Vol. 6, No. 13 9 November 2006
How Should Israel Respond to War Crimes
Accusations from the War in Lebanon?
Dr. Avi Bell
Discussing how Israel should respond to war crimes accusations diverts the agenda away from Hizballah - a terrorist group that committed war crimes in the recent war that far exceed in gravity and quantity all those Israel is accused of. Hizballah launched thousands of rocket and mortar attacks on northern Israel, deliberately targeting civilians in violation of the laws of war.
Hizballah still holds two Israeli prisoners of war incommunicado, without permitting access to the Red Cross, in violation of the laws of prisoners of war in the Third Geneva Convention. Hizballah combatants dressed as protected civilians, thereby committing illegal acts of perfidy. They carried out military operations from civilian areas in order to use protected persons as shields, another violation of the laws of war.
The accusations against Israel by international NGOs such as Amnesty International and Human Rights Watch are made on the basis of bad or no evidence, linguistic misdirection, non sequiturs, and misapplication or misstatement of accepted legal standards.
Under the laws of war, if a residential home serves as a base or a hiding place for combatants or a storehouse for weaponry, it is a legitimate military target. Thus, if one sees a residential home bombed, or even fifty bombed homes, this is not evidence per se of a war crime.
French President Jacques Chirac claimed that Israel's counterstrike on Lebanon was "totally disproportionate" to Hizballah's attack on Israel. Yet such a claim has no basis in international law. When states act in self-defense, in response to an armed attack, they may use as much force as necessary to achieve the military objective. Thus the United States could use as much force as it needed in order to topple the regime in Afghanistan; it did not need to limit itself to the amount of force used by al-Qaeda in the 9/11 attacks.
Hizballah - Not Israel - Is Guilty of War Crimes
Discussing how Israel should respond to war crimes accusations puts the wrong party in the dock. This diverts the agenda away from Hizballah - a terrorist group that committed war crimes in the recent war that far exceed in gravity and quantity all those Israel is accused of.
Hizballah launched thousands of rocket and mortar attacks on civilian areas in northern Israel far away from plausible military targets, deliberately targeting civilians in violation of the rule of distinction - one of the most important of the laws of war. Hizballah still holds two Israeli prisoners of war incommunicado, without permitting access to the Red Cross, in violation of the laws of prisoners of war in the Third Geneva Convention. Hizballah combatants fought while disguised as protected persons such as non-combatant civilians, thereby committing illegal acts of perfidy. They placed their military assets and carried out military operations in schools, hospitals, residential areas, and next to international peace-keeping forces in order to use protected persons as shields, another violation of the international laws of war.
Hizballah is an organization that illegally calls for genocide and commits acts of aggression, crimes against humanity, and continues to hold arms in violation of Lebanon's binding international commitments. By permitting Hizballah to operate in Lebanon, Lebanon violates its obligations under Security Council Resolution 1373, adopted under Chapters 7 of the UN Charter, as well as its obligations under the Genocide Convention.
Understanding the Laws of War
Are Israel's critics correct in accusing it of war crimes during the war this summer? No. According to the laws of war, Israel's critics are wrong once again.
The laws of war are a longstanding feature of international law, perhaps the oldest set of international laws. There are two basic kinds of laws of war: jus in bello and jus ad bellum.
Jus ad bellum is the body of law that determines when states are allowed to initiate armed conflict and when states are considered to be illegal aggressors. The modern rules of jus ad bellum are thoroughly straightforward and can be found in the UN Charter. Accordingly, one may dispatch forces into international armed conflict in only two cases: (1) after authorization by the Security Council under Chapter 7 of the UN Charter, or (2) in self-defense, which includes collective self-defense. These limitations don't apply to non-international armed conflict. Jus ad bellum places no limits on the use of armed force within a state.
Jus in bello is the body of law that determines how states may use military force once armed conflict has begun. Jus in bello is not encoded in any single treaty and is instead found in customary international law, which is that set of international rules that has grown up over the years out of state behavior and traditional legal understandings.
