Facing modern warfare's legal challenges: Amichai Cohen reviews the efforts of the Israeli supreme court to apply the international laws of armed conflict in asymmetrical conflicts.

• Author: Cohen, Amichai

Recent armed conflicts are increasingly 'asymmetrical', (1) an adjective used principally with reference to the fact that the protagonists are--on the one side--a state, with all its might and force, and--on the other--an organisation with few heavy arms and a limited number of fighters. But such conflicts are also asymmetrical in a more complicated sense: states possess sound reasons for following the laws of armed conflicts or international humanitarian law, (2) and a high incentive and organisational obligation to do so. But non-state organisations almost never follow these rules and have very little incentive to do so.

States involved in these conflicts mostly attempt to follow, or are expected by the international community to follow, the laws of armed conflicts as detailed in customary international law, in the Geneva Conventions, and in other sources of applicable international law. (3) However, it has become increasingly difficult to abide by these laws, mainly because of the novel nature of the problems that constantly arise during the course of combat.

Consideration of these and similar issues has motivated some scholars and politicians to call for the redefinition or reinterpretation of the rules of armed conflicts. The Geneva Conventions and their protocols, runs their argument, were framed in an era of more 'classic' military engagements, when wars were fought between nations and by armies that observed the rules of armed conflict. The norms that may have been suitable in such situations are not suited to modern armed conflicts.

Changes to the laws of armed conflicts may indeed be required, although it will prove very difficult to actually convince states to adopt them. However, before tabling dramatic changes, it might be useful to evaluate the current state of laws of armed conflicts, and ask whether some of the problems to which reference has been made above cannot be solved within the existing framework, without a need for reconstruction.

I shall present the attempts of the Israeli Supreme Court to provide contemporary interpretations to the laws of armed conflicts, which fulfil two functions. First, they would be workable and sensible from the viewpoint of a state engaged in asymmetrical conflict. Second, these interpretations would also be loyal to the principles and norms embedded in the laws of armed conflicts, as they currently stand.

Long history

The Supreme Court's application of the international laws of armed conflicts has a long history, dating back to the Six Day War of 1967. After that war, when Israel came to control the 'territories', (4) the Supreme Court, with the explicit agreement of the organs of the state, applied to the territories a set of international norms that form a body of law called 'the international law of belligerent occupation'. Since Israel was almost the only state applying this body of law, and the Supreme Court was certainly the only court applying it, there were very few precedents for the court to rely on.

Over the years, the Supreme Court has created a detailed and wide-ranging jurisprudence of this body of law, dealing with issues such as the rights of private property, the rights of detainees, the scope of judicial review, and the legality of all kinds of security measures. The procedure which was most frequently used to develop this legal regime was when the Supreme Court sat as the 'High Court of Justice'--basically an administrative procedure, allowing the court to review the actions of the other branches of government, and issue writs and judicial orders to those branches which forbid them to take a specific action, or command them to take an action.

New uprising

In September 2000, after the failure of Israeli Prime Minister Ehud Barak and the Palestinian Authority's President Yasser Arafat to end the conflict at the Camp David meeting, the second intifada broke out. The Supreme Court was quick to recognise that this intifada involved far more than sporadic security breaches in occupied territories. The situation on the ground, with wide-ranging terrorism, suicide bombing and, above all, an...