Lebanon/Israel - "Proportionality," war crimes, and international law (Doni Remba)
Not everyone agrees, though their reasons vary. Within the framework of "just war" doctrine in moral discourse and international law, the two fundamental kinds of issues concern jus ad bellum (that is, whether or not it justified to go to war in the first place) and jus in bello (that is, whether war is being conducted in ethically permissible ways). For example, even if a resort to war is justified--say, for self-defense against aggression--it is still considered unacceptable to pursue it with such tactics as the indiscriminate murder of civilians, the use of poison gas against enemy soldiers, the execution or torture of captured military prisoners, etc. As Stuart Elliott recently summed it up, "Most people acknowledge that Israel had a right to react militarily to armed attacks by Hezbollah from Lebanese territory. But it is said that Israel's response is 'disproportionate'." That is, most of these criticisms have to do with considerations of jus in bello, and condemnations of Israel's military tactics are very ofter phrased in terms of their allegedly "disproportionate" character.
As Stuart Elliott also usefully points out, the notions of "proportionality" and "disproportionality" that these critics invoke are inconsistent, often confused, and mostly irrelevant to the real moral, political, and legal issues. Some of these claims of "disproportionality" are framed in the legal or quasi-legal terms of "just war" doctrine, and in most such cases these arguments are based on misunderstandings, distortions, dubious interpretations, or simple ignorance of what "proportionality" actually means in this context. In other cases, the rhetoric about "disproportionality" involves more vague and sweeping kinds of moral arguments, not focused on the specific criteria of "just war" doctrine or international law, and these claims tend to be misleading (or absurd) for somewhat different reasons. Elliott focuses primarily on the second set of arguments (and pseudo-arguments), which may be less precise but are also more widespread and more emotionally charged, though he also addresses the first set. (See "Disproportionality" in Perspective)
In both cases, people don't seem to realize that if you want to base your arguments on claims of about "proportionality" (or "disproportionality'), you have to seriously ask the question, "proportionate" (or "disproportionate") to what? Answering this question has nothing to do with a simple numerical comparison of civilian casualties--or with the absurd notion that if Hezbollah, for example, kills or captures X Israelis, then the Israelis are only allowed to kill or capture the same number of opponents in response.
Gidon (Doni) Remba, co-founder and current President of the Chicago-area branch of Americans for Peace Now, has just written a valuable and intelligent piece that addresses the first type of argument about the allegedly "disproportional" character of Israel's military actions in Lebanon--that is, arguments that focus more specifically on the legal and ethical criteria of "just war" doctrine. Some readers may find certain passages a little technical, but that's necessary for a serious discussion of the relevant issues. This is a clear, careful, systematic, and illuminating analysis that ought to clear up a lot of distortions and misperceptions that are unfortunately pervasive in current discussions of the Lebanese/Israeli crisis.
Is Israel's current war in Lebanon somehow a violation of "just war" criteria and the laws of war--that is, aside from whether or not this war is wise or a potentially disastrous, is it a war crime? The short and straightforward answer is no. A more fleshed-our version of that answer is provided by Remba's piece (below).
(P.S. By the way, in case anyone is curious, Hezbollah's strategy of firing Katyusha rockets indiscriminately against civilian residential areas in northern Israel is without question a fundamental violation of the laws of war. Every time they launch one of these rockets--there have been hundreds in the past week and a half and a lot of others during the past few decades--they have committed a blatant and unambiguous war crime.)
ZioNation - Progressive Zionism & Israel Web Log
July 21, 2006
Are Israel's Military Operations in Lebanon Proportional? Is Israel Guilty of War Crimes?
Gidon D. Remba
Doni Remba, President of Chicago Peace Now, examines UN claims that Israel is guilty of "war crimes" in Lebanon.
Referring to the Hezbollah-Israel conflict, UN Commissioner for Human Rights Louise Arbour has said that indiscriminate shelling of cities is a war crime; presumably this is meant to apply to Hezbollah's indiscriminate rocket and missile fire on Israeli cities. The Swiss International Red Cross, the "guardian" of the Geneva Conventions, has been explicit in saying that “Hezbollah fighters too are bound by the rules of international humanitarian law, and they must not target civilian areas."
But Arbour also has said, presumably with regard to Israeli strikes on civilian areas which harbor military objectives--such as rockets or armed Hezbollah guerrillas in private homes, villages or urban areas--that "the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable," and she has implied that such actions are war crimes for which military and political leaders may be held liable under international criminal law. But is it true that Israeli actions in
Both Protocol I and Article 28 of the Geneva Convention (IV) make clear that "the deliberate intermingling of civilians and combatants, designed to create a situation in which any attack against combatants would necessarily entail an excessive number of casualties is a flagrant breach of the Law of International Armed Conflict," according to international law scholar Yoram Dinstein (see his The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, pp. 129 - 130).| In short, Hezbollah is in violation of the laws of war when it places missiles and rockets in villages and homes in order to shield them from Israeli attack.
