UN Human Rights Expert Has His Facts Wrong

Harry Reicher
Special to the Jewish Week
In his statement on March 19, characterizing Israel’s recent military incursion into Gaza as a "grave war crime,” the UN Human Rights Council's Special Rapporteur on Human Rights in the Palestinian Territories, Professor Richard Falk, has once again permitted personal prejudices to distort what should be objective reporting. Although a veteran critic of Israel, who never fails to find fault in Israel’s actions, this time Falk, who in his official position is charged with monitoring human rights in Gaza (as well as the West Bank), has outdone himself. After pointing out, quite correctly, that international law requires military forces "to distinguish between military targets and surrounding civilians," Falk asserts: "If it is not possible to do so, then launching the attack is inherently unlawful
and would seem to constitute a war crime of the greatest magnitude under international law.” Not only is this a serious misrepresentation of international law, but a moment's reflection would reveal that it simply cannot be right.

International law has, since at least the mid-19th century, drawn a fundamental distinction, in the laws of war, between military personnel, installations and property, on the one hand, and civilian personnel, installations and property, on the other. The former are legitimate targets; the latter are strictly out of bounds. But the sad reality is that civilian casualties, and damage to non-military installations and property, are a tragically inevitable consequence of military conflict. Has there ever been a war without harm to civilians? To impose criminal liability for every injury occasioned to civilians, in all cases, and quite irrespective of the circumstances, would therefore be so unrealistic as to detach law from reality in a fundamentally unacceptable way; such law could not possibly be complied with. In fact, international law does no such thing. What it outlaws, rather, is the deliberate targeting of civilians, or actions which, whilst directed at military targets, are carried out with such negligence, or reckless disregard of the consequences to civilians, that culpability is perfectly warranted. In this way, international law focuses on the guilty mind of the perpetrator, as is really the case with criminal law generally.

Before forming conclusions in relation to the Gaza war, it is therefore important to bear in mind two factors that are of central relevance.

First, Hamas’ practice of embedding terrorist personnel, as well as arms, munitions and other military equipment, among civilians, and in heavily-populated civilian areas generally. Using innocent men, women and children as human shields in this way is an unconscionably callous, cold-blooded practice, but it is also in unquestionable violation of international law. Professor Falk conveniently overlooks the fact that it was Hamas itself that made it “not possible” to “distinguish between military targets and surrounding civilians.”

Secondly, account must be taken of the extraordinary lengths to which Israel went to warn the civilian population to evacuate targeted areas – through an unprecedented inundation of leaflets, radio broadcasts and mass telephone calls and text messaging – in the process giving the terrorists themselves early warning of impending action.

Where, in all this, is Israel’s “guilty mind,” such as would warrant condemnation? In deliberately ignoring these key elements in the equation, and asserting a blanket prohibition on any military action whatsoever where military and civilian forces are even purposely enmeshed, Professor Falk’s statement is an open invitation to terrorist action of the worst kind; terrorists need merely plant their bases in civilian areas, and military response immediately becomes prohibited. At the same time, his assertion is a denial, in such circumstances, of the right to self defense, which ultimately emanates from the first and most basic human instinct, that of self-preservation. On this view, Israel, which had thousands of rockets fired onto its soil, and aimed quite deliberately at large population centers, had no right to strike back. Articulation of these consequences of Falk’s view suffices to underscore their inherent improbability. The international legal system as a whole, and the UN’s human rights system in particular, deserve better.

Harry Reicher teaches international human rights at the University of Pennsylvania Law School, and is Scholar-in-Residence at Touro Law Center. From 1995-2004, he was Representative to the United Nations of Agudath Israel World Organization.