A War Crime at Qana?
By ORDE F. KITTRIE
August 5, 2006; Page A11
Mr. Kittrie is professor of international law at Arizona State University and served in the Office of the Legal Adviser at the U.S. State Department from 1993 to 2003.
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International law has three major prohibitions relevant to the Qana incident. One forbids deliberate attacks on civilians. Another prohibits hiding forces in civilian areas, thereby turning civilians into "human shields." A third prohibition, the proportionality restriction that Israel is accused of violating, involves a complicated and controversial balancing test. Geneva Convention Protocol I contains one version of the proportionality test, the International Criminal Court Statute another; neither is universally accepted. As a result, the proportionality test is governed by "customary international law," an amalgam of non-universal treaty law, court decisions, and how influential nations actually behave. It does not hinge on the relative number of casualties, or the force used, however, but on the intent of the combatant.
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At Qana, Israeli aircraft fired toward a building to stop Hezbollah from shooting rockets at its cities. The aircraft did not deliberately target civilians; but Hezbollah rockets are targeted at civilians, a clear war crime. U.N. humanitarian chief Jan Egeland last week called on Hezbollah to stop its "cowardly blending" among women and children: "I heard they were proud because they lost very few fighters and that it was the civilians bearing the brunt of this." If Hezbollah used Lebanese civilians in Qana as "human shields," then Hezbollah, not Israel, is legally responsible for their deaths.
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Israel's overall military goal is to survive attacks by enemies determined to annihilate it. Hezbollah leader Hassan Nasrallah has stated: "Israel . . . is an aggressive, illegal and illegitimate entity, which has no future. . . . Its destiny is manifested in our motto: 'Death to Israel.'" Thus Israel is attempting to prevent Hezbollah from using its 10,000 remaining rockets, and to implement the requirement of U.N. Security Council Resolution 1559 that Hezbollah be disarmed. Meanwhile, Hezbollah and Iran -- which provides this terrorist group with arms, direction and over $100 million a year -- are in continual violation of international law. Their calls for Israel's destruction violate the international genocide treaty's prohibition of "direct and public incitement to commit genocide."
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Israel is acting in self-defense and avoided killing civilians, even giving advance notice by phone to the occupants of homes targeted for attack as Hezbollah hideouts. While Hezbollah deliberately maximizes harm to Israeli and Lebanese civilians, Israel puts its soldiers at risk to minimize Lebanese civilian casualties.
The track record of many of Israel's most powerful accusers -- including China, Russia and the European Union -- is not nearly as good at balancing civilian risk against military goals. China killed hundreds of peaceful Tiananmen Square protestors in 1989. It has for five decades occupied Tibet, slaughtering tens of thousands; and it vows to invade Taiwan if it declares independence. Russia has fought since 1994 to suppress Chechnya's independence movement. Out of a Chechen population of one million, as many as 200,000 have been killed as Russia has leveled the capital city of Grozny. Chechen rebels pose no threat to "wipe Russia off the map." All of the leading EU countries actively participated in NATO's 78-day bombing campaign against Yugoslavia in 1999. The military goal was to stop Yugoslavia from oppressing its Kosovar minority. NATO bombs and missiles hit Yugoslav bridges, power plants and a television station, killing hundreds of civilians. Yugoslavia posed no threat to the existence of any of the EU countries that bombed it.
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