"Some in Israel argue that the raid’s location in the West Bank, rather than Gaza, means that it was not an act of war, subject to IHL, but a form of law enforcement. The West Bank is under formal military occupation by Israel. Yet in that case, a separate body of law—International Human Rights Law (IHRL)—still applies. And IHRL does not permit assassination. The latest episode will intensify a raging debate over Israel’s compliance with the law.”
While IHRL applies; as “Occupied Territory,” and thereby in a “state of war,” International Humanitarian Law (IHL), the civilian euphemistic term for what the military calls more honestly, the “Law of Armed Conflict,” or “Law of War,” applies. With the full panoply of IHL equally applicable. To include the prohibition of perfidy, which this clearly was.
The U.S. and Israel have both so distorted IHL and IHRL, with their interpretation that it never applies to them (us), that its not unreasonable to have the presumption that virtually all they (we) do is a war crime. And the Global South and and our “Enemies,” know that all too well.
In the case of the U.S., we, the USG, “invented” a "U.S. Common Law of War,” out of “whole-cloth,” at least out of a body of lies and revisionist history, as this is a beginning of a sound explanation of: https://harvardlawreview.org/print/vol-128/al-bahlul-v-united-states/.
A bit more is necessary to be added to that however to include US DOD and DOJ Prosecutors committing “fraud upon the Court” by omission of clauses from critical quotes of William Winthrop, to change their meaning to the opposite. And a particular individual’s falsification of history for a Prosecution-friendly interpretation of the Civil War, which the USG and Lawfareblog.com got behind, served to totally rewrite/fabricate U.S. legal history/theory. And won him a job as a prosecutor.
With it all all “ratified,” by the Conservative Judges hearing these cases. Especially of Bahlul v. U.S., which I remain on as one of a couple Appellate Defense Attorneys in our continuing appeal of this legal travesty! Brought to full fruition by the Republican Party and Traditional Conservatives like Sen. Jeff Sessions, as I saw up close and first hand, at the Heritage Foundation and with their “experts” at various conference. Including at West Point where they were so out of sync even with senior Army JAJ Officers, so right-wing extreme were they, that they could have set up a table for them as the “Carl Schmitt School of LOAC."
Though not without help from Democratic Party “National Security Conservatives," of which there are way more than a few, sharing the same ideology popularized by Barry Goldwater.
On Feb 1, 2024, at 12:27 PM, Chas Freeman via Salon <salon@listserve.com> wrote:--Did an Israeli hospital raid breach the laws of war?
Disguising a soldier as a doctor can be an act of “perfidy”
image: AP
Jan 31st 2024THE MAN in the wheelchair, pushed along by three companions, looks like any other patient in the Ibn Sina hospital in the West Bank. So does the woman in a headscarf apparently carrying a baby. Others, in scrubs, look like medical staff. But moments later they pull out rifles and kill three Palestinians. Within ten minutes they are gone. Israel says it eliminated three terrorists during the raid on January 30th and staved off a major attack which was imminent. But disguising combatants as medical personnel probably breaks international law, which prohibits “perfidy”. What is that crime?
Under international humanitarian law (IHL), which governs how armies may wage war, it is illegal to kill or wound “treacherously”. Specifically, that covers “acts inviting the confidence of an adversary to lead him to believe that he is entitled to…protection”. This is distinct from classical military deception. The classic example of perfidy is feigning surrender. If you wave a white flag and then pull out a gun as the enemy approaches to take you prisoner, that is a straightforward breach of the law.
Read all our coverage of the war between Israel and Hamas
But perfidy also includes a number of other acts. Soldiers cannot use the uniforms or signs of United Nations peacekeepers, or those of neutral countries. They cannot pretend to be wounded to lull the enemy into approaching or simulate the “distinctive emblem of cultural property”, for instance disguising a command post as a mosque. Air forces can broadcast transponder signals that make their planes look like enemy ones—which enjoy no special protection—but they cannot pretend to be medical transports or send distress signals.
Medical personnel and doctors have particular protection, over and above that granted in general to civilians and civilian objects. Israel has accused Hamas of using ambulances to move its troops. That is obviously deceptive. Whether it is also treacherous, in law, is harder to answer. “Proving the war crime of perfidy would require showing how the transport of weapons or Hamas fighters in an ambulance led to the injury or death of IDF or civilians,” notes Luke Moffett, a professor in IHL at Queen’s University Belfast.
Indeed, the law on perfidy does not prohibit all forms of disguise. It is acceptable, for example, to feign injury in order to escape during a battle. Moreover Israel has long used “Mista’arvim” (meaning: disguised as Arabs) units that operate undercover in Arab areas. That is not necessarily illegal, argues Ido Rosenzweig of the University of Haifa in a paper for the Israel Democracy Institute, a think-tank.
But such units should be used for intelligence-gathering or destroying objects, not lethal operations against civilians, he concludes. They also need to carry their arms openly, he says, and wear distinctive signs from the point at which the enemy can see them and might confuse them with civilians. Countries have often blurred these lines. During America’s raid against Osama bin Laden in 2011, one CIA operative wore a jacket indicating he was a member of Pakistan’s ISI spy agency, notes Wesley Morgan, a journalist.
The raid on Ibn Sina hospital, which was carried out by an Arab-speaking unit of the Israeli police’s elite counter-terrorism force and Shin Bet, the country’s security service, seems to be a clear-cut case. The Israeli attackers use their medical disguises as a key part of the assault. “If soldiers dress up as doctors to attack otherwise legitimate targets that is a clear case of perfidy,” writes Janina Dill, a legal expert at Oxford University. Moreover, notes Aurel Sari, a law professor at the University of Exeter and a fellow at NATO’s Office of Legal Affairs, if the three targets were being treated at the hospital for wounds or sickness, it would be illegal to attack them even without perfidy, using uniformed soldiers.
Some in Israel argue that the raid’s location in the West Bank, rather than Gaza, means that it was not an act of war, subject to IHL, but a form of law enforcement. The West Bank is under formal military occupation by Israel. Yet in that case, a separate body of law—International Human Rights Law (IHRL)—still applies. And IHRL does not permit assassination. The latest episode will intensify a raging debate over Israel’s compliance with the law. ■
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