Daoud Kuttab

Writing on this website after the outbreak on the war on Lebanon, Anthony Dworkin, director of the International Crimes of War Project, lists several  issues that must be taken into consideration when assessing whether a war crime has been committed. “First, it is forbidden to direct an attack against civilians who are not taking an active part in hostilities.  Second, it is forbidden to attack civilian objects unless they make an effective contribution to your enemy’s military operations. Thirdly, it is against the law to launch indiscriminate attacks —  attacks that cannot be directed at a specific military target. Attacks are also considered indiscriminate if they violate the principle of proportionality.

 

According to this important rule, the harm that is likely to be caused to civilians by an attack must not be excessive in relation to the concrete and direct military advantage that can be expected. Armies must also do everything feasible to minimise the possible harm caused to civilians by their military operations.

 

Dworkin explains that violations of these key principles of the laws of armed conflict are “considered to be war crimes, for which individuals can potentially be held accountable.”

Supporting this position, UN High Commissioner for Human Rights Louise Arbour said on July 19 that there was a “supreme obligation” in international humanitarian law to protect civilians during hostilities, adding that there were grounds for thinking this obligation was being ignored.

Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians… Similarly, the bombardment of sites  “with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable,” Arbour said.

The International Committee of the Red Cross (ICRC) has also warned that key principles of the laws of armed conflict may have been violated. “The high number of civilian casualties and the extent of damage to essential public infrastructure raises serious questions regarding the respect of the principle of proportionality in the conduct of hostilities,” ICRC Director of Operations Pierre Krähenbühl said on July 19.

 

How might these rules apply to the fighting between Israel and Hizbollah ?

 

 

 

Dworkin said that “in the case of Israeli attacks on targets such as the Beirut airport, roads and bridges, Israeli forces have claimed a legitimate military justification in seeking to prevent the resupply of Hizbollah or the movement of Hizbollah forces .”

 

 

Even if these claims are true, “the harm caused by these attacks to the Lebanese population would have to be weighed against their military importance, to make sure that the rule on proportionality was being observed,” he added.

Dworkin stated that while this rule does not provide a clear-cut formula for determining precisely what would count as an excessive civilian death toll, in making the comments she did, Arbour (who was formerly the chief prosecutor for the Yugoslav war crimes tribunal) appeared to suggest that it might be difficult for Israel to justify some of its military actions according to this standard.

Interestingly enough, this issue has also been discussed by leading Israeli jurists. In a letter sent to Israel’s prime minister, defence minister and minister of foreign affairs, a group of Israeli jurists called on their government to be careful in staying true to international humanitarian law in their war against Lebanon .

 

 

Professor Frances Raday, chair of the Rishon Le-Zion-based Concord Research Centre for Integration of International Law in Israel, in a July 27 letter reflected the worry that Israel ’s actions were not proportional .

 

 

 

In the current circumstances, it would appear that the initial decision to respond with military force was supported by the principles of self-defense of states, as they appear in international law, and indeed seems to have been recognised as such by many in the international community. Self-defense must nevertheless be proportionate, both in terms of the scale of the initial response, and particularly with regard to the means and methods used to conduct the operations.”

 

Specifically, he pointed out that “legitimate targets of attack, can only be those which fit the definition of a military objective, which is limited to objects that make an effective contribution to military action (of the opposing party) and the targeting of which would offer the attacker a definite military advantage.”

 

Thus civilian objects, unless falling squarely within this definition, cannot be considered legitimate military objectives.

For example: “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house” or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

 

Military attacks designed to place pressure upon the civilian population, thereby leading the opposing party to change its ways, are not considered to be attacks upon legitimate military objectives, and might be considered as intentional attacks upon civilians, and as spreading terror amongst the civilian population.

 

The letter goes on to point out that “even when faced with a legitimate military objective, the laws of armed conflict contain clear restrictions on the way the attack can be carried out.

 

 

An attack by bombardment by any methods or means, which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects,” may be considered as an indiscriminate attack.

 

Advance warnings must be given, as far as circumstances permit, to civilians who might be affected by the attack. Warnings must be effective, and thus should include the possibility of passage to safety.”

 

Attacks directed against military objectives are subject to the proportionality test with regard to harm caused to civilians or civilian objects. If the harm caused is excessive in relation to the anticipated concrete and direct military advantage, then the attack must be suspended or cancelled.”

 

The Concord groups concluded by stating that “information in the media raises the concern that the state of Israel might not be acting in full conformity with the rules of international law. In addition to the general reports of wide devastation and high numbers of civilian casualties, there are for instance, reports of direct attacks upon vehicles carrying civilian families fleeing the fighting. Attacks harming civilians and civilian objects, which do not conform to the rules of armed conflict as stated above, might be considered war crimes as defined by international law. We do not have all the details to reach any definitive conclusions, although we assume the state has the relevant information in its hands.”

 

The Israeli jurists also called for:

 

 

• The relevant rules of armed conflict must be stressed and reiterated to all levels of command and operations.

 

• Safe passage must be ensured for civilians fleeing the fighting, and humanitarian aid organizations must be allowed the conditions necessary to give medical and other aid and assistance.

 

Adherence to the laws of armed conflict requires an examination of events and drawing of the conclusions at the organizational level as well as allocation of individual responsibility where rules have been breached. This should take place during the time of conflict, and not only in retrospect.

 

To deal with all of the above, the international community must create strong and effective mechanisms to hold violators of international humanitarian law accountable for war crimes, no matter who committed the acts or how much time has elapsed since the violations occurred. In light of the enormous civilian death toll in Israel’s war on

Lebanon , a deterrence against crimes against civilian populations is needed today. This should be on the agenda of all world leaders and all international bodies.

 

 

 

 

 

Jordan Times  Friday-Saturday, August 11-12, 2006

 

 

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