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Israel has repeatedly claimed it has nothing to hide in Jenin, so why was it so keen on keeping the UN from investigating? The answer lies in the perversion of international humanitarian law, which has ramifications far beyond Israel's own situation.
The Palestinians, human rights groups, and the UN all stand ready to accuse Israel of war crimes, a category which is rightly reserved for some of most terrible things human beings can do to each other. After all, for something to be a 'war crime' it must be so beyond the pale that even in war it is forbidden.
What defines a war crime is spelled out in great detail in international humanitarian law, but one fundamental is clear: the distinction between soldiers and civilians.
Terrorism, of course, turns the civilian-military distinction on its head: Civilians are the intended targets of the terrorist, not 'collateral damage.' Terrorists, according to international law, are unlawful combatants, meaning they are not entitled to the protections due prisoners of war.
The fact that terrorists are not considered soldiers, however, does not prevent them from being war criminals. A terrorist, for example, who chooses to hide in a hospital or a home - not to mention the Church of the Nativity - and shoots from behind civilians, is committing a war crime.
Accordingly, the real war criminals in Jenin were the Palestinians who booby-trapped a large civilian area and deliberately caused civilian casualties on their own side. The whole Palestinian 'military' strategy was to take advantage of the IDF's willingness to suffer casualties in a concrete test of the laws of war. As one Palestinian who fought there put it, seeing soldiers walking down the alleys of Jenin was 'like a prize,' in that they put themselves at an almost impossible disadvantage - for the sole purpose of protecting civilians.
Despite inevitable exceptions, in broad terms Israel's soldiers should have been considered heroes of humanitarian law, and the Palestinians who endangered their own people the villains. But the fact that the international community sees things in exact opposite terms is not just a problem for Israel. The real significance of the stampede to put Israel in the docket is that, if it was wrong to fight terror the way Israel fought it, then terror cannot be fought at all.
The way out of this predicament was shown by US President George W. Bush in another area of international law. In his 'axis of evil' speech to Congress, Bush declared, 'The United States of America will not permit the world's most dangerous regimes to threaten us with the world's most destructive weapons.' With this single master stroke, Bush brushed aside the most misguided premise of arms control, which pretended that no distinctions should be made between governments (aside from the five original nuclear powers) in the quest to prevent nuclear proliferation.
With this single sentence, Bush leapfrogged the existing lowest common denominator system, which acts as if Israel's Jericho missiles are as menacing as Saddam Hussein's weapons program, and put the focus where it belongs.
The refusal to make critical distinctions makes a mockery of international law and can lead to the opposite of what the law intended. Arms control is supposed to make the world safer, but Saddam had no trouble signing the Nuclear Non-Proliferation Treaty, because he knew that doing so would actually help him obtain high technology for his weapons program. By the same token, Palestinian terrorists hid out in a crowded warren of homes, because they knew the civilians endangered would be on Israel's head rather than their own.
The only antidote to the Orwellian abuse of international law is to speak the truth. The US, for starters, should not just protect Israel from what Daniel Patrick Moynihan once called the 'jackals' at the UN, but should place credit and blame where it is due. It is critical for the war on terrorism, not just for Israel, for the US to call the Palestinians not just on their targeting of Israeli civilians, but for fighting from behind their own civilians. America would also serve its own cause if it recognized the IDF soldiers who died fighting with such courage and humanity in the battle against terrorism that both nations share.
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