanity as the "participation in and knowledge of a widespread or systematic attack against a civilian population," and "the multiple commission of [such] acts...against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." The statute's introduction defines "policy to commit such attack" to mean that the state or organization actively promoted or encouraged such attacks against a civilian population. The elements of the "crime against humanity of murder" require that (1) "the perpetrator killed one or more persons," (2) "[t]he conduct was committed as part of a widespread or systematic attack directed against a civilian population," and (3) "[t]he perpetrator knew that the conduct was part of, or intended the conduct to be part of, a widespread or systematic attack against a civilian population."113
Those who commit crimes against humanity, like war crimes, are held individually criminally responsible for their actions. Crimes against humanity give rise to universal jurisdiction, they do not admit the defense of following superior orders, and they do not benefit from statutes of limitation. International jurisprudence and standard setting of the last ten years have consolidated the view that those responsible for crimes against humanity and other serious violations of human rights should not be granted amnesty.114 As in the case of war crimes, all states are responsible for bringing those who commit crimes against humanity to justice.
The pattern of suicide bombing attacks against Israel civilians that emerged in 2001 and intensified during 2002 clearly meets the criteria of a crime against humanity.
War Crimes: The Prohibition Against Targeting Civilians
A fundamental rule of international humanitarian law is that civilians must enjoy general protection against danger arising from military operations. The rule of civilian immunity is one of "the oldest fundamental maxims" of international customary law, meaning that it is binding on all parties to a conflict, regardless of whether a conflict is international or non-international in character.115 Non-state parties to a conflict are also obliged to respect the norms of customary international law. At all times, it is forbidden to direct attacks against civilians; indeed, to attack civilians intentionally while aware of their civilian status is a war crime. It is thus an imperative duty for an attacker to identify and distinguish non-combatants from combatants in every situation.
In addition to its status as established customary law, the principle of civilian immunity has been codified in numerous treaties. One of the clearest expressions of the principle is set out in article 51(2) of Additional Protocol I to the Geneva Conventions, which states:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.116
By deliberately targeting civilians, suicide bombing attacks clearly violate this most fundamental rule of the laws of war. The prohibition against targeting civilians holds in all circumstances, including when a party undertakes such attacks in retaliation for attacks on its own civilians (discussed below).117
The principle of distinction between civilian and military targets is enshrined in article 48 of Protocol I:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.118
Military objectives are defined as "those objects, which by their nature, location, purpose or use make an effective contribution to military action."119 Under international humanitarian law, attacks that are not, or as a result of the method of attack cannot, be aimed at military targets, are considered "indiscriminate." They are prohibited under Protocol I and, under the same treaty, constitute war crimes.120 The protocol's provisions prohibiting indiscriminate warfare are considered to be norms of customary international law, binding on all parties in a conflict, regardless of whether it is an international or internal armed conflict.121 That is, they are binding on all parties to the Israeli-Palestinian conflict, even though Israel has not ratified Protocol I.
Murder and Willful Killings
In all situations of armed conflict, the deliberate killing of civilians is a war crime. Common Article 3 of the 1949 Geneva Conventions prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture" when perpetrated against persons "taking no active part in the hostilities." As noted, Israel has ratified the 1949 Geneva Conventions. The obligation contained in Common Article 3 is absolute. It applies regardless of whether a party to the conflict is a state.122 Serious violations of Common Article 3 are increasingly considered to be war crimes, and have been defined as such in the statutes of the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda.123
Willful killing, that is, intentionally causing the death of civilians, and "willfully causing great suffering or serious injury" when wounding victims, are war crimes.124 Persons who commit, order, or condone war crimes are individually liable under international humanitarian law for their crimes.
