Middle East: Expert Discusses Issue Of War Crimes

What responsibility does Israel have to avoid civilian casualties when it bombs southern Beirut? (file photo) (epa) PRAGUE, July 26, 2006 (RFE/RL) -- Top UN officials, including UN High Commissioner for Human Rights Louise Arbour and UN emergency relief coordinator Jan Egeland, have cautioned the warring sides in the Middle East conflict that they could be committing war crimes.

What were they referring to specifically? What is the difference between a breach of humanitarian law and a war crime, and is it likely that anyone would ever be prosecuted for their actions in this conflict? RFE/RL correspondent Jeremy Bransten asked Horst Fischer, a professor of international law at Leiden University in the Netherlands.

RFE/RL: Did Hizballah commit a war crime when it captured two Israeli soldiers -- the act that began this latest conflict?

Horst Fischer: The position under international law of Hizballah is rather questionable. They are not related to the armed forces of Lebanon and they have no status as a party to the armed conflict and that means they commit a crime if they take hostage two Israeli soldiers. It would be different if the Lebanese armed forces had captured two Israeli soldiers and kept them. That would be an international armed conflict and would be what armed forces do. But Hizballah has no [international military standing], unlike the Lebanese armed forces.

RFE/RL: Does this mean Israel is justified in its response? There is a lot of talk about "proportionality" in this conflict. What is Israel entitled and not entitled to do, under international law?

Fischer: The right of self-defense, and that is what has been quoted most, is also limited by the principle of proportionality. There can be an argument made that Israel went [overboard] in their response to the [abduction] of the two soldiers, also in the response [to] Katyusha missiles sent from the south of Lebanon to Israel, because they have been attacking almost the whole of the territory of Lebanon, including Beirut and suburbs of Beirut. And the question is whether that is proportionate to the [Hizballah] attacks. It might have been sufficient just to attack the Katyusha sites in the south of Lebanon.

RFE/RL: What obligations to avoid civilian casualties do the warring parties have under international humanitarian law?

Fischer: There is a rule in one of the humanitarian law treaties, which requires you to apply precautionary measures, to limit the number of civilians getting killed by your attack. And secondly, you also need at all times of the attack -- in the planning phase but also in the implementation phase -- to verify that the object you are attacking still is a military object. And that is quite a high burden for the attacker to verify continuously what the object is and what the effects [of an attack] will be. We have to acknowledge that certainly in a city that is very difficult. And that's one of the reasons why I say we would need to ask the Israelis why they have been attacking [Beirut's] suburbs.

RFE/RL: When the UN's emergency relief coordinator, Jan Egeland, toured Beirut, he was asked whether he thought the Israeli bombardment constituted a war crime. He answered that it was a "breach of humanitarian law." What is the difference?

Fischer: There is a specific rule in humanitarian law that you cannot undertake [indiscriminate] aerial bombardments. You cannot attack a specific area without identifying specific military objects in the area. And probably he was referring to that as the attacks being a violation of that specific rule -- but without being able to verify, at that moment in time, whether the focus and narrow definition of a war crime, meaning to attack civilians directly [and intentionally], was undertaken by the Israelis.

RFE/RL: So to convict someone on war crimes charges you have to prove that they intentionally targeted civilians or intentionally ignored intelligence proving that civilians would be casualties of an attack?

Fischer: If there were a court case against one of the [Israeli] commanders or the soldiers, then a prosecutor would need to prove that the necessary precautionary measures were not undertaken and not applied and that maybe also intentionally, civilian objects or civilians were targeted. I don't think that was the case, but a prosecutor would need to prove that.

RFE/RL: That seems very hard to prove.

Fischer: It's very hard to determine, even when you're in Lebanon, when you see the effects but you don't know the exact circumstances of the attack. Let me give you one example. If an Israeli commander assumed that in a house, in the south of Lebanon, there were Katyusha rockets stored, certainly it would be legitimate for him to attack such a house. But then the question is what did he know or could have assumed about the effects of that attack: [that it would] kill just the person in the apartment where the Katyusha were, [that it would] kill the rest of the civilians in that house or even -- depending on the weapon he used -- [that it would] kill civilians in the vicinity of that house? So, you need all this type of information to say whether there has been a violation of humanitarian law or not. And that information is certainly not available.

RFE/RL: Can you be prosecuted for breaching humanitarian law instead of war crimes?

Fischer: No. You can only be prosecuted for war crimes. The result of such attacks, if they are breaches, is that there is a responsibility of the state, meaning if a commander breaches humanitarian law the state of Israel would be responsible for that, meaning that at the end of the war there could potentially be compensation [paid out.] But in the past that has hardly ever been asked for and if I remember correctly, it has never been paid. But legally, there is this obligation. And legally there is also the requirement to pay for damages.

RFE/RL: Are Hizballah's rocket attacks against Israeli cities and towns a war crime?

Fischer: This is certainly a war crime. There's no doubt about that. If you use a missile, a weapon that you cannot target but you know that it will explode somewhere, in a specific area, you are committing a war crime. That is so much without doubt that I don't need to say any more about it. In fact, if you know that this missile will explode in a city, but you don't know where in the city, you of course assume and accept that you will kill civilians, which is an [attack] directed against civilians. And that has been a war crime for the past 50 years.