21 Jul UN Human Rights Commissioner Warns of Criminal Responsibility
On Wednesday, U.N. Human Rights Commissioner Louise Arbour warned of criminal responsibility that may arise from the war in the Middle East (HT: Dave Hoffman at Concurring Opinions). Here is the key language from her statement:
The High Commissioner recalled that parties to a conflict have the obligation to exercise precaution and respect the principle of proportionality in all military operations so as to prevent unnecessary suffering among the civilian population. “Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians”, she said. “Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable”.
“International humanitarian law is clear on the supreme obligation to protect civilians during hostilities”, the High Commissioner said. “This obligation is also expressed in international criminal law, which defines war crimes and crimes against humanity”.
“International law demands accountability. The scale of the killings in the region, and their predictability, could engage the personal criminal responsibility of those involved, particularly those in a position of command and control”.
I’m not sure what to make of this. It appears to be a not-so-veiled reference to a possible ICC prosecution against individuals involved in the conflict. The problem is, neither Israel nor Lebanon are members of the ICC. (Israel signed in 2000 and then withdrew its signature in 2002). And of course, neither Syria nor Iran are ICC members. (Although they both signed the treaty.) Details here. So the suggestion of a possible ICC prosecution seems to have no legal basis if the conflict continues to be confined to the territories of Israel and Lebanon.
What about the International Court of Justice? OJ readers don’t need to be told this, but the ICJ does not render judgments holding individuals personally responsible for international crimes. It addresses only state-to-state conflicts. So the possibility of an ICJ “prosecution” is out of the question.
I suppose that leaves the possibility of a post hoc criminal tribunal established by the Security Council, something akin to the ICTY or the ICTR. Simply to ask the question of whether the Security Council might establish such a tribunal for this conflict is to answer it.
Finally, it is remotely possible Arbour is referring to some domestic criminal proceeding (say, in Spain) to hold individuals personally responsible. But that would seem odd indeed for a U.N. High Commissioner to warn of possible prosecution for war crimes proceedings in domestic courts.
This of course all begs the question of whether international crimes possibly have been committed by any party, a discussion of which would require another post.
So it is difficult to see where Arbour is coming from when she says that individuals will be held personally responsible for crimes committed under international law. Most likely she was simply indicating that international responsibility could flow from illegal conduct, even if the perpetrators are not prosecuted. Perhaps others can clarify the basis of Arbour’s statement.
As an aside, Professor Mary Ellen O’Connell has a nice summary of the international law principle of proportionality and its potential application to the current conflict. It is available here.
Thanks for notice of O’Connell’s article.
One quibble: it simply is not the case, at least up until now, that ‘Hezbollah[‘s] counter-attacks…[have killed] scores of Israeli civilians.’ (emphasis added) At last reading, more Israeli soldiers than civilians have been killed, and the latest total number for both is 33.
As to the question of proportionality as it applies to the Israeli invasion of Gaza Strip, a must read is Lawrence Davidson’s piece in the latest issue of Logos 5.2 (Spring/Summer 2006), ‘Blitzkrieg in Gaza,’ available online: http://www.logosjournal.com/latest_issue/main.htm
Roger, I’ve posted a black letter law discussion of proportionality in jus in bello at my blog, here.
As for Arbour’s comments – well, her statement that the “bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable” is simply wrong as a matter of law, insofar as it seems to suggest, if anything, the opposite of a rule of proportionality, by saying that anytime innocent civilians are killed, it is unjustified. If all civilian collateral damage is unjustifiable even where an alleged military target is attacked, then there is no need for a rule of proportionality.
Re Professor O’Donnell’s article, I think for the general reader, it mixes too closely proportionality in jus in bello and proportionality in jus ad bellum and runs them together. It also fails to note that the US, while generally agreeing with the customary law status of Protocol I, Art 51, rejects as too narrow the language of “concrete and direct,” at least insofar as the ICRC has chosen to interpret it, ie, as applicable solely to circumstances tactically on a battlefield, rather than taken in conjunction with the whole strategic operation of which any particular battle is merely a part. Many individual uses of force will appear disproportionate – pointless, even – if examined solely on their own, in isolation, rather than as part of a larger strategic campaign.
While Arbour’s statement may have lacked legal precision, perhaps she was intending to remind us that for the IDF virtually anything might be (and has been) construed as possessing military significance….
The strategic campaign for the Israelis vis-a-vis the Palestinians is grounded in and entirely directed by political goals, to wit:
‘Due to Israel’s overwhelming military superiority its leadership (be it of the left or the right) has never taken seriously the need for compromise with the Palestinians. And, one has to assume, that same leadership has seen Israeli casualties suffered from guerrilla actions as acceptable. They may even consider such casualties as helpful for they allow Israel to constantly label the Palestinians terrorists. They also offer the necessary excuses to mount the repeated incursions and invasions that destroy Palestinian infrastructure, eliminate its leadership and demoralize the population.