Justifications Offered by Palestinian Armed Groups
Representatives of armed Palestinian groups often acknowledge they are aware that suicide attacks against civilians breach fundamental norms of international humanitarian law. However, they frequently invoke several arguments in an attempt to justify suicide attacks. The first argument is that such attacks do not target civilians. The second is that international humanitarian law does not regulate the conduct of Palestinian armed groups. The third is that those targeted in the suicide bombing attacks are some how not entitled to civilian status. The fourth is that suicide bombing attacks on civilians are legitimate because there is no other way to compensate for the imbalance of means between armed Palestinian groups and the Israeli security forces. None of these arguments has merit.
Despite overwhelming evidence to the contrary, members of armed Palestinian groups frequently deny that their operations target civilians. When a founding member of the al-Aqsa Martyrs' Brigades, Mahmud al-Titi, was interviewed on March 8, 2002 about a shooting attack at a Tel Aviv restaurant three days earlier, al-Titi maintained-without much apparent conviction-that he had instructed the perpetrator to target soldiers or police. "I believe he saw soldiers or guards next to the restaurant or maybe he didn't find soldiers or police and so attacked the closest target."125 Shortly before he was assassinated on May 22, 2002, al-Titi publicly tried to distance himself from the al-Aqsa Martyrs' Brigades' string of civilian attacks: "I want to fight whoever is in charge of the government of Israel, not civilians," he said. "We were delivering the wrong message to the world."126
Since October 2000, Hamas has carried out eighteen suicide attacks against civilians, more than any other group. In an on-line interview, Salah Shehadah, the leader of the Hamas military wing, was asked: "There are allegations against Hamas that it targets civilians through martyrdom operations, what's your take on that?" Shehadah responded, implicitly conceding that some categories of civilians were targeted:
Our stand is not to target children, the elderly, or places of prayer-even though these places of prayer incite the killing of Muslims. Up until now we have not targeted schools ...nor do we target hospitals, even though they are an easy target. That is because we are working in accordance with certain values ...we don't fight Jews because they are Jewish but because they occupy our lands. So if children are killed it is something outside of our hands.127
Palestinian groups and spokespersons have claimed that the practice of targeting civilians is somehow exempt from condemnation as a war crime or crime against humanity because of the exceptional character of their struggle for "national liberation." A typical example is a statement by Hassan Salameh, a Hamas member from Gaza now imprisoned for life for his role in the 1996 suicide bombings: "I am not a murderer.... Even if civilians are killed, it's not because we like it or are bloodthirsty. It is a fact of life in a people's struggle against a foreign occupier. A suicide bombing is the highest level of jihad and highlights the depth of our faith."128
However, article 1(4) of Additional Protocol I, which was expressly intended to cover wars of national liberation, states that the Protocol and all its principles and provisions cover "armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination...."129 As mentioned, the PLO, as the recognized representative of the Palestinian people, participated in the negotiation of Additional Protocol I from 1974 to 1977. Israel has not ratified Protocol I, and this particular provision is not considered customary international law. However, given the wide extent of the ratification of Protocol I, article 1(4) represents a significant trend in establishing that the fundamental rules of international humanitarian law apply even in wars of national liberation.130
The language of Protocol I expressly prohibits attacks against civilians, as discussed above. Article 51(2) of Additional Protocol I states unambiguously that "[t]he civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited."131
Retaliation and Reprisals
Palestinian groups responsible for suicide bombing attacks against civilians have commonly claimed that such attacks are legitimate because they are carried out in retaliation for real or perceived Israeli violations of international humanitarian law. For example, Hamas leader Ismail Abu Shanab told Human Rights Watch:
It's not targeting civilians. It is saying that if you attack mine I'll attack yours. If we say yes, we'll stop-can the world guarantee Israel will stop? The rules of the game were set by the other side. If you follow all our martyrdom operations, you will find that they all came after their massacres. We would accept the rules [of international humanitarian law] if Israel would use them. If you ask us to comply, that is not difficult. Islamic teachings support the Geneva Conventions. They are accepted. When it comes to the other party, if they don't abide, we cannot be obliged to them, except insofar as we can achieve something."132
Islamic Jihad and Fatah leaders have made similar statements. But this argument is both incorrect and, insofar as others are encouraged to act according to this view, damaging.
