The Pitfalls of International Law
Thursday, January 22, 2009 at 6:00 am
Although human rights advocates breathed a sigh of relief when Israel and Hamas declared a cease fire last weekend, that tentative arrangement — already violated on Tuesday by Hamas rockets and Israel’s retaliatory air strikes — isn’t likely to silence the the broad claims of war crimes on both sides.
Incidents like the Israeli shelling of a UN relief agency in central Gaza last week prompted claims that its response to Hamas’s rocket attacks were indiscriminate, disproportionate and violated international law. Meanwhile, Israel, the United States and others have blamed Hamas for provoking the battle and breaking the law itself by targeting civilian neighborhoods with its rockets for years. On January 12, the UN’s Human Rights Council issued a non-binding resolution charging Israel with “grave violations” of human rights and called for an international mission of inquiry. (Thirteen countries abstained.) The next day, the former Canadian justice minister and McGill University law professor Irwin Cotler, a past president of the Canadian Jewish Congress, wrote in The Jerusalem Post that there is “almost no comparable example” anywhere in the world today of a group that so systematically violates international agreements regulating armed conflict as Hamas. Other, more neutral observers, such as Human Rights Watch, have criticized both sides – Hamas for firing rockets into civilian territories in Israel, and Israel for responding by using heavy artillery in residential neighborhoods and not providing sufficient access to humanitarian groups trying to alleviate civilian suffering.
The three-week war reportedly left more than 1,300 Palestinians, including about 700 civilians, dead; attacks by Hamas killed about 10 Israeli soldiers and three civilians.
There’s no question that international law is supposed to govern the Israel-Hamas conflict; but the persistent recriminations raise an important question: Does it matter? So what if Israel and Hamas are violating international humanitarian law, or even intentionally committing war crimes? Who’s going to stop them? It’s an age-old problem of international law; while the laws have been carefully negotiated and in some cases, interpreted over centuries, they’re notoriously difficult to enforce. And because they rely heavily on international pressure, advocates say the United States’ own refusal to apply international humanitarian laws such as the Geneva Conventions to its own conflicts with al Qaeda and the Taliban has undermined the influence of these laws on conflicts around the world.
“In general when you’re talking about international law enforcement, measures are weak and uneven,” said Jessica Montel, Executive Director of B’Tselem, a human rights group in Israel that monitors the occupied territories. “You don’t have an international court and police force and prosecutor’s office to investigate and arrest and try people the way a domestic court would function.”
As a result, perpetrators can often dismiss accusations of legal violations as biased and vindictive. The UN Human Rights Council, for example, is dominated by Muslim nations and their allies, and has managed to shield such countries as Iran and Zimbabwe from official investigations and condemnation, while issuing more than 15 different resolutions criticizing Israel in less than two years. Even toward Sudan, widely believed to have supported genocide, it has expressed only “deep concern.” So when the Council issued its condemnation last week, Israel was able to easily dismiss it as one-sided and reflecting the “fairytale world” of the 47-member Council.
Aside from the difficulty of applying the law objectively, experts generally agree on the relevant principles. First, the use of force is only lawful against militants who pose a direct threat, and not against civilians. That leads to the principle of distinction: an army can only attack a legitimate military target. And if a target is both military and civilian – a building where civilians gather, but where weapons are also stored, for example – soldiers must take reasonable care to avoid harm to civilians. Finally, they must weigh whether the military advantage gained is important enough to justify the harm. Many legal experts believe that at least some of these laws may have been violated by the United States in its own war, beginning with its decision to invade Iraq.
“On paper it’s very easy,” says Montel. “When it comes to applying them in a real live situation it can be complicated and you need information.”
In the Gaza situation, some instances are easier than others. “When Israel said, ‘we bombed the ministry of education because it’s a Hamas institution’, that’s a violation of the principle of distinction. Just because it’s a Hamas institution doesn’t make it a legitimate target.”
But if Israel says the institution is being used to store weapons or shield militants, it’s more difficult. “That raises first a factual question—are they telling the truth?” says Montel. “And if there were weapons, then it’s a proportionality case—was the use of force justified, and was it necessary?”
Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, elaborates: “If a civilian shoots at you, you can shoot back. The real problem comes in where there are both fighters and civilians in the same place. The question then is, are the people shooting from the school so important that you need to counter-attack on the basis of military necessity? Then you have to look at how many civilians will die if you target it. If so many civilians will die that the need to eliminate it is outweighed by the harm you do to civilians, then you can’t go after that target.”
Although emphasizing that she doesn’t have all the facts, O’Connell laments that from what she can tell, in terms of following international law, “they’re all doing badly. Hamas has no right to launch rockets into Israel, and there’s a serious question about the magnitude of Israel’s response.”
James Ross, senior legal advisor for Human Rights Watch, agreed. “We have not had access to Gaza, so it’s hard to make conclusions about specific instances at this point. But on its face, an attack that killed 40 civilians at a UN school may be disproportionate. Israelis said Hamas had a mortar unit there. We would look at, was Hamas trying to shield its forces by being close to the UN, or deploying troops in a way that puts civilians at risk?“
But Ross cautioned that “violations of one side don’t justify another. So even if Hamas was using civilians to shield its forces, that doesn’t give Israel the right to fire indiscriminately at those forces.”