There are three basic rules of jus in bello and most others can be derived from these three. Number one is the rule of distinction. One must distinguish between legitimate and illegitimate targets, and military attacks must be aimed only at legitimate targets, which are those that contribute to the military effort. I've used the term "legitimate targets" rather than "military targets" because many targets that are not military in the everyday sense of the word are legitimate targets when destroying or neutralizing them offers a definite military advantage.
In its official commentary on the First Additional Protocol to the Geneva Conventions of 1977, the International Committee of the Red Cross (ICRC) says not only that the presence of civilians inside or in the immediate proximity of military objectives does not undermine the legitimacy of attacking those military targets, but also that purely civilian objects may, in combat conditions, become military objectives. Thus, for example, the ICRC commentary mentions that there is no doubt that civilian roads are legitimate targets where a belligerent wants to prevent the enemy from passing through those roads. So the proper formulation is that legitimate targets may be struck, but illegitimate targets - those that don't contribute a definite military advantage - may not be struck.
The second major rule of jus in bello is proportionality. It is permissible to attack legitimate targets even if one knows that there will inevitably be additional damage to protected targets such as hospitals or civilians, as long as the damage to the civilians is proportionate to the military need.
For both proportionality and distinction, what is important is intent, not result. It may turn out after the fact that an attack was based on faulty information and results in disproportionate loss of civilian life, but that doesn't make the attack retroactively illegal. The legal question is always whether the disproportionate results should have been anticipated. You must have some sort of intent or knowledge of causing excessive damage in order to violate the rule of proportionality. The role of intent is even clearer with regard to distinction. If one aims at a legitimate target using legitimate weapons, etc., the attack abides by the rule of distinction, even if it turns out after the fact that only civilians were struck.
The third major rule of jus in bello is simply that one should not carry out even permissible attacks in such a way as to cause unnecessary suffering - suffering that is not related to military advantage.
Now there are a few subsidiary rules that emerge from these main rules. For example, it's forbidden for a combatant to pretend to be a civilian in order to avoid attack, which is a crime called perfidy. It is also forbidden for combatants to attempt to hide themselves behind civilian shields. That would be considered a violation on the target side of the rule of distinction.
Civilian Houses Used by Hizballah Are Legitimate Targets in War
Perhaps the best-known charge made by international NGOs such as Human Rights Watch and Amnesty International is that Israeli attacks in Lebanon violated the rule of distinction. Yet if you look at the actual charges, you will see that they are made on the basis of bad or no evidence, linguistic misdirection, non sequiturs, and misapplication or misstatement of accepted legal standards.
Amnesty International describes extensive destruction of residential buildings, over 1,000 Lebanese dead - of which an unknown number were civilians, and the destruction of dozens of bridges, roads, and ports as well as fuel stations and commercial enterprises. There is no systematic discussion anywhere in its report of Hizballah's fighting positions, its methods of combat, its methods of movement and communication, or whether Hizballah's combatants dressed like civilians. Instead, Amnesty argues that the physical destruction speaks for itself and demonstrates that Israel violated the principle of distinction.
To put it bluntly, this approach has no basis in the laws of war. If one sees a residential home bombed, or even fifty bombed homes, has one seen evidence of a war crime? One cannot know without more information. Again, the ICRC commentary says that if fighting between armed forces takes place in a town which is defended house by house, it is "inevitable that every house will become a legitimate military target."
This means that when one looks at a residential home that has been damaged, one has to know where this home was in relation to the fighting. How did the fighting take place? Where were the combatants? Where was their weaponry? Without knowing these things, it is impossible to know whether or not a war crime took place. In towns like Bint Jbeil and Maroun a-Ras, where there was house-to-house fighting, it was inevitable that scores of residential houses would be damaged or destroyed.
Given that Hizballah fighters based themselves almost exclusively in residential areas, and located their arms almost exclusively in residential areas, many residential houses became legitimate military targets. Under the laws of war, if a residential house serves as a base or a hiding place for combatants or a storehouse for weaponry, it is a legitimate military target. The same is true even of such buildings as hospitals or schools. If they are used as weapons depots or combat bases, they are legitimate military targets, no matter what they are used for in ordinary civilian life.