The idea that suicide attacks against Israeli civilians are legitimate retaliation for Israeli attacks has had great resonance with Palestinian public opinion. Public opinion polls indicate that the overwhelming majority of Palestinians, including many who are opposed to attacks against civilians, also oppose PA arrests of members of the perpetrator groups.133 One Palestinian academic told Human Rights Watch: "None of us want to do these things. It is imposed on us. We know about the Geneva Conventions, the need to distinguish, but what we see on the ground is something different."134
Under international humanitarian law, a failure by one party to a conflict to respect the laws of war does not relieve the other of its obligation to respect those laws. That obligation is absolute, not premised on reciprocity.
The Geneva Conventions specifically prohibit reprisals against civilians, private property of civilians in occupied territory, or enemy foreigners on friendly territory.135 Additional Protocol I is similarly unambiguous on reprisals: "Attacks against the civilian population or civilians by way of reprisals are prohibited."136 Although the relevant provision of Protocol I has not yet reached the status of customary law, it expresses the prevailing trend in IHL to prohibit reprisal attacks against civilians-and thereby pre-empt the vicious spirals of reprisal and counter-reprisal that frequently follow.137
Who is a Civilian?
Another justification put forward by the perpetrators of attacks against civilians is that the individuals targeted are somehow not entitled to civilian status. As discussed earlier, the distinction between civilians and combatants is fundamental to the protections of international humanitarian law.
Under IHL, anyone who is not a combatant is considered a civilian.138 Reserve or off-duty soldiers are considered civilians unless they take part directly in hostilities, or become subject to military command. Civilians lose their civilian protection if they directly participate in armed hostilities, but only during the period of that participation; they regain civilian status once they are no longer directly engaged in hostilities.
Civilian Residents of Illegal Settlements as "Legitimate Targets"
Palestinian armed groups that have targeted Israeli civilians argue that Israeli settlers in the Occupied Territories have forfeited their civilian status because they reside in settlements that are illegal under international humanitarian law.139 Leaders of Hamas and Islamic Jihad, the groups that pioneered the use of suicide bomb attacks against civilians, have further stated that they consider all of Israel to be "occupied territory," all Jewish Israelis to be settlers, and thus all Israelis to be legitimate targets.
This position is exemplified by statements such as those of Hamas's leader, Shaikh Ahmad Yassin. In August 2001, in the aftermath of the suicide bombing attack on the Sbarro pizzeria, Yassin said, "The Geneva Convention protects civilians in occupied territories, not civilians who are in fact occupiers. All of Israel, Tel Aviv included, is occupied Palestine. So we're not actually targeting civilians-that would go against Islam."140
Even Palestinians who criticize attacks against civilians frequently excuse attacks against settlers. The fact that many individual settlers carry arms, arguably for their own defense, appears to have given a new argument to armed groups to justify attacks against civilians. "They are not civilians," Islamic Jihad spokesperson Ismail Abu Shanab told Human Rights Watch.
Not because the settlements are not legal but because the settlers are militias. They are not civilians. They have guns and are armed. Every home and settler has a gun, and all these people are militants and targets. They can't hide in the uniform of a civilian.... If I see women and children I must not shoot. We can't behave without humanity. But in principle, settlers are considered targets, legally.141
In an interview with Human Rights Watch, Hussein al-Sheikh, a Fatah official, made the same distinction. "We sent a message to al-Aqsa: `Don't touch Israeli civilians. Never. Focus on the army and settlers. We don't consider settlers to be civilians.'"142
These assertions are inconsistent with international humanitarian law. The illegal status of settlements under international humanitarian law does not negate the rights of the civilians living there. The fact that a person lives in a settlement, whether legal or not, does not make him or her a legitimate military target. Under international humanitarian law, intentional attacks on civilians, or attacks that do not distinguish between military targets and civilians, are prohibited under all circumstances. Israeli civilians living in the settlements, so long as they do not take up arms and take an active part in hostilities, are noncombatants.
