Is War Subject to Law?

Is war really subject to law? Or are any and all military acts committed during a war exempt from law? This is the question that is raised by a recently files law suit.

According to Ynet:

Dr. Izzeldin Abuelaish, who lost three daughters when the IDF fired shells at his home during Operation Cast Lead, will file on Sunday a massive damages claim against the State of Israel.

"I didn't want to file the lawsuit, and until now I didn't want to discuss it," he told Yedioth Ahronoth in a phone interview from Toronto, Canada, where he immigrated following the tragedy. "I tried to take every step t

hat would allow me to close this with love and goodwill, but they didn't leave me a choice. According to the law, the statute of limitations will apply to this case within a few weeks – but there is no statute of limitations on the blood of my daughters. It will stay with me forever. It's a catastrophe that's impossible to forget."

Abuelaish, a Palestinian gynecologist, has worked in Israeli hospitals for nearly two decades. On January 16, 2009, in the height of Operation Cast Lead, the IDF fired two shells into the window of his home, killing three of his daugters: 20-year-old Bessan, 15-year-old Mayar and 14-year-old Aya. His 17-year-old niece Nour was also killed in the attack, and his 18-year-old daughter Shada and other family members were injured. The Israeli public heard the horrifying incident in a live broadcast, as Abuelaish was preparing at that moment for a phone interview with an Israeli television channel.

Abuelaish instructed his lawyer to avoid a lawsuit and reach a settlement with the security forces, which would include recognition and compensation. But no such settlement was reached: The Defense Ministry's legal adviser, Ahaz Ben-Ari, announced this week that Abuelaish does not deserve compensation.

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(Read the full article here. This story is also covered by the Toronto Star .)

Dr. Abueliash is, of course, now best known for his extraordinary commitment to peace and co-existence despite the loss of his daughters. He is the author of the book "I Shall Not Hate", and a frequent speaker on the subject of Israel/Palestine. For a while he was the darling of liberal Jewish circles in Toronto, and spoke at a number of Jewish venues, including a SRO crowd of about 5000 at Toronto's Beth Tzdedek synagogue.

Abueliash's house was most likely hit by Israeli shells by mistake. (The alternative assumes much worse about the Israeli soldiers who fired and who gave the orders.) There were no snipers, and no "enemy combatants" in the immediate vicinity.

The question is: is an army responsible for mistakes it makes during war time - especially mistakes that kill innocent civilians. The Israeli position is "No".

“Despite the severe outcome, from a legal standpoint our stance is that the operation during which Dr. Abuelaish’s family members were hurt (sic) was an operation of war,” the Israeli defense ministry’s legal adviser Ahaz Ben-Ari, said recently, according to Israeli media reports. “Therefore the state of Israel does not carry the responsibility for the damage it caused.”

If that is true, then the Geneva conventions, drafted after WWII, largely to avoid the horrific killing of civilians that occurred during that war, turn out to be largely useless. And that would be a tragedy - dare I say, even greater than the deaths of Dr. Abueliash's daughters. That is why he is suing, and that is why we should all wish him success in his suite.

You can hear a CBC Radio interview with Dr. Abuelaish about this story here. (The story starts at about 2 minutes into the podcast.)