Newsgroup: it.politica.internazionale
Titolo: Qana. Un'altra opinione legale.

http://www.opinionjournal.com/extra/?id=110008756&mod=RSS_Opinion_Journal&ojrss=frontpage
The Qana tragedy has intensified accusations