When individual settlers take an active part in hostilities, as opposed to acting in legitimate self-defense, they lose their civilian protection and become legitimate military targets during the period of their participation, just as Palestinian militants who take an active part in armed conflict become legitimate military targets during that period. However, even in a situation in which armed settlers were to become combatants, their presence among the larger civilian settler population would not negate the requirement that Palestinian combatants distinguish between military and civilian targets during that time, desist from attacking civilians, take all feasible precautions to avoid harm to civilians, and refrain from attacks that cause disproportionate harm to civilians.
Hamas and Islamic Jihad further argue that Israel's military reservist system makes almost all of its Jewish citizens, except for children and the elderly, legitimate targets of armed attacks. "Are there civilians in Israel?" Shaikh Yassin asked in an al-Hayat interview, shortly after the end of Operation Defensive Shield.
They are all in the military, men and women.... They wear civilian clothes inside Israel, and military clothes when they are with us.... The 20,000 or 30,000 reserve soldiers, where did they come from? Are they not part of the Israeli people? Were they not civilians?143
International humanitarian law makes clear, however, that reserve or off-duty soldiers who are not at that moment subject to the integrated disciplinary command of the armed forces are considered civilians until the time that they become subject to military command-meaning, until they are effectively incorporated into the armed forces. Their incorporation into the regular armed forces is most frequently signified by wearing a uniform or other identifiable insignia.
Another justification offered by Palestinian armed groups for attacks against civilians is that the groups lack the weaponry and training available to the Israelis, and thus have no other means of fighting for the Palestinian cause. In an interview with the Washington Post, Hamas spokesman `Abd al-`Aziz al-Rantisi said:
We don't have F-16s, Apache helicopters and missiles.... They are attacking us with weapons against which we can't defend ourselves. And now we have a weapon they can't defend themselves against.... We believe this weapon creates a kind of balance, because this weapon is like an F-16.144
Many Palestinians interviewed by Human Rights Watch said attacks on civilians were their only weapon with which to respond to repeated IDF use of tanks, attack helicopters, missiles, and warplanes.
Many conflicts, whether internal or international, take place between parties with radically differing means at their disposal. This is true of almost all wars that could potentially qualify under Additional Protocol I, article 4(1) as wars of national liberation, where one party frequently has vastly more sophisticated technical and military means than the other. Yet Protocol I reaffirms that all the basic rules of international humanitarian law still apply in those circumstances. Indeed, such a practice would be an exception that would virtually swallow the rules of international humanitarian law, since most wars are between forces of unequal means. The prohibition against intentional attacks against civilians is absolute. It cannot be justified by reference to a disparity of power between opposing forces.
Individual and Command Responsibility for Crimes Against Humanity and War Crimes
Under international law, persons who commit, order, or condone war crimes or crimes against humanity are criminally responsible individually for their actions. In certain circumstances, IHL also holds commanders criminally liable for war crimes or crimes against humanity committed by their subordinates.145
The responsibility of superior officers for atrocities by their subordinates is commonly known as command responsibility. Although the concept originated in military law, it now also includes the responsibility of civil authorities for abuses committed by persons under their direct authority.146 The doctrine of command responsibility has been upheld in recent decisions by the international criminal tribunals for the former Yugoslavia and for Rwanda, and is codified in the Rome Statute for the International Criminal Court.
There are two forms of command responsibility. The first is direct responsibility for orders that are unlawful, such as when a military commander authorizes or orders rapes, massacres, or intentional attacks on civilians. The second is imputed responsibility, when a superior failed to prevent or punish crimes committed by a subordinate acting on his own initiative. This kind of responsibility depends on whether the superior had actual or constructive notice of the subordinates' crimes, and was in a position to stop and punish them.147 If a commander had such notice, he can be held criminally responsible for his subordinates if he failed to take appropriate measures to control the subordinates, to prevent their atrocities, and to punish offenders.
