War crimes, waffle and the war on terror

Since the commencement on July 12 of hostilities in southern Lebanon, there has been finger-pointing by both sides and their backers about Hezbollah’s and Israel’s alleged war crimes.

Laws governing conflict are complicated and subject to broad interpretation. They are only likely to be applied by nation states when political pressure makes it unavoidable, or to punish vanquished leaders and their minions who have killed prisoners.

International humanitarian law is the legal corpus comprised of the Hague and Geneva Conventions, as well as subsequent treaties, customary international law, and case law building on legal precedents, such as those established by the Nuremberg War trials. It defines the conduct and responsibilities of belligerent nations and individuals engaged in warfare, and their treatment of civilians.

The main effect of the Hague Convention of 1899 was to ban the use of certain types of modern technology, notably bombing from the air, chemical warfare, and hollow point bullets. The Hague Convention of 1907 modified the 1899 convention and focused more on naval warfare. It also created the doctrine of command responsibility for war crimes.

Because of the number of chemical warfare casualties in the World War I, there was a 1925 Geneva Protocol to the Hague Convention, banning all forms of biological and chemical warfare. This was augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).

There are actually four Geneva Conventions: the First dating from 1864, Second (1949), Third (1929), and Fourth (1949). Their main focus is on the humane treatment of wounded and sick combatants and prisoners of war, and the protection of civilians. The four conventions were last revised and ratified in 1949.

Nearly all 200 or so world nation states are signatories to the Geneva Conventions. All signatory states are required to enact domestic legislation to make grave violations of the conventions a punishable criminal offence.

In addition there are three Geneva protocols: Protocol I (1977), II (1977), and III (2005), generally relating to victims and distinctive emblems.

There are two parts to the laws of war: law concerning acceptable practice like the Geneva and Hague Conventions, is called jus in bello; while law concerning allowable justification for the use of armed force is called jus ad bellum.

The United Nations charter binds consenting nations in terms of what is legal and what is acceptable.

As a reaction to 9-11, the Bush Administration adopted several controversial extra-legal recourses including introducing “illegal combatant” status and “extraordinary rendition”, allowing torture under prescribed rules and, in 2003, unlawfully (as we now know) invading Iraq.

Attorney-General Gonzales’ advice to President Bush was that using the term “unlawful combatants” substantially reduced the risk of domestic criminal prosecution under the US’ War Crimes Act.

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.

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.