Saturday, August 12, 2006

Jus ad bellum in the Middle East: History, Security Council, Human Rights Council

By Otto Spijkers

In March of 1978, Israeli forces invaded Lebanon and occupied most of the southern part of the country. This was a response to a deadly commando attack by the Palestine Liberation Organization (PLO) in Israel. The UN Security Council established a peacekeeping force, UNIFIL, “for the purpose of confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the government of Lebanon in ensuring the return of its effective authority in the area." (S/RES/426(1978)). Israel withdrew its forces completely more than twenty years later, in 2000 (S/2000/590), but recently returned and UNIFIL is still in Lebanon today.

On June 6, 1982, Israel invaded the southern part of Lebanon in order to defend itself against attacks by the Palestine Liberation Organization (PLO), committed from within Lebanese territory (S/12598). The Lebanese government claimed it was not to be blamed for the attacks, since it had no control over that part of Lebanon (S/12600, S/15087). During this escalation, UNIFIL remained behind the Israeli lines, with its role limited to providing protection and humanitarian assistance to the local population to the extent possible. In the same year Hezbollah was created, which has as one of its main goals the liberation of the southern part of Lebanon from foreign troops. The UN Security Council adopted a resolution calling on Israel to withdraw all its forces “forthwith and unconditionally” (S/RES/509(1982)). Israel complained: it wanted to exercise its right to self-defense, and did so, notwithstanding the SC resolution. France wanted a robust peacekeeping force in Lebanon, but the US vetoed a resolution establishing such a force (S/15255). A very critical General Assembly resolution, condemining Israel for non-compliance of Security Council Resolution 509 (1982), was adopted during an emergency session on the 26th of June (A/RES/ES-7/5(1982)), with only Israel and the US dissenting.

What is the situation now? Hezbollah continues to control the southern part of Lebanon, even though the international community frequently called upon the Lebanese government to take control over its entire territory (S/RES/1559(2004)). After an unprovoked attack by Hezbollah on Israel, killing eight Israeli soldiers and kidnapping two, Israel responded with overwhelming force, often criticised as disproportionate. The result is described by the Secretary-General in his address to the Security Council (minutes before the adoption of the resolution I will discuss in a minute):

"Too many of the victims have been children. In fact, more children than fighters have been killed in this conflict. Israeli bombing has turned thousands of homes to rubble. It has also destroyed dozens of bridges and roads, with the result that more than a hundred thousand people cannot reach safety, nor can relief supplies reach them. Such devastation would be tragic at any time. That it has been inflicted on Lebanon's people just when they were making real progress towards political reform and economic recovery makes it all the more so."

The response of the international community is late; a delay often explained by Israel’s granted wish to continue to defend itself and considerably weaken Hezbollah before an international peacekeeping force arrives. Last Friday, a resolution (S/RES/1701(2006)) was adopted by the UN Security Council. It says that Hezbollah must stop “all attacks”, while Israel must stop “all offensive military operations”. The resolution also calls upon "an increase in the force strength of Unifil to a maximum of 15,000 troops", to carry out the mandate of the resolution of 1978 and to "support the Lebanese armed forces as they deploy throughout the South." Hezbollah accepted the resolution, while Israel, before accepting the resolution, responded by further expanding its push into Lebanon, wounding one UN peacekeeper.

On the same day as the Security Council adopted its resolution, the UN Human Rights Council adopted its own resolution on the Lebanon issue, during its second special session - the first special session was on the human rights situation in the occupied Palestinian territory -, in which the Council “strongly condemns the grave Israeli violations of human rights and breaches of international humanitarian law in Lebanon”, and calls upon Israel to “observe the principle of proportionality and refrain from launching any attack that may be expected to cause incidental loss of civilian life.” It also called upon all parties to respect the rules of humanitarian law. This last general remark notwithstanding, the Human Rights Council has adopted a resolution very critical of Israel, while the Security Council resolution is quite different in character.

All symbols you see in this text are UN Symbols. You can use these symbols to find the documents in the UN Documentation Database, which is free and universally accessible.

Two pictures are of UNIFIL peacekeepers, and taken from the UNIFIL website. The third is a picture of the UN Security Council.

Thursday, August 10, 2006

Jus in bello: Discriminating between civilians and soldiers

By Richard Norman

The last two posts on this blog have discussed crimes of aggression and the ethics of war in an abstract, international context. These abstractions provide, I believe, a vital counterpoint to the visceral emotions currently overheating debate about the war between Israel and Hezbollah. Applying these criteria to this rapidly expanding conflict can help weed out the prejudicial and emotional rhetoric that characterizes what, to my mind, is a "just" exercise by the Israeli Defence Forces.

In this post I will examine only one of the most salient points of traditional jus in bello with regards to the Israel-Hezbollah conflict: the necessary discrimination between civilians and soldiers. (These criteria are based on Walzer's work and can be found in detail at the Stanford Encyclopedia of Philosophy). In a later post I will discuss the issue of proportionality.