For the doctrine of command responsibility to be applicable, two conditions must be met. A superior-subordinate relationship must exist, and the superior must exercise "effective control" over the subordinate. Effective control includes the ability to give orders or instructions, to ensure their implementation, and to punish or discipline subordinates if the orders are disobeyed. The International Criminal Tribunal for the former Yugoslavia (ICTY) in the "Celbici" case defined effective control as the superior "having the material ability to prevent and punish the commission" of violations of international humanitarian law.148 The ICTY held that the
[d]octrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by subordinates.... It follows that there is a threshold at which persons cease to possess the necessary powers of control over the actual perpetrators of offense and, accordingly, cannot properly be considered their "superiors".... [G]reat care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote.149
There is no statute of limitations for crimes against humanity or war crimes. Individuals who plan, organize, order, assist, commit or attempt to commit them can be prosecuted at any time, as can those with command responsibility for such acts. All states are obliged to bring to justice such persons, regardless of the place and time at which their crimes occurred. The Palestinian Authority, to the extent that it exercises authority, should take immediate steps to prevent the commission of such acts and to criminally prosecute the individuals who have ordered, organized, condoned, or carried them out.
The Participation of Children in Hostilities
International human rights and international humanitarian law have long prohibited the recruitment and use of children under fifteen years of age in hostilities.150 There is growing international consensus that this threshold is too low, and that all children-internationally defined as those under the age of eighteen years-require increased protection from involvement in armed conflict.
As a result, in May 2000, the U.N. General Assembly adopted the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.151 The Optional Protocol requires governments to take all feasible steps to ensure that children under the age of eighteen do not take direct part in hostilities; bans all compulsory recruitment of people under eighteen; and raises the minimum age for voluntary recruitment by governments. It also provides important additional protections against any recruitment or use of children under eighteen by armed groups that are not part of a state's armed forces. One hundred and ten states have signed the Optional Protocol since its adoption, and thirty-seven states have taken the necessary steps to ratify it.
The Optional Protocol states that "Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years." States Party are required to "take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices." These measures should also include "mak[ing] the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike," and taking "all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service," including "when necessary, accord[ing] to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration."152
Although the PA is not a party to the Convention on the Rights of the Child (CRC) or its Optional Protocol, it has signaled its willingness to accept its standards by endorsing the April 2001 Amman Declaration on the Use of Children as Soldiers, which stated that "the use in hostilities of any child under eighteen years of age by any armed force or armed group is unacceptable."153 The PA also advocated the application of the Optional Protocol in a speech before the United Nations Special Session on Children in May 2002, emphasizing the urgency of the need to protect Palestinian children from the impact of armed conflict.154 Human Rights Watch considers that, having made a moral commitment to the implementation of the CRC and its Optional Protocol, the PA should implement their provisions against the recruitment and use of children in hostilities.
102 Article 2, paragraph 2, common to the four Geneva Conventions of August 12, 1949. The Geneva Conventions of August 12, 1949; the Protocols Additional to the Geneva Conventions of June 8, 1977; and their commentaries are available at http://www.icrc.org/ihl (accessed September 3, 2002).
103 A rule is customary if it reflects state practice and there exists a conviction in the international community that such practice is required as a matter of law. While treaties only bind those states that have ratified them, customary law binds all states. See International Committee of the Red Cross (ICRC), "Treaties and Customary Law" at http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList2/Humanitarian_law:Treaties_and_customary_law (accessed September 3, 2002). For a discussion on customary law binding individuals and non-state actors, see Lindsay Moir, The Law of Internal Armed Conflict (United Kingdom: Cambridge University Press, 2002), pp. 57-58; and Rene Provost, International Human Rights and Humanitarian Law (United Kingdom: Cambridge University Press, 2002), pp. 98-99.