The same can be said of Human Rights Watch's citations of attacks in which numerous Lebanese civilians were killed. Because Hizballah fighters in residential homes are legitimate targets, as well as the roads on which they expect to travel and the buildings they use for storehouses, it is legal for Israel to attack those targets even if there will be inevitable collateral damage including dead civilians. Moreover, as noted earlier, the question of intent is crucial. If a belligerent attacks what it believes is a legitimate target, and it turns out after the fact that the intelligence was faulty and only civilians were killed, there is no war crime.
It is legal for armed forces to make mistakes. It is not a war crime if after the fact one turns out to be wrong in believing that a house contains a combatant. Israel targeted the areas where it believed Hizballah was, where it believed Hizballah might bring in arms or bring out hostages, and where Hizballah intended to gain military advantage. If, as is inevitable, Israel made occasional mistakes in targeting, that is not a war crime. It is to be expected.
Thus, when one sees dead civilians, it is crucial to know not just where the nearest legitimate targets were, but also what intelligence assessments said. Simple visual examinations tell us nothing since both legitimate and illegitimate targets dressed as civilians, drove civilian vehicles, and stationed themselves in civilian areas. Given that all of the Hizballah fighters illegally hid as civilians in civilian areas as well as the general limitations of military intelligence, it is quite impossible for anyone to expect that Israel would have been able to identify all targets with 100 percent precision and no mistakes.
Do dead civilians mean war crimes? Without further information, it is impossible to establish the grounds for accusing Israel of war crimes. By contrast, the information is quite clear on the Hizballah crimes of combatant location and dress.
Amnesty and Human Rights Watch claimed that the use of civilian shields by Hizballah does not "release the opposing party from its obligations towards the protection of the civilian population." With all due respect, this is nonsense. When a combatant hides in a civilian house, the house ceases to be a civilian target and becomes a military target. Moreover, under the law of proportionality, it is permissible to attack this house even if there will be collateral civilian casualties, so long as the casualties are not excessive. So Hizballah's use of civilian shields is very relevant to the legal standard to be applied. The more civilian shields used by Hizballah, the more Israel may attack what might otherwise be civilian targets, and the more civilians that may be killed by legal Israeli attacks.
Amnesty International's report specifically accused Israel of violating the rule of distinction in targeting civilian homes in Bint Jbeil, where house-to-house fighting occurred. Nowhere does Amnesty mention that Hizballah fighters were entrenched in residential and commercial areas of Bint Jbeil, including the center of town. There is no way for readers of the report to know that Israel's fighting in Bint Jbeil was actually in compliance with the rule of distinction.
Other Spurious Charges Against Israel
Other charges rely on misdirection or blind acceptance of wartime propaganda.
Amnesty's report mentions the bombing of a certain bridge over the Sofi River on the road to Damascus that would cost an estimated $65 million to replace. One observer reports: "This bridge is not used by Hizballah since it lies in a mountain resort area of Mt. Lebanon, far away from the south of Lebanon. Hence it has no strategic value for the Israeli fight against Hizballah. But it was a beautiful bridge and it was the symbol of the reconstruction of Lebanon after the civil war." Beautiful or not, bridges are legitimate military targets in war, especially when they lie on the road connecting Hizballah's main arms supplier, Syria, to Lebanon.
Human Rights Watch's one major report on the war stated that on July 23, Israeli warplanes struck two clearly marked Red Cross ambulances in the village of Kana. Six Red Cross workers were injured in the attack, and the three patients they were treating suffered additional injuries. Now this is a shocking incident that would be very disturbing were it not for the fact that, as the Australian foreign minister pointed out, if one actually examined the photographic evidence, "it is beyond serious dispute that this episode has all the makings of a hoax." Specifically, if one looks at the photographs of the ambulances in question, it is quite clear that they were never struck by any missiles and that such damage as they suffered occurred long before the war.
How many others of Human Rights Watch's claims are hoaxes may never be known. The organization's report is rife with claims without evidence other than Lebanese complaints, often clearly exaggerated and under the cloak of anonymity.
