Sweden, Israel, and the Law

Israel’s relations with Sweden, problematic for some time, took a downward turn last week when something Swedish foreign minister, Margot Wallstrom, said was interpreted by the Israeli government to mean that Israel was carrying out extrajudicial executions on Palestinians in the latest “Knife Intifada” by Palestinians against random Israelis.

The Swedish prime minister said that Wallstrom’s comments had been misunderstood.  "The Minister for Foreign Affairs did not, as alleged, say that extrajudicial executions occur in Israel," Swedish Prime Minister Stefan Lofven and Wallstrom said in a statement. 

Let’s look back and see what Foreign Minister Wallstrom actually said. Addressing Swedish lawmakers on Friday, Wallstrom denounced the almost daily Palestinian knife, gun, or car-ramming attacks, but urged Israel to avoid excessive force. According to the official English translation of her statement provided by the Swedish Foreign Ministry,

And likewise, the response must not be of the kind -- and this is what I say in other situations where the response is such that it results in extrajudicial executions or is disproportionate in that the number of people killed on that side exceeds the original number of deaths many times over.

The Swedish government said she had been talking in general terms about the principles of international law concerning self-defense and the importance of responding in a proportional manner. She was just speaking in generalities -- you understand, don’t you? No need for the Israeli government to assume she was speaking about Israel and get all defensive. And, as reported by Reuters, the prime minister added, "The situation in the Middle East is difficult enough without having to be encumbered by misunderstandings about anybody's intentions." Oh, yes. How tiresome!

But others, not Israeli and definitely not part of the Israeli government, also took it to mean Israel. Press TV reports that “…Swedish Foreign Minister Margot Wallstrom said Israeli military forces exercise ”extrajudicial executions" or employ disproportionate force in clashes with Palestinian protesters, citing as “ostensible” proof the higher number of Palestinian casualties compared to those of Israel. And they quote her: “Israel’s response involved extrajudicial executions, and was disproportionate, so the number of the dead on the other side is greater than the original death toll by several factors,” she said.

And the Israeli government took that to mean that she was talking about Israeli actions specifically. Imagine that! Those Israelis are really oversensitive and it is must be truly wearying.

Now that we understand that Minister Wallstrom was just discussing matters of law in general, there is something that is not clear to me.  As I understand the law, if someone tries to murder you, you have the right to use lethal force to defend your life. In addition, if you witness someone attempting to murder someone else, you may intervene with lethal force to prevent the murder. To be clear: in either case, whether self-defense or defense of other, you may kill the person attempting to commit murder.

Furthermore, if two people are attempting to murder one person, you may take the lives of both of them to spare the life of the intended victim. One who sets out to murder forfeits his own right to life. The same rule applies no matter how many attackers there are. Numbers are irrelevant. I believe that to be the rule in all Common Law jurisdictions and it is my impression that it is the law everywhere. If Swedish law is different, please set me straight. I suspect it is not.

As to the matter of “disproportionate response,” the meaning of the law is that the force used must bear a reasonable relationship to the danger posed. So if someone attacks another with a large knife, that is clearly “lethal force.” It would be proportionate, in that case, to respond with lethal force. That means it is permitted by law to kill the one attempting to murder.

It is a case-by-case question. So, if there are a hundred attacks by a hundred murderers, and all of the attackers are killed in their attempt, of what relevance is it if only ten of their intended victims are killed? Which defense was the first one that was “disproportionate”? Which intended victims should be sacrificed to proportionality?

I assume Minister Wallstrom would admonish me that she was talking about warfare, not crime and the damage inflicted must bear some proportionality to the importance of the goal to be achieved. I am a simple law professor and I do not see the relevance of the doctrine here. That doctrine refers to acts like the destruction of the Czech town of Lidice and the slaughter of its residents to avenge the killing of a top Nazi SS officer or the carpet bombing of Grozny for the purpose of killing Chechen rebels holed up in the city. (I do not recall seeing that Sweden protested either of those acts.)

In a case where one side of a conflict employs as a strategy the incitement of ordinary citizens to carry out terrorist murders and they are killed in the course of such attempts, what force was excessive? How many random civilians have to be killed in order to justify killing others who attempt to kill? Where is this rule embodied? Is it a rule of general application? If so, it should be codified or embodied in precedent somewhere. Or is it something that everyone “just knows”? If it applies only to Israel, then this has a name. The Swedish government knows what it is. So do the Israelis. Perhaps Madam Wallstrom should explain the laws she referred to.

Jack Golbert has practiced law in New York, California, and Israel for a multi-national clientele including Israeli NGO's and was also a law professor in Los Angeles. He has practiced law in Jerusalem since 1986 and has contributed numerous opinion pieces to various media outlets.