The problem is, who can credibly investigate and determine what laws were broken, and then bring the perpetrators to justice?
“That is a concern,” said Ross. “What’s difficult under international law is that the responsibility rests with the government with authority over the individuals who committed the crimes. That’s historically not been terribly successful.” Indeed, both Israel and Hamas have poor record of investigating their own potential war crimes. That the United States has refused to investigate war crimes committed by the United States doesn’t help, he added. Human Rights Watch is one of many groups that have called on the United States to appoint a commission to investigate US violations of international humanitarian law.
Whether a country will be willing to investigate its own actions is “really a diplomatic chess game, in terms of the pressure it feels,” said Montel, referring to Israel. “And that pressure, if at all, will largely come from the international community.”
If a government still refuses to investigate on its own, there are several ways an international body could get involved. The UN Security Council could set up a special international court, such as it did with Rwanda or Yugoslavia. But given the high cost, slow pace and notorious inefficiencies of those courts, there’s little appetite to create more of them. The Security Council could also ask the International Criminal Court, or ICC, to investigate, even though neither Israel nor Hamas are parties to the treaty that created it. But the United States, which isn’t a party to the treaty either, would surely veto any such resolution, said Ross.
Human Rights Watch has called on the UN Security Council instead to authorize a commission of inquiry staffed by neutral and respected investigators to investigate how the actions of both sides comport with the laws of war. That, too, would require US support.
If that doesn’t work, there’s also the concept of universal jurisdiction, which allows national courts to try cases of grave crimes against humanity even if they were committed on foreign soil by leaders of other countries. Since the 1990s, more than a dozen such cases have been brought around the world, including the charges against Chilean dictator Auguso Pinochet brought by a magistrate in Spain, against former Israeli Prime Minister Ariel Sharon in Belgium, and against former Defense Secretary Donald Rumsfeld in Germany. Very few, however, have actually resulted in convictions, and countries such as Belgium, which had one of the broadest statutes asserting its universal jurisdiction in the world, in 2003 significantly restricted its reach under international political pressure.
The United States has prosecuted perpetrators of war crimes committed abroad, such as the recent conviction of Roy Belfast, a/k/a Chuckie Taylor, the son of Liberian dictator Charles Taylor, arrested in 2006 when he tried to enter the United States using a false passport. In October, he was convicted of, among other things, torturing Liberians between 1999 and 2003. He was sentenced to 97 years in prison.
But that example highlights the fact that which cases are prosecuted is as much a political as a factual question.
“Weaker powers are more likely to be held responsible for violations of the laws of war,” said Montel. “Russia or the US is not going to get to the ICC; meanwhile, it’s only African leaders that are investigated at the ICC. It’s not only the gravity of the crimes committed, it’s also your standing in the world.”
There’s less external pressure on powerful countries to investigate themselves as well. So, for example, although senior Pentagon official Susan Crawford recently acknowledged that the US military commissions at Guantanamo Bay would have to drop the case of Mohammad al-Qatani because he was tortured by US authorities, and although waterboarding has widely been viewed for many years as torture, the Bush administration repeatedly refused to investigate, let alone prosecute, whether US officials violated international humanitarian law. Meanwhile even Vice President Dick Cheney has acknowledged he authorized waterboarding. It’s not clear if Obama will change the government’s position on conducting a criminal investigation.
So does the political nature of its enforcement make international humanitarian law meaningless? Legal experts say no — although international pressure is critical.
“Most of the law is followed because it’s practical and useful,” said O’Connell. “Israelis don’t want to be violating this law. The history of warfare shows that when you ignore the rule of proportionality, for example, it creates so much anger that the war will never end. This law is taken very seriously on the battlefield.”
Although “the court aspect of international law is much weaker than in a criminal justice system,” agreed Ross, “there are other ways the law is enforced,” such as by the concept of reciprocity. Traditionally, “one reason you don’t torture is because you don’t want your citizens treated that way.”
That’s why many US military lawyers adamantly opposed the Bush administration’s approval of torture, humiliation and other harsh interrogation techniques that violated the Geneva Conventions, for use on suspected Taliban and al Qaeda fighters.
Human rights advocates abroad say the United States’ flouting of international law regarding its treatment of suspected terrorists has undermined enforcement of humanitarian laws around the world.
“Over the last five to 10 years you’ve had a real setback in terms of enforcement of the human rights laws,” said Montel, whose organization is based in Jerusalem. “You had a real loss of ground on something like torture. Nobody would have said that’s justified before the Bush administration. Also on arbitrary detention, the US at least used to talk the talk, even if you could criticize its foreign policy. But to have the US all of a sudden saying the prohibition on torture is not absolute, not to mention the conduct of its fighting in Iraq and Afghanistan, is a real setback.”
In Israel, she continued, “you see the rhetorical change. Even now, when we criticize Israeli behavior in Gaza, the automatic response is, ‘look at what the United States did in Fallujah.’ ” In the past, says Montel, the US embassy would speak out against torture or prolonged administrative detentions. But no longer. “In the last few years I haven’t even asked them,” she said.
The new Obama administration could improve the situation “on the level of moral leadership that the US provides,” said Montel. “My hope,” she said, is that the US once again provides “leadership by example.”
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