Discussion

The question put to Professor Baxter concerned the belligerent standing of Palestinian liberation fighters and dealt, in particular, with their position upon hypothesizing possession of sophisticated weapons of war.

I will respond to this question in terms of the law that is binding on all of the participants in this conflict and nearly 130 other countries, that is, the Geneva Conventions of 1949. I will then go on to some of the proposals that have been made about the new law.

The requirement for treatment as a regular belligerent, qualified for the status of a prisoner of war upon capture, is, under Article 4 of the Geneva Prisoners of War Convention, that one be a member of the armed forces of a Party to the conflict or a member of “other militias or... other volunteer corps, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied,” provided such militias or volunteer corps fulfill four conditions.[1] One of these four conditions is that the members of such organizations must conduct their operations in accordance with the laws and customs of war. What this means is that members of a resistance movement which systematically attacks civilians who are immune from attack are not themselves entitled to prisoner of war treatment upon capture. There must therefore be general compliance with the law of war before individual members of such organized resistance movements may be recognized as belligerents entitled to prisoner of war treatment upon capture. Any individual who belongs to an organized resistance movement or to the regular armed forces, whether they be those of the United States, Egypt, or Israel, and who commits a war crime in deliberately mounting an unjustified attack upon civilians may simply be tried as a war criminal, because he has violated the law of war.

If members of the Palestine resistance movement or a resistance movement belonging to a party to the conflict, such as Egypt, were to be equipped with aircraft and were deliberately to bombard the civilian population, I would again have to reply that this would be a violation of the law of war.

Let me turn now to the law of the future. Two protocols to the Geneva Conventions of 1949 have been drafted by the International Committee of the Red Cross on the basis of the work of two Conferences of Government Experts, in which experts from over 90 states participated. The I.C.R.C. requested, as you may have read in the New York Times,[2] that the parties to the present conflict in the Middle East, comply with these protocols, even though they are not yet in force. Iraq and Syria said that they would comply, and Egypt said that it would do so also on condition that Israel do likewise.[3] To my knowledge, there has been no response by Israel to date.

One of these two protocols, that applicable to international armed conflicts, defines attacks as all acts of violence committed against the adversary whether in defense or offence.[4] The civilian population is defined as comprising all persons who are civilians.[5] Article 46 then provides that the civilian population as such shall not be made the object of attack. In particular, methods intended to spread terror amongst the civilian population are prohibited. Civilians are to enjoy the protection afforded by this article except to the extent that they take a direct part in hostilities.[6] This strikes me as a sufficient answer to the point made by Professor Bassiouni, who has suggested that a wider category of civilians should be regarded as proper objects of attack. Exactly the opposite line was taken by the Conference, by the International Committee of the Red Cross, and apparently by Egypt, Syria, and Iraq in agreeing to be bound by the new law, not yet in force.

I have done the best I can to describe in a neutral way what the governing law is. You may say that the existing law is nonsense, but this is the law and you and I and everyone must respect it.

  • [1] Convention Relative to the Treatment of Prisoners of War, Art. 4A(2), supra note 3.
  • [2] Oct. 12, 1973, at 18, col. 3.
  • [3] 55 Revue Internationale de la Croix-Rouge 667 (1973).
  • [4] Art. 44, }1, of the International Protocol, supra note 15.
  • [5] Id., art. 45.
  • [6] Id., art. 46, }2.
 
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