Foreword

by

John Quigley
Professor of International Law
The Ohio University College of Law

The international law rules that restrict governments in their use of military force are among the most difficult norms of law to enforce. Governments are often ready to use any methods when they feel that their vital interests are involved. Nevertheless, a body of law emerged centuries ago that required governments to avoid harming civilians during war- fare. With the formation of the International Committee of the Red Cross in the nineteenth century, this body of law developed rapidly and was embodied in treaties signed by the major powers of the day. After World War I, rules developed to restrict states in their decisions to use force against other states. First in a 1928 treaty and then in the United Nations Charter of 1945, the world community agreed that aggressive war was illegal. The only permissible reason for using force would be self-defense.

The body of law on initiation of war and on methods of conducting warfare worked in two directions. In one aspect, it imposed obligations on states as such. In another, though this aspect developed more slowly, it imposed obligations on government officials as individuals. Not only would the state be responsible for violating the laws of war, but so too would be the officials who carried out the unlawful policies. The aim was to punish those directly responsible, on the theory that such punishment might better prevent atrocities. The situation is analagous to that in a domestic legal system of wrongdoing by a business corporation. So long as liability rests on the corporation as a whole, corporate officials may view that liability as a cost of doing business and may not consider that cost too high to bear. But if sanctions are threatened against them as individuals, they may be more circumspect.

This aspect of the law of warfare received its most vivid application following World War 11, when the victorious allied powers conducted trials of officials of the governments of Germany and Japan. Officials were prosecuted and con- victed for initiating aggressive war, for killing civilians, for deporting populations, for indiscriminate destruction of property, and for similar offenses. The fact that they acted as functionaries of their governments was not deemed to justify their actions.

Mr. Nakhleh's encyclopedia explores the applicability of these precedents and of this body of law to the policies by which the government of Israel established itself in Palestine in the 1940s, and to policies it has followed since that time. Other governments and the United Nations have frequently taken Israel to task for violating international law. On occasion, they have characterized Israel's actions as war crimes.

There have, however, been no prosecutions of Israeli officials. There is no international court that has the jurisdiction to try and sentence persons who commit international crimes. The International Court of Justice, located at the Hague, was established to hear cases involving states. But it has no jurisdiction to try individuals. Since World War II, proposals have been made to create another international court to prosecute individuals for international crimes. Though drafts of treaties to establish such a court have been widely discussed, no treaty has been adopted.

As a result, the enforcement of the law on international crimes is left to individual states. Since the crimes are of an international character, all states have an interest in them. Such crimes are deemed to violate the public order of the world. Under international law, states have a duty to suppress acts that are denominated war crimes. Thus, they have a responsibility to investigate and prosecute for these offenses. Many states have adopted provisions in their penal codes making explicit provision for such international crimes, though war crimes can also be prosecuted under traditional offenses, such as murder.

Since each state has a stake in suppressing war crimes, they may prosecute them regardless of the location where they are perpetrated. The states that organized international military tribunals after World War II acted even though the offenses had not occurred in their territories. The same rule of jurisdiction is found in the Genocide Convention of 1948 and in the Convention Relative to the Treatment of Civilian Persons in Time of War of 1949 (Fourth Geneva Convention). Sig- natories of the Genocide Convention undertake (Article 1 of the Convention) "to prevent and to punish" genocide. Persons who commit genocide, says Article 4 of the Convention, should be punished "whether they are constitutionally responsible rulers, public officials or private individuals." Thus, government rank does not preclude criminal liability for genocide.

Under the Fourth Geneva Convention, the more serious offenses against civilians are denominated "grave breaches." All signatories undertake in Article 146 "to enact any legis- lation necessary to provide effective penal sanctions for per- sons committing, or ordering to be committed, any of the grave breaches of the present Convention." In addition, each signatory is required "to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts." It may also, if it prefers, "hand such persons over for trial" to another signatory. Accused persons are to be assured a "proper trial and defense."

The impact of the actions of those who became officials of Israel has been devastating for the Arab people of Palestine. In the inter-War period they, like other Arab peoples, looked forward to establishing an independent state on the land they had occupied since ancient times. But in 1948 they were driven from that land by the new state of Israel and were dispersed throughout the world. Their property was usurped, and the new government of Israel refused to let them return. The world community gave them assistance as refugees but, for a variety of reasons, did little to restore them to their land. A people was effectively destroyed.

The consequences of Mr. Nakhleh's analysis are serious. If the government of Israel has committed even a fraction of the international crimes he describes, then virtually every high official in Israel from 1948 to the present is subject to prosecution as a war criminal.