BBC: "Q&A: Mid-East war crimes?"

A recent statement from UN High Commissioner for Human Rights Louise Arbour has not gone unnoticed in the blogosphere. The inevitable BBC article has the charming title "UN warning on Mid-East war crimes." Now the BBC has a supplemental article from its "World Affairs correspondent," Paul Reynolds, in the form of questions and answers.

What international law applies in this conflict?

Although this is not a war between states, and only Israel is a party to the Geneva Conventions, it is generally reckoned that the conventions and other humanitarian law should apply, and that in any case what is known as "Common Article 3" of the 1949 Conventions, which outlaw attacks on civilians, should be followed.

Strictly speaking this article covers an internal conflict where one party is not the government but again most lawyers say it should apply in this case. Its main provision aims at protecting civilians. "Persons taking no active part in the hostilities... shall in all cases be treated humanely," it says.

Did they mean to write "does not cover"? This is very sloppy writing, but it goes with the sloppy moralizing.

Is Israel committing war crimes by causing civilian casualties?

The 1949 Geneva Conventions aimed to end attacks purely or mainly against civilians, a tactic used heavily in World War II. Article 51 of the First Protocol to the 1949 agreements states: "The civilian population as such, as well as individual civilians, shall not be the object of attack."

Article 52 adds: "Attacks shall be limited strictly to military objectives..."

Therefore, there is a war crime if civilians are specifically attacked as civilians. However, it is different if they are killed as a result of a strike against a military or a "dual-use" target.

Precautions to minimise casualties should be taken and one argument is about whether such precautions have been sufficient.

Nobody on the anti-Israel side of this argument ever gives any criteria for whether "precautions" are "sufficient" or not. We live in a time when there is no excuse for failing to distinguish normal warfare from the wanton targeting of civilians. The recent Mumbai bombings killed or mortally wounded over 200 civilians, not in several days, but in about 10 minutes.

What about "dual-use" targets?

This is a more complex area in which the target might have dual use. For example, are airports, roads, bridges and power stations military targets or are they civilian? And what about houses and apartments claimed by the attacking side to be used by fighters yet with civilians in or near them?

Article 52 tried to resolve this: "Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action..."

Precautions should be taken. And if there is doubt, the decision should be that the target is civilian.

The question is whether the target is making an "effective" military contribution. If it is a justified attack, then the killing of civilians as a result is not a war crime. However, there might be a case if it can be shown that the attack in fact became principally or largely one in which civilians turned out to be the targets and that the attacker should have known that.

And the whole question dissolves into vague goo. It isn't such a complex issue. "Are airports, roads, bridges and power stations military targets or are they civilian?" he asks. A person who cannot see the military application of an airport, a road, or a bridge is beyond hope.

What about Hezbollah's attacks on Israel?

Hezbollah is sending rockets into Israeli populated areas without accurate guidance systems and is therefore reckoned to be attacking civilians. According to Human Rights Watch: "Deliberately attacking civilians is in all circumstances prohibited and a war crime."

This question is of very little interest, but we try to be thorough here at the BBC.

And Hezbollah's capture of the two Israeli soldiers?

The "taking of hostages" is prohibited under Common Article 3.

Not to mention ordinary morality.

What defines "proportionality"?

This is a key question. Plan to be underwhelmed by its treatment here.

International law recognises that a state cannot take unlimited action in response to some incident. In the 19th Century, the British tipped an American boat, the "Caroline", over the Niagara Falls as they said it was helping Canadian rebels. It was subsequently agreed that retaliation was permissible but had its limits. In another case, in 1928, a tribunal held that German retaliation against some Portuguese troops for opening fire on them by mistake had been disproportionate.

In this case, the issue is whether Israel's actions following the capture of its soldiers were justified by their scale and tactics.

And what would be some criteria for determining that? The left doesn't care.

What is Israel's response?

An Israeli official said: "We feel that proportionality should be judged in terms of the threat we face. This is not just an issue of the kidnappings. Hezbollah has a huge arsenal and has fired 1,000 missiles at us. We are acting in self-defence.

"We are targeting only military objectives, including transport facilities that Hezbollah can use, but you have to remember that Hezbollah often hides in civilian areas. We sent flyers and gave other warnings to civilians to leave before our attacks.

And the BBC's Hezbollah's reaction?

Hezbollah has argued that its initial raid was to capture the Israeli soldiers to be bargained for and that it has retaliated with rockets because of strikes against Lebanon and its civilians. The Hezbollah leader Sheikh Hassan Nasrallah said: "When the Zionists behave like there are no rules and no red lines and no limits to the confrontation, it is our right to behave in the same way."

Hizbollah opened up another front in Israel's war against its ally Hamas. All the rocket and missile attacks in the last year are part of the over-all picture.

What has the UN Human Rights Commissioner said?

The Commissioner, Louise Arbour, has raised the possibility of prosecution. "The scale of killings in the region, and their predictability, could engage the personal criminal responsibility of those involved, particularly those in a position of command and control," she said.

"International humanitarian law is clear on the supreme obligations to protect civilians during hostilities.

"Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians.

"Similarly, the bombardment of sites with alleged innocent civilians is unjustifiable."

The quote as it appeared in the earlier BBC story that this BBC story supplements was "Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable." Sloppy.

Does this mean that there could be a war crimes trial?

That would not be easy. Israel is not a party to the International Criminal Court and nor is Hezbollah. There would have to be a separate procedure agreed by the UN.

"Agreed to by the UN." Kofi Annan could be the judge!

Has the International Committee of the Red Cross spoken?

Just what I was about to ask! Is that question-and-answer format getting to be a bit limiting, Paul?

Yes. The Head of ICRC Operations, Pierre Kraehenbuehl said: "The civilian population is bearing an extremely heavy burden and consequences of the military action that is under way.

"The high number of civilian casualties and the extensive damage to essential public infrastructure does raise, in our view, serious questions regarding the respect of the principle of proportionality in the conduct of hostilities."

Tikkun Olam states:

I have stated a number of times here that I believe that at some point in the future both IDF officers and Arab militant leaders should face international justice for their crimes against humanity.

The BBC's kind of guy!

Further thought: Send pizza to an IDF war criminal!

Tags: Israel, Lebanon, war crimes, Hizbullah, BBC, Hamas, journalism