Article 51(7) of Protocol I states: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations." And the Geneva Convention (IV) holds that "The presence of a protected person may not be used to render certain points of areas immune from military operations." (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, Laws of Armed Conflicts, 495, 511.) Moreover, the Rome Statute is clear that "utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations is recognized as a war crime by Article 8 (2) (b) (xxiii)". (Dinstein, p. 130)
At the same time, Dinstein acknowledges that the principle of proportionality applies even in such cases when a belligerent has committed the war crime of using a civilian objective to shield its military forces or weapons from attack. "However, even if that is the case," he notes, "the actual test of excessive injury to civilians must be relaxed. That is to say, the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that -- if an attempt is made to shield military objectives with civilians -- civilian casualties will be higher than usual." (p. 131) Dinstein cites, inter alia, legal scholar L. Doswald-Beck who wrote regarding
The above considerations pertain to the norms deriving from treaty law (e.g., the Geneva Conventions). But there is another set of standards which are relevant to the question of proportionality which derive from another source of international law, known as customary international law. Together with treaties, customary law is one of the main sources of international humanitarian law (IHL), or the laws of war. Dinstein explains that "Customary international law is certainly more rigorous than the [
Dinstein further notes that "An obvious breach of the principle of proportionality would be the destruction of a whole village--with hundreds of civilian casualties--in order to eliminate a single enemy sniper. In contrast, if -- instead of a single enemy sniper -- an artillery battery would operate from within the village, such destruction may be warranted" under the laws of war. (pp. 122-123)
Bridges and Civilian Casualties
Advance Warning Before Attacking Military Targets in Areas Affecting Civilians
Article 57(2) of Protocol I of the Geneva Convention, like the Hague Convention of 1907, "prescribes that effective advance warning must be given of attacks affecting the civilian population, 'unless circumstances do not permit'...Warnings are designed 'to allow, as far as possible, civilians to leave a locality before it is attacked.'" (Dinstein, pp. 127-8) Israel has repeatedly given advance warning to civilians in areas containing military objectives it plans to target: in south Beirut, before it attacked the Hezbollah stronghold, it gave at least 48 hours advance warning via airdropped leaflets, and it did the same with civilians in southern Lebanon, an area from which Hezbollah has been indiscriminately launching rockets at Israeli civilians within Israel, and where Hezbollah guerrillas have built fortifications and store arms.
The Assessment of Proportionality
Several conclusions follow from this review of the international law of armed conflict. First, the international laws of war permit considerable civilian casualties and harm to civilians of various kinds within the ambit of lawful combat, so long as a combatant fulfills its conditions. Second, the principle of proportionality prohibits an attack on a legitimate military target only if the collateral civilian casualties would be disproportionate in relation to the specific military gain anticipated from the attack. An attack against a legitimate military target is a war crime if the incidental loss of civilian life is "excessive in relation to the concrete and direct military advantage anticipated." (Article 51 (5) (b) of Protocol I; Article 8 (2) (b) (iv) of the
Leonard Fein's new essay on the Americans for Peace Now website "Disproportionality Now" fails to take into account many of the key considerations which the laws of war mandate for assessing whether the harm caused to civilians is proportional. He does, correctly, raise the question of what military advantages are likely to be gained by
2) pushing Hezbollah's thousands of Katyushas beyond 12 miles of the border so that northern
3) the imposition of an effective multinational force along with the Lebanese army in southern Lebanon to replace the IDF and Hezbollah, thereby implementing a key provision in UNSC resolutions 1559 and 1680, and an international monitoring regime in the Bekaa Valley and the Beirut airport to prevent Hezbollah's rearmament, a proposal which has now won support from the US and several major powers;
4) reducing the number of missile launchers and longer-range missiles available to Hezbollah (it had only 62 Zelzal missiles threatening Tel Aviv and central Israel, and only 75 Fajr-3 and -5 missiles threatening Haifa, Israel's two most strategically important cities other than Jerusalem, before firing some and losing others to Israeli strikes);
5) restoration of a modicum of the deterrence which
a) create a disincentive against future attacks by Hezbollah and
b) foster the confidence necessary among the Israeli public for further withdrawal of Israeli settlements (though not of the IDF at this point) from as much as 90% or more of the West Bank, with such evacuations coordinated or negotiated with the Palestinians; such steps will, as the Israeli government has said, safeguard Israel's democratic and Jewish character, represent a giant step towards resolving the Palestinian-Israeli conflict, and promote the prospects for a future peace accord with its Palestinian neighbors;
6) dealing a blow to Iran's efforts to gain leverage over the major powers in talks over its nuclear enrichment program, while thwarting its attempts to enhance its stature in the Arab world over the moderate Arab states, by using Hezbollah to threaten and bleed Israel;
7) blocking Iran's efforts to sabotage Palestinian-Israeli accommodation by inflicting a strategic setback to Hezbollah through achievement of the above objectives.
