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War crimes, waffle and the war on terror

By Clive Williams - posted Wednesday, 9 August 2006


In practice too, post 9-11 war crime trials related to Abu Ghraib and elsewhere have stopped well short of indicting high-ranking Bush administration officials that had command responsibility.

This protection from the outcomes of questionable actions related to “the war on terror” has also extended to Israel, with the US either watering down UN censure of Israel or vetoing UN resolutions critical of Israel.

Hezbollah, while proscribed by some as a terrorist group, appears, at least in south Lebanon, to meet the criteria of being a guerrilla force. Such a force has a commander, a distinctive emblem, carries arms openly, and generally conducts operations in accordance with the laws of war. Under the Third Geneva Convention Hezbollah should be regarded as a lawful combatant but that also means its commanders could possibly be tried for war crimes.

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Hezbollah is culpable for war crimes because of its indiscriminate rocket attacks on civilian targets in Israel, and its taking of military hostages.

Protocol I of the Geneva Conventions seeks to extend legal combatant status to combatants not meeting the four criteria mentioned above, including terrorists. But Protocol I provisions are being effectively blocked from coming into meaningful force by the US, Israel, India, Indonesia, Iran and Iraq. Australia has indicated limited acceptance.

In my view, Israel is culpable for the same war crimes as Hezbollah, and additionally for what appears to be its disproportionate collective punishment of the Lebanese population - irrespective of whether or not Hezbollah uses it for cover. Israel should also not be attacking civilian targets such as Palestinian and Lebanese power stations and other civilian infrastructure.

Israel normally carries out “investigations” when it kills Palestinian and Lebanese civilians or Western foreigners and there is a strong international media reaction. There is usually a quickly-produced spin-doctored finding that Israel was not to blame.

Israel is doing itself a disservice. Many of its tactical “mistakes”, such as the shelling of the Gaza beach family, strikes on ambulances, and bombings of the UN bunker and Qana shelter, seem to be the actions of rogue individuals or poorly disciplined elements within the Israeli Defence Force. Israel would clearly have a more sympathetic international press if it had more transparent investigative and legal processes.

When major states like the US, Israel, and China are reluctant to try their own war criminals, the chances of those individuals facing the International Criminal Court are low. The US, Israel, and China have refused to participate in the court or permit the court to have jurisdiction over their citizens. This hardly suggests a high level of confidence in the legality of their actions against those that oppose them.

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An edited version of this article was first published in The Courier-Mail on August 4, 2006.



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About the Author

Professor Clive Williams has a career background as an officer in Australian Military Intelligence. He has worked and lectured internationally on terrorism-related issues since 1980, and started running terrorism courses at the ANU in 1996.

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