104 Including Algeria, Bahrain, Iran, Iraq, Israel, Egypt, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Sudan, Saudi Arabia, Syria, Tunisia, Turkey, the United Arab Emirates, and Yemen.
105 The non-state participants in the meeting, which also included the African National Congress, did not vote.
106 Article 3 common to the four Geneva Conventions of August 12, 1949 (Common Article 3), accepted as customary law, has wide scope. The authoritative commentary of the ICRC to the Fourth Geneva Convention justifies applying the provision to non-state actors, saying "[t]here can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the municipal law of the States in question, long before the Convention was signed." ICRC, "Commentary: Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949" at http://www.icrc.org/ihl (accessed September 3, 2002).
107 The Government of Israel and the Palestine Liberation Organization, "The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip," Washington D.C., September 28, 1995.
108 See article II (3) (c) in Annex I, "Protocol Concerning Redeployment and Security Arrangements, The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip," Washington D.C., September 28, 1995.
109 Under article XI (1) of Annex I, "Protocol Concerning Redeployment. . ." of the interim agreement of September 28, 1995, the Palestinian Police "will exercise powers and responsibilities to implement this Memorandum with due regard to internationally accepted norms of human rights and the rule of law, and will be guided by the need to protect the public, respect human dignity, and avoid harassment."
110 Final Act of the Diplomatic Conference of Geneva of 1974-1977, Geneva, June 10, 1977.
111 ICRC, "Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: Ratifications, accessions and successions" at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/77EA1BDEE20B4CCDC1256B6600595596#a6 (accessed September 3, 2002).
112 One example of a definition is contained in article 18 of the Draft Code of Crimes Against the Peace and Security of Mankind, drafted by the expert members of the International Law Commission. Article 18 uses a definition of crimes against humanity based on the Nuremberg Charter, but also takes into account developments in international law since Nuremberg. It sets out two conditions that must be met for acts such as murder, enslavement, mutilation, and rape to qualify as crimes against humanity. The first was that the act be committed "in a systematic manner or on a large scale," meaning that it must have been committed as a result of a deliberate plan or policy, usually resulting in repeated acts. The second condition was that the acts be directed against multiple victims, either "as a result of the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude." See "Article 18-Crimes Against Humanity" in chapter II, "Draft Code of Crimes Against the Peace and Security of Mankind" in the International Law Commission Report, 1996 at http://www.un.org/law/ilc/reports/1996/chap02.htm#doc3 (accessed September 3, 2002).
113 Article 7(1)(a), "Finalized draft text of the Elements of Crimes Adopted by the Preparatory Commission for the International Criminal Court," November 2, 2000, U.N. Document PCNICC/2000/1/Add.2.
114 For example, on July 7, 1999, the Special Representative of the Secretary-General attached a disclaimer to the Sierra Leone Peace Agreement, saying "The United Nations interprets that the amnesty and pardon in article nine of this agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law." See also, Commission on Human Rights, resolutions 1999/34 and 1999/32; the Annual Report of the U.N. Committee Against Torture to the General Assembly, 09/07/1996,A/51/44, para. 117; and U.N. Human Rights Committee General Comment 20, April 10, 1992.
115 Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict (Oxford: Oxford University Press, 1995), p. 120. "The general prohibition against indiscriminate warfare applies independently of Arts. 48 and 51 [of Protocol I]. The relevant provisions of the Additional Protocols merely codify pre-existing customary law, because the principle of distinction belongs to the oldest fundamental maxims of established customary rules of humanitarian law. It is also virtually impossible to distinguish between international and non-international armed conflicts in this respect."
116 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977 at http://www.unhchr.ch/html/menu3/b/93.htm (accessed October 8, 2002).