Uri Avnery, leader of Gush Shalom, has put this succinctly in reference to the present Gaza invasion. “The clear aim [of the operation] is to break the Palestinian population by liquidation of its leadership, destruction of its infrastructure and cutting off of food supplies, medicines, electricity, water and sanitary services–not to mention employment. The message to the Palestinians: if you want to put an end to your suffering, remove the government you have elected.” And, we might add, replace it with one more likely to surrender to Israel. Just so, electricity has now been cut off for 700,000 people in Gaza, most major roads and bridges have been blocked or destroyed, nights have been rendered sleepless by constant sonic booms, large numbers of Hamas government officials have been arrested, and the Palestinian Prime Minister threatened with assassination.’—Lawrence Davidson
And as to the ‘strategic campaign’ in Lebanon:
‘Israeli spokesmen are saying that they want to finish off Hizbullah. But you can’t finish off a mass movement among 1.35 million people. Besides, there wouldn’t be any Hizbullah if Israel had not invaded Lebanon in 1982 and occupied the south for twenty-two years. Israel’s grabby occupation radicalized and helped mobilize the Lebanese Shiites. They aren’t going to become less radical and less mobilized as a result of the current hamfisted Israeli assault.’—Juan Cole
Let me see if I understand this correctly, if we had only viewed the My Lai (Song My) massacre as part of a larger strategic campaign we might have better appreciated its tactical significance as well as understood its conformity to the principle of proportionality!
Or…any number of tactical situations on the battlefield, when viewed separately, could provide evidence of the disproportionate use of force, but if we add them all up ‘as part of a larger strategic campaign,’ look at the big picture if you will, we’ll conclude that they are, in toto, perfectly proportionate! That’s the sort of legal logic that makes one shudder….
And those Irish, in the end they’re all the same: O’Connell, O’Donnell, O’Reilly…O’really!
Having read Professor Anderson’s discussion of proportionality in jus in bello, it appears that this principle is utterly beholden to the discretionary judgments of military commanders bound by their tactical and strategic assessments of ‘military advantage.’ This means that while the principle is described as ‘inherently open-ended, imprecise, and subjective,’ it is, legally and ethically, impotent. Yet if it is to have the status of a principle, surely it must be deemed more than merely ‘subjective,’ despite an unavoidable degree of subjectivity in the realm of application. Absolute deference to the commander’s discretion empties this principle of meaningful employment, particularly if it is true that ‘as a matter of military and international law, the issue of proportionality has been largely regarded as non-reviewable by courts.’ Ex post facto determinations of proportionality by judicial review are here trumped by the discretionary judgments of military commanders in the heat of battle (albeit officers with professionally trained to make proportionality calculations).
By analogy, imagine if you will a similar principle employed in police officer involved shootings, in which we utterly defer to the discretionary judgments of the officer(s), disallowing any sort of ex post facto review.
I would be most grateful to learn if there are any international law scholars with interpretations of this principle that significantly differ from Professor Anderson’s analysis and conclusion.
Mr. Anderson is right that the U.S. tried in 1977 to shift the focus from assessing particular targets to the general battlefield, but this is not how the assessment actually works in practice–even by the U.S. In Iraq right now, we assess whether too many innocent bystanders will be killed before we target. In the Kosovo conflict, the ICTY Prosecutor did an investigation of NATO targeting and even though a statement appears in the report regarding general strategy, etc., the actual report is a target-by-target assessment. Regarding one or two targets where the report found excessive loss of civilian lives, it concluded those were the result of accidents. One particular case is telling. A U.S. pilot bombed a railroad bridge when a train was on it. He saw the train too late to abort–he would not have hit the bridge (though a military target) if he had had time to pull back because doing so caused disproportionate loss of life.
What the actual cases show also is that while calculating proportionality is subjective, using good faith has resulted in restraint. U.S. forces pride themselves on taking proportionality seriously.
As for the other criticism that I have mixed the ad bellum and the in bello, both include the principle of proportionality and I hear in the commentary of world leaders references to both. I believe general readers can understand my explanation: Israel has used too much force in responding to the wrongdoing by Hezbollah as a general matter and it has chosen targets in disregard of proportionality, such as the Beirut airport. Hezbollah committed the original wrong and is now targeting indiscriminately.
And Seamus is right regarding the number of Israeli civilian deaths to date and my correct name!
Thanks to Patrick O’Donnell for alerting me to this discussion.
Mary Ellen O’Connell
My apologies to Professor O’Connell for getting her name wrong – I saw it on the post but couldn’t find any way to edit it once I hit the post button. And my thanks for her interesting response. KA
I agree that the ICTY Prosecutor’s report on NATO and the Kosovo conflict is a good example of how external review of the proportionality of military actions is both possible and necessary, even if the report, in my opinion, has serious flaws – though I am not exactly objective on the matter.
The example raised by Professor O’Connell, the attack on the Grdelica gorge bridge, is truly a textbook one: the pilot could quite lawfully target the bridge while the train was out of sight. Unfortunately, the train came quickly and the bomb hit it by mistake. Tragic, but not unlawful. But then, when the pilot realized that he had inadvertedly hit the train and the bridge was still standing, he launched a SECOND bomb which destroyed the bridge and further damaged the train, killing even more people. The Office of the Prosecutor unfortunately found that this incident is not even worth investigating, as they did with the bombing of the (ghastly) Belgrade TV station, with the NGO I work for, the Belgrade Centre for Human Rights, later unsuccessfully representing the victims’ families before the European Court of Human Rights in the Bankovic case.
While I do think military commanders in the field are entitled to some deference, I don’t see at all why the limits of that deference should only be in the most extreme cases. 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.
Thank you Professor(?) Milanovic. I’ve come to respect and rely on your careful and lucid analyses at this blog.
Just in answer to Roger’s query: non-party status to the ICC statute (or the various other instruments that establish criminal liability erga omnes for grave breaches of IHL) does not preclude the prosecution of war crimes violations should those responsible enter a jurisdiction that accept that erga omnes obligation, leading either to domestic prosecution (which I think Roger is wrong to dismiss so lightly) or possible referral to a relevant international tribunal. And, of course, criminal responsibility would lie with everyone from the individuals carrying out indiscriminate attacks and upwards.