Blogs > HNN > HUMAN SHIELDS HURT IN GAZA AND SRI LANKA

Nov 10, 2006 1:48 am


HUMAN SHIELDS HURT IN GAZA AND SRI LANKA



Here we go again. Israel regrets the death of 20 civilians in Gaza. It was another heartbreaking a technical error of the type that are unavoidable in wars. It should not have happened it the Gazans stopped openly and purposefully shelling Israeli civilians. They only regret the failure of their missiles to kill and maim more Israeli civilians. They never need to express regret for the killing of civilians. They celebrate it as a victory. The same dynamic works in Sri Lanka. Colombo also regrets the death of 65 civilians in Tamil held area.

COLOMBO: Sri Lanka’s government has expressed regret over the killing of about 65 civilians in an artillery blitz on a rebel-held area, but blamed the Tamil Tigers for using human shields.

Government defence spokesman Keheliya Rambukwella said the military had targeted two Tamil Tiger artillery positions in Wednesday’s attack in the eastern district of Batticaloa, but admitted a civilian centre was also hit.

“While we regret this whole episode, we also must say that national security is uppermost in our minds,” Rambukwella said. “Actions by the defence authorities were inevitable.” The Liberation Tigers of Tamil Eelam (LTTE), he said, had been firing mortar and artillery at government positions, as well as civilian settlements, in the region for over a week. “The LTTE is using humans as shields to cover their operations,” Media Minister Anura Yapa said.

Daniel is right. Human shields are integral to terrorism. Terrorists routinely use and human shields and benefit from the death of human shields. The international media ignores the connection and instead blames the terrorized states.

International law fails to catch on and blames the victims. I posted bellow Avi Bell's essay on"How Should Israel Respond to War Crimes Accusations from the War in Lebanon?" It is not only Israel's problem. It always starts with the Jewish state. It never ends with the Jews. Will they ever learn?

Jerusalem Center for Public Affairs
Institute for Contemporary Affairs
founded jointly with the Wechsler Family Foundation

JERUSALEM ISSUE BRIEF
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.
* * *
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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