117 Protocol I, Art. 51(6).
118 Protocol I, Art. 48.
119 Protocol I, Art. 52(2).
120 Indiscriminate attacks are "those which are not directed against a military objective," "those which employ a method or means of combat which cannot be directed at a specific military objective," or "those which employ a method or means of combat, the effects of which cannot be limited as required by the Protocol," and "consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction." Definitions of war crimes under Protocol I are contained in article 85.
121 Fleck (Ed.), The Handbook of Humanitarian Law, p. 120.
122 The ICRC commentary notes that the term "each Party" also binds a "non-signatory Party-a Party, moreover, which was not yet in existence [at the time of the Diplomatic Conference] and which need not even represent a legal entity capable of undertaking international obligations." The commentary continues, "[t]he obligation is absolute for each of the Parties." It further states: "If an insurgent party applies Article 3, so much the better for the victims of the conflict. No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy or brigandage are right." ICRC, Commentary to the Fourth Geneva Convention at http://www.icrc.org/ihl (accessed September 3, 2002).
123 S.R. Ratner, "Categories of War Crimes" in Roy Gutman and David Rieff (eds.), Crimes of War, (New York: W.W. Norton and Co., 1999).
124 Those violations of international humanitarian law that are "grave breaches" of the Fourth Geneva Convention are enumerated in article 147, and include willful killing, torture or inhuman treatment, and "willfully causing great suffering or serious injury to body or health." These violations, including acts of willful killing, are also specified as war crimes under article 8 of the Rome Statute establishing the International Criminal Court, which has jurisdiction over these crimes after July 1, 2002 for states that have ratified the statute, or in situations in which the U.N. Security Council refers the conduct to the ICC for prosecution.
125 Mohammed Daraghmeh, "Militia leader seeks to build Palestinian liberation arm," Associated Press, March 8, 2002.
126 C.J. Chivers, "Palestinian militant group says it will limit bombings," New York Times, April 23, 2002. In this interview, al-Titi used his nom de guerre, Abu Mujahid. He was identified by his real name in an interview published several days later. Mohammad Bazzi, "Out of hiding for interview, al-Aqsa leader is defiant," Newsday, April 25, 2002. Al-Titi and two fellow al-Aqsa Martyrs' Brigades militants were assassinated on May 22, 2002.
127 Anonymous article entitled, "Head of the military wing of Hamas discloses for the first time secrets of martyrs, their operations and their weapons," posted on `Izz al-Din al-Qasasm website, www.qassam.net/chat/salah3.html (in Arabic) (accessed August 8, 2002). Translated by Human Rights Watch. .
128 Jerrold M. Post and Ehud Sprinzak, "Terror's Aftermath: A convicted Hamas terrorist talks about his mission to destroy Israel," Los Angeles Times, July 7, 2002.
129 Protocol I, Art. 1(4).
130 As of September 1, 2002, 159 states had become parties to Additional Protocol I.
131 Protocol I, Art. 51(2).
132 Human Rights Watch interview with Ismail Abu Shanab, Gaza City, May 15, 2002.
133 In a survey by the Palestinian Center for Policy and Survey Research (PSR), 86 percent of respondents opposed the arrest of individuals who had carried out attacks inside Israel. PSR Public Opinion Poll no. 4, May 15-19, 2002 at http://www.pcpsr.org/survey/polls/2002/p4a.html (accessed September 3, 2002).
134 Human Rights Watch interview, name withheld, Jenin, June 10, 2002.
135 Fourth Geneva Convention, Art. 33(3).
136 Protocol I, Art. 51(6). According to the ICRC commentary, "This provision is very important," noting that the belligerents in World War II, after declaring publicly that attacks are only permissible against military objects, subsequently "on the pretext that their own population had been hit by attacks carried out by the adversary, they went so far, by way of reprisals, as to wage war almost indiscriminately, and this resulted in countless civilian victims." ICRC, "Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977" at http://www.icrc.org/ihl (accessed September 3, 2002).