Discrimination between civilians and soldiers.

Israeli Defence Forces doctrine states that "IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property." On occasions when Lebanese civilians have been killed or injured, IDF commanders and members of the Israeli government have apologized and stated that their goal is to do everything possible to avoid civilian deaths. Following the deaths of 28 civilians at Qana on 30 July, for example, Israeli Prime Minister Olmert released a statement, saying, "I express deep regret, along with all of Israel and the IDF, for the civilian deaths in Qana. Nothing could be further from our intentions and our interests than harming civilians - everyone understands that. When we do harm civilians, the whole world recognizes that it is an exceptional case that does not characterize us."

Hezbollah, on the other hand, makes no distinction between civilian and military deaths, neither in its engagement with Israel, nor with regards to the Lebanese population at large. The organization's website is currently down, but this manifesto from one of its founders contains the central tenets of its philosophy:

Our primary assumption in our fight against Israel states that the Zionist entity is aggressive from its inception, and built on lands wrested from their owners, at the expense of the rights of the Muslim people. Therefore our struggle will end only when this entity is obliterated. We recognize no treaty with it, no cease fire, and no peace agreements, whether separate or consolidated.
The obliteration of the entity of Israel would necessarily involve the deaths of every one of Israel's citizens, with no distinction being paid to civilians or soldiers. This is in keeping with Hezbollah policy of suicide bombings against civilian targets, kidnapping and killing civilians, and, as we see presently, rocket fire into Israeli cities intended to cause maximum civilian casualties.

Traditional (or external) jus in bello, relates to the ethics of engaging with an enemy. Internal jus in bello, relates to how a government or authority behaves towards its own people during a time of war. Once again the distinction between Israel and Hezbollah is clear. While Israel makes every effort to protect its own civilians (and has in fact entered a war with the express purpose of degrading Hezbollah's capabilities to attack its civilians), Hezbollah continues to use its own civilians as human shields, storing weapons in civilian homes and firing missiles from densely populated areas. (Here the Australian Herald Sun features photographs of Hezbollah blurring the boundaries between civilian and soldier.)

Israel is in the difficult position of fighting an enemy who is demanding "total war" from it (and who is fighting a "total war" against it). It has not yielded to the temptation to match the immoral and illegal tactics of its enemy.

Wednesday, August 02, 2006

Jus ad bellum and Jus in bello: On the Responsibility of Soldiers for the Crime of Aggression

By Hitomi Takemura

The laws of war and just war theory are normally thought to consist of two components: jus ad bellum ("law to war") and jus in bello ("law in war"). Jus ad bellum regulates the decision to resort to armed force. For instance, one decides whether the use of armed force constitutes aggression or self-defence in accordance with jus ad bellum. Jus in bello regulates the actual conduct during armed conflict. The distinction between these two sets of rules is made for assuring a proper application of jus in bello even in a situation of an established jus ad bellum violation. It is thus possible for a just war to be fought unjustly and for an unjust war to be fought in accordance with the rules.

A violation of jus ad bellum is mainly thought to be a matter incurring state responsibility. When it comes to individual criminal responsibility for a violation of jus ad bellum, the proposed definition of the crime of aggression reveals it is a leadership crime, committed by a person “being in a position effectively to exercise control over or to direct the political or military action of a State”.

Michael Walzer in Just and Unjust Wars wrote that : “[w]e draw a line between the war itself, for which soldiers are not responsible, and the conduct of war, for which they are responsible, at least within their own sphere of activity”. As a corollary to the distinction between jus ad bellum and jus in bello, foot soldiers and people who do not have effective control over the state act or military act should be immune from charges of jus ad bellum violations (at least in the context of international criminal responsibility).

Should this distinction of responsibility between leaders and soldiers be so simple? Walzer quoted Anne Frank’s Diary describing: “I don’t believe that only governments and capitalists are guilty of aggression. Oh no, the little man is just as keen on it, for otherwise the people of the world would have risen in revolt long ago”.

As far as state responsibility is concerned, state responsibility eventually comes down to people of the state, nationals. From this perspective, nationals of a state in question allegedly violating jus ad bellum indirectly bear responsibilities. Regarding moral (not criminal) culpability, Walzer admitted that it would seem possible to regard the entire group of knowledgeable people at least potentially blameworthy if the war is aggressive and unless they join the opposition. To say that, one needs to presume these people have knowledge and a private sense of political possibility. Since each soldier belongs to a state, soldiers as citizens of a particular state may be morally blameworthy in case of an aggression committed by their state. In this case, why do soldiers need to go to war and fight justly, while at the same time they are immune from the crime of aggression?

The sentence “Crimes against international law are committed by men, not by abstract entities” is included in the Nuremberg Judgment. So what is the responsibility of soldiers and normal citizens for the crime of aggression? To what extent are they responsible?