Global Issues

The Justice of Jus in Bello

Human Rights Watch has a useful and balanced Q&A on the application of international humanitarian law to the current middle east violence. They answer questions such as whether Article 3 applies to both parties, and discuss the legality of many of the acts we have seen used by both sides – Hezbollah’s bombing of northern Israel, Islaeli bombing the Beirut airport etc. Perhaps most interesting is the question of civilian shields and subsequent casualties:

Can Israel attack neighbourhoods that house Hezbollah leaders or offices? And what are Hezbollah’s obligations regarding the use of civilian areas for military activities?

Where the targeting of a combatant takes place in an urban area, all parties must be aware of their obligations to protect the civilian population, as the bombing of urban areas significantly increases the risks to the civilian population. International humanitarian law obliges all belligerents to avoid harm to civilians or civilian objects.

The defending party – in the case of Beirut, Hezbollah – must take all necessary precautions to protect civilians against the dangers resulting from armed hostilities, and must never use the presence of civilians to shield themselves from attack. That requires positioning its military assets, troops, and commanders as much as possible outside of populated areas. The use of human shields is a war crime.

In calculating the legality of an attack on premises where a Hezbollah combatant is present, Israel must take the risk to civilians into account. It is not relieved from this obligation on the grounds that it considers Hezbollah responsible for having located legitimate military targets within or near populated areas or that Hezbollah may be using the civilian population as a shield. Even in situations of Hezbollah’s illegal location of military targets, or shielding, Israel must refrain from launching any attack that may be expected to cause excessive civilian loss in comparison to the concrete and direct military advantage anticipated. That is, a violation by Hezbollah in this regard does not justify Israeli forces ignoring the civilian consequences of a planned attack. The intentional launch of an attack in an area without regard to the civilian consequences or in the knowledge that the harm to civilians would be disproportionately high compared to any definite military benefit to be achieved would be a serious violation of international humanitarian law and a war crime.

Several months ago I saw Yoram Dinstein speak at St. Anthony’s. As intelligent and seemingly reasonable as he was, I got the same feeling from him as I do from reading such applications of international law to asymmetric conflicts. I know that many feel that international law unduly constrains western soldiers against the conflict tactics of non-state actors. Dinstein’s argument, for example was that Israel does not legally have to give captured combatants POW status. Indeed, perhaps this and other shifts are proportionate and just, but that is another discussion.

Can this same argument be turned around though? These laws were designed for warring states with large traditional armies. Contemporary asymmetric warfare and terrorism grew out of a response to such state forces. Their tactics and strategies are designed to circumvent the traditional technocratic large scale warfare that only states can wage. Setting aside the moral arguments for each side, is the application of international law, developed by states and for states, to these groups just?

For example, state armies argue that is it illegal to hide and fight amongst civilians. Further, they say that the resulting civilian casualties are an acceptable consequence of having to fight such illegal, and amoral, tactics. This, however, is exactly and predictably how weaker sides fight asymmetric urban war. We know this now, as we knew it before the Iraq war and before the strikes against Lebanon. I am not convinced that we can keep claiming that these civilian casualties, which are grossly disproportionate against the weaker side, are legally and morally justifiable under an international legal system that so greatly privileges our style of killing.

Does the application of international humanitarian law to asymmetric warfare give relative carte blanche to traditional armies? Does it matter?

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