All these are realistic potential outcomes of
Anticipated vs. Actual Outcome of Military Actions and Proportionality
Dinstein also notes that in making judgments as to the proportionality of an attack, "if an extensive air campaign is undertaken, it would be mistaken to focus on the outcome of an isolated sortie. It has been rightly emphasized that, pursuant to Article 8 (2) (b)(iv) of the Rome Statute, assessment of what is excessive is to be based on 'overall' military advantage anticipated. By introducing the word 'overall', the Statute 'somewhat broadens the scope of military advantages which may be taken into account': it permits looking at the larger operational picture and not merely at the particular point under attack." (Dinstein, p. 123) It seems clear that the anticipated military and strategic gains, which include better protecting from rocket and missile attack more than 2 million Israelis--and with Tel Aviv and central
Finally, from all this it follows that it is a categorical mistake to simply count the number of civilian Lebanese casualties, and then ask--is this too many in relation to whether Israel can "destroy Hezbollah", as the appropriate way for evaluating the proportionality of Israel's military actions in Lebanon. It is a mistake for at least two reasons: first, because it is arbitrary and unreasonable to treat "the destruction of Hezbollah," and Israel's inability to attain this objective, as the sole military advantage which should enter into the calculus; and second, because the absolute number of civilian casualties resulting from Israel's actions, while not irrelevant to that calculus, is not the primary determinant of proportionality in international law. This is so because the moral and legal responsibility for many of those casualties under international law falls squarely on Hezbollah. Many more of those civilian casualties are also permitted as proportionate under the laws of war even though they sometimes represent a considerable number, in absolute terms.
As horrible as it is for us to see hundreds of thousands of civilians fleeing from the war zone--and we should support immediate humanitarian assistance to the 45,000 of these (and all others) who need it--
(Gidon) Doni Remba
Gidon Remba, co-author of the forthcoming From Gaza to Jerusalem: A New Road to Middle East Peace?, served as senior foreign press editor and translator in the Israeli Prime Minister's Office during the Egyptian-Israeli Camp David peace process. His essays have appeared in the Chicago Tribune, the Chicago Sun Times, the New York Times, the Nation, the Jerusalem Report, Forward, Tikkun, the Jewish Journal of Los Angeles, JUF News and the Pittsburgh Jewish Chronicle.
Mr. Remba is President of Chicago Peace Now, affiliated with Americans for Peace Now. The views in this essay are solely his own and in no way represent the views of any organization.
New York Times
Attacks Qualify as War Crimes, Officials Say
By WARREN HOGE
UNITED NATIONS, July 19 — The United Nations’ top human rights official said Wednesday that the killing and maiming of civilians under attack in
“The scale of 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,” said Louise Arbour, the high commissioner for human rights.
Ms. Arbour is a former justice of
“International humanitarian law is clear on the supreme obligations to protect civilians during hostilities,’’ she said. That same obligation exists, she added, in international criminal law, which defines war crimes and crimes against humanity.
“Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians,” she said in a statement released by her
The Swiss-based International Red Cross, the recognized guardian of the Geneva Conventions on the conduct of war, said Wednesday that
At the United Nations, there was support for the view that the only way to spare more victims was to halt the fighting, but there was also evidence that the
“We think a truce is needed for humanitarian reasons,” said Jean-Marc de la Sablière, the ambassador of
But John R. Bolton, the American ambassador, said the notion that a cease-fire would solve the problem was “simplistic.” “Among other things,” he said, “I want somebody to address the problem how you get a cease-fire with a terrorist organization.”
“This is a different kind of situation,” he added, “and I’m not sure that sort of old thinking, conventional thinking, works in a case like this.”
Mark Malloch Brown, the deputy secretary general, said that “on humanitarian grounds but also to enable ultimately a sustainable solution to this, one which allows
An article yesterday about a statement released by Louise Arbour, the United Nations high commissioner for human rights, in which she said that the killing of civilians in the