As the NYT reports, Amnesty International issued a blistering report yesterday accusing Israel (and particularly the Israel Defence Forces) of committing war crimes during their recent military action in Lebanon. Is there any credence to their charges?
AI is not, at least in my view, the most credible or fair-minded human rights organization out there (see my posts on their previous charges against the U.S. government below). And I’m still waiting on their report on Hizbulluh/Iranian/Syria war crimes. Still, whether or not AI ignored war crimes on the Hizbulluh/Iran/Syria side, their charges about Israel must be taken seriously. Here is the crux of their charge, that Israel committed disproportionate attacks against civilian targets:
Disproportionate attacks. . .are those in which the “collateral damage” would be regarded as excessive in relation to the direct military advantage to be gained. Israel maintains that the military advantage in this context “is not of that specific attack but of the military operation as a whole”.(13)
This interpretation is too wide. Overbroad interpretations of what constitutes a military objective or military advantage are often used to justify attacks aimed at harming the economy of a state or demoralizing the civilian population. Such interpretations undermine civilian immunity. A legitimate military advantage cannot be one that is merely “a potential or indeterminate advantage”. If weakening the enemy population’s resolve to fight were considered a legitimate objective of armed forces, there would be no limit to war.
Israel has launched widespread attacks against public civilian infrastructure, including power plants, bridges, main roads, seaports and Beirut’s international airport. Such objects are presumed to be civilian. Israeli officials told Amnesty International that the potential military use of certain items, such as electricity and fuel, renders them legitimate military targets. However, even if it could be argued that some of these objects could qualify as military objectives (because they serve a dual purpose), Israel is obligated to ensure that attacking these objects would not violate the principle of proportionality. For example, a road that can be used for military transport is still primarily civilian in nature. The military advantage anticipated from destroying the road must be measured against the likely effect on civilians, especially the most vulnerable, such as those requiring urgent medical attention. The same considerations apply to electricity and fuel, among other items.
Similarly critical is the obligation that Israel take “constant care to spare civilians, the civilian population, civilian objects, from attack”. This requirement to take precautionary measures in launching attacks includes choosing only means and methods of attack “with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
It is also forbidden to use starvation as a method of warfare, or to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population. Some of the targets chosen – water pumping stations and supermarkets, for example – raise the possibility that Israel may have violated the prohibition against targeting objects indispensable to the survival of the civilian population.
Israel has asserted that Hizbullah fighters have enmeshed themselves in the civilian population for the purpose of creating “human shields”. While the use of civilians to shield a combatant from attack is a war crime, under international humanitarian law such use does not release the opposing party from its obligations towards the protection of the civilian population.
This analysis is certainly plausible, but surely its interpretation of international humanitarian law is debatable. The facts appear relatively undisputed: Israel attacked civilian infrastructure in Lebanon on the reasonable assumption that this infrastructure was the basis of Hizbulluh’s ability to attack Israel and that Hizbulluh was in fact hiding within the civilian population to avoid attacks. AI says that even if that was the case, Israel cannot lawfully attack such civilian targets.
I doubt that there is lots of consensus on this point. Israel certainly has a decent argument that its inherent right of self-defense permits it to attack enemies hiding within a civilian population. The point is that this is a very hard legal question – indeed, it may very well be unresolvable under current international humanitarian law. Certainly, there is very little state practice supporting AI’s position. But they do have a fair normative case.
In the end, I doubt that IHL can help resolve anything of importance here. There is simply too much disagreement and uncertainty over IHL principles in the context of reprisals against terrorist grousp to be able to definitively claim that Israel’s bombing campaign constituted a war crime. If AI was a fair-minded organization, it would admit this truth. But they obviously have not. So what does that say about AI?
Should we care? Yes and no…but mostly no. On the yes side, AI is a powerful idea merchant that has a lot of agenda-setting power. It’s certainly not a good thing for states to be on the wrong side of AI’s line.
However, there are two things that make me believe that “no” outweighs the yes. First, Israel, more than most other states, doesn’t really care about international opinion. Israel is already at the bottom of the stack in most eyes, be it those of states, NGOs, or international organizations. What difference will it make to Israel if AI accuses it of war crimes?
More importantly, however, it shouldn’t matter because NGOs should not and cannot be in the business of determining what is appropriate force in conflict. Do we know what criteria and metric AI uses to distinguish appropriate force from a war crime? How heavily does Hezbollah’s tactics of hiding among civilians affect that? I would wager lots and lots of money that AI has no methodology for determining this; thus, the accusation must be given no weight. And outside of the conspiracy-theory minded Arab nations, it won’t be.
Professor Weinberger might rather have said that ‘Israel, more than most other states, doesn’t really care about international law.‘
To quote Marko Milanovic: ‘One view of IHL is that the military is regulating itself, with soldier ethics and honour providing the impetus for respecting the laws of war. The other is, however, that we, as ordinary people, who do not have to fight in wars, still can pass moral and rational judgments on the people who do. The current Middle East conflict is a case in point.’
As to ‘Hezbollah’s tactics of hiding among civilians,’ please see, for instance, Mitch Prothero’s piece, ‘The “hiding among civilians” myth,’ at Slate.com: http://www.salon.com/news/feature/2006/07/28/hezbollah/
Let’s not forget the situation in the Occupied Territories….
Please see: The B’Tselem: The Israeli Information Center for Human Rights in the Occupied Territories
http://www.btselem.org/English/index.asp
Palestinian Centre for Human Rights
http://www.pchrgaza.org/