Understanding the Rule of Proportionality
On July 20, UN Secretary-General Kofi Annan stated that Israel had used excessive and disproportionate force as evidenced by the fact that "a number of Israeli actions have hurt and killed Lebanese civilians and military personnel and caused great damage to infrastructure." Louise Arbour, the UN High Commissioner for Human Rights, claimed that Israel was violating the rule of proportionality because Israeli "bombardment of sites with alleged military significance but resulting invariably in the killing of innocent civilians is unjustifiable."
Yet Arbour and Annan apparently don't know the first thing about the rule of proportionality, which says it is permissible to attack military targets even though it inevitably results in the loss of innocent civilian life, as long as the damage to protected civilians is not excessive in relation to the military need.
French President Jacques Chirac claimed on July 14 that Israel's counterstrike on Lebanon was "totally disproportionate" to Hizballah's July 12 attack on Israeli positions. This criticism, which was echoed elsewhere in Europe, is apparently based upon the idea that international law forbids Israel to have used more force in defending itself than Hizballah used in attacking it. That claim, however, has no basis in international law.
When states act in self-defense in response to an armed attack, they may use as much force as necessary to achieve the military objective. Thus Britain could use as much force as needed to retake the Falklands, irrespective of the amount of force used by Argentina in taking the islands. The United States could use as much force as it needed in order to topple the regime in Afghanistan; it did not need to limit itself to the amount of force used by al-Qaeda in the 9/11 attacks.
Under the law of self-defense, Israel could use as much force as necessary to reduce or eliminate Hizballah's fighting abilities and to liberate its captured soldiers.
Kofi Annan's repeated claims that Israel somehow engaged in forbidden "collective punishment" in Lebanon also has no basis in international law. There is no such law in the general laws of war. The ban on collective punishment comes from Article 33 of the Fourth Geneva Convention, and it concerns civilians under the control of a different warring party. In our case, Article 33 could apply to Lebanese on Israeli soil or Israeli-occupied soil, but it has no application to Israeli actions concerning Lebanese on Lebanese soil. Nothing that Israel did in Lebanon did or could fall under the scope of the ban on collective punishment.
The Use of Cluster Bombs
Critics of Israel note that Israel used cluster bombs in greater amounts during the closing days of the war, and suggested that this constitutes a war crime. There are certain weapons such as some types of poison gas that are always illegal due to specific treaties. Cluster bombs are not among these weapons. Thus, it is generally legal to use cluster bombs.
Cluster bombs are anti-personnel weapons and their use must conform to the laws that apply to every other weapon - they have to be used with distinction and with proportionality. They must be used against legitimate targets and they must be used so that any anticipated collateral damage to protected targets is not excessive in relation to the military need. That means that Israel would be expected to use such anti-personnel weapons when the chance of hitting civilians was lowest and the chance of hitting Hizballah fighters was highest. That is exactly what Israel did. It used this weapon primarily during the last stages of fighting when nearly all civilians had fled southern Lebanon. Only then was it possible to use anti-personnel weapons widely and be certain that the likely targets were Hizballah fighters.
The criticism for Israeli use of cluster bombs came primarily from Human Rights Watch and Amnesty International, and reflects these organizations' long-standing campaign against cluster bombs.
Notice the irony here. Cluster bombs are a way of killing people while reducing property damage, because the weapons widen the killing zone of an explosion. So on the one hand, these groups accuse Israel of excessive property destruction and even use the property destruction as "evidence" of Israeli war crimes of indiscriminate attacks. On the other hand, the same groups say that attacking Hizballah personnel without extensive property destruction is also a war crime.
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Dr. Avi Bell of the Faculty of Law of Bar-Ilan University is currently a visiting professor at Fordham Law School. He specializes in international law, particularly the laws of war. Dr. Bell served in an IDF reserve paratrooper brigade in combat in the recent conflict in Lebanon. This Jerusalem Issue Brief is based on his presentation at the Institute for Contemporary Affairs in Jerusalem on October 3, 2006.
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