137 See generally, T. Meron, "The Humanization of Humanitarian Law," 94 American Journal of International Law, 239, 249-251. Israel could help dispel any doubt about the applicability of the rule against reprisals by ratifying Protocol I.
138 Under article 50(1) of Protocol I a civilian is defined as someone who is not a member of any organized armed forces of a party to a conflict. The same article adds that "[i]n cases of doubt whether a person is a civilian, that person shall be considered to be a civilian." Under article 51(3), civilians that directly participate in hostilities lose civilian protection for the duration of such participation.
139 Article 49(6) of the Fourth Geneva Convention states that "[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Successive Israeli governments have given active support to the settlement policy since 1967, inconsistent with the aims of the Fourth Geneva Convention, which was intended to protect the civilian population of occupied territories from `colonization' and other similar policies detrimental to their well being. See ICRC Commentary to the Fourth Geneva Convention at http://www.icrc.org/ihl (accessed September 3, 2002). Civilian settlements also violate the prohibition on creating permanent changes in the occupied territories that are not for the benefit of the occupied population ("protected persons"), as reflected in article 55 of the 1907 Hague Regulations.
140 "No Israeli targets off-limits, Hamas spiritual chief warns," Flore de Preneuf interview with Shaikh Ahmad Yassin, St. Petersburg Times (Florida), August 11, 2001.
141 Human Rights Watch interview, Gaza City, May 15, 2002.
142 Human Rights Watch interview, Ramallah, May 14, 2002.
143 Fathi Sabbah, "Hamas leader to al-Hayat: Resistance, not reform, is the Palestinian demand right now," al-Hayat, May 22, 2002, translated in Mideast Mirror (London), May 22, 2002.
144 Molly Moore and John Ward Anderson, "Suicide Bombers Change Mideast's Military Balance," Washington Post, August 17, 2002.
145 See Major-General (Retired) A.P.V. Rogers, "Command Responsibility Under the Law of War," lecture given at the Lauterpracht Resesarch Center for International Law, Cambridge University, 1999 at http://www.law.cam.ac.uk/RCIL/Archive.htm (accessed September 3, 2002).
146 Article 28 of the Rome Statute of the International Criminal Court, "Responsibility of commanders and other superiors."
147 Constructive notice exists when offenses were so numerous or notorious that a reasonable person would conclude that the commander must have known of their commission.
148 Prosecutor v. Delali, Judgment No. IT-96-21-T, Nov. 16,1998 (Celebici case), para. 378. See also Prosecutor v. Karanac, Kunac and Vokovic. Judgment No. IT-96-23-T & IT-96-23/1-T, Nov. 22, 2001, para. 396.
149 Celebici, para. 377.
150 Article 77(2) of Protocol I requires parties to the conflict to "take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavor to give priority to those who are oldest." Article 38 of Convention on the Rights of the Child, adopted November 20, 1989, requires states parties to "take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities," and to "refrain from recruiting any person who has not attained the age of fifteen years into their armed forces." Similar provisions exist in international criminal law and international labor law. For example, article 8 of the Rome Statute of the ICC gives the court jurisdiction over the war crime of conscription or enlisting children under fifteen years into national armed forces or armed groups, or using them to participate actively in hostilities. Articles 1 and 3 of the International Labor Organization Convention no.182 includes the forced or compulsory recruitment of children under eighteen for use in armed conflict among the "worst forms of child labour" and requires states to "take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency." Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, adopted June 17, 1999 (entered into force November 19, 2000).
151 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May, 2000. General Assembly resolution A/RES/54/263 (entered into force February 12, 2002).
152 Ibid, articles 4(1), 4(2), 6(2), and 6(3).
153 Amman Declaration on the Use of Children as Soldiers, April 10, 2001.
154 Statement of Dr. Emile Jarjou'i, Head of Delegation of the Observer Delegation of Palestine on the occasion of the Special Session of the General Assembly on Children, May 9, 2002 at www.un.org/ga/children/palestineE.htm (accessed June 6, 2002).