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.