Law In The Fog Of War

By Ruth Wedgwood

George Bush's call for a Middle East peace conference gives the region a new structure to build on, and this week Israeli Prime Minister Ariel Sharon will visit Washington for talks. But life in the West Bank and Israel remains grim. U.N. Secretary-General Kofi Annan has tabled the Security Council initiative to send a team to visit Jenin, revealing just how contentious the key issues are.

The Jenin affair shows some of the difficulties in thwarting the activities of determined guerrilla fighters. Israel was gravely alarmed by the misuse of the refugee camp as a staging area for Palestinian terror groups. The campaign against the Jenin-based terrorists has, at the same time, presented all the dilemmas of urban warfare. House-to-house fighting is the bloodiest kind of battle, disliked by all armies. An advancing force cannot see its adversary. Every window is a sniper's perch. Alleyways and streets lead to dead ends. The adversary may be disguised in civilian dress. And disabling the trip wires of booby-trapped doors and windows is a slow process that leaves a detachment in the open street, exposed to hostile fire.

Though most of Jenin's residents evacuated from the camp, Human Rights Watch estimates that 22 Palestinian noncombatants died in the fighting, and it is critical of some Israeli tactics. But HRW also notes that Palestinian gunmen "did endanger Palestinian civilians in the camp by using it as a base for planning and launching attacks, using indiscriminate tactics such as planting improvised explosive devices within the camp, and intermingling with the civilian population during armed conflict."

The settled norms of the law of armed conflict require two forms of self-restraint by fighting forces: "discrimination" and "proportionality." Civilians and civilian places are to be kept distinct from military targets and protected from deliberate attack. Any action against military targets must be mounted so as to avoid unreasonable harm to civilians. But the fog of war and an adversary's misuse can make these principles harder to apply in practice, even for the most conscientious military forces. What is to be done when a sniper is shooting at your forces from an apartment-house rooftop? A civilian residence loses its immunity when misused as a weapons platform. Indeed, the sniper has probably violated the law of war by deliberately commingling with civilians. But calling in an artillery strike on the building would also impose a great cost on innocents. A responding force is asked (under "proportionality") to consider whether there is an alternative and effective way to disable the sniper that would cause less damage to civilians trapped in the building. These are often delicate judgment calls, made in hazardous circumstances. Expertise in small-arms infantry tactics as well as ethical acuity enters the mix. The bulldozing of booby-trapped buildings in Jenin has been questioned by some international critics. But the Israelis say they warned occupants to evacuate first and chose to avoid far harsher measures, such as air power. And houses, unlike shattered human bodies in suicide bombings, can be rebuilt. Suicide bombings don't warrant reprisals against civilians, under the norms of international humanitarian law, but they do warrant urgent measures of self-defense.

Commitment to humane norms in warfare is an interest shared by all countries. What's not always so clear in a conflicted world is how to keep the law of war as a shield, not a political sword.

Ruth Wedgwood is a professor of international law at Yale and Johns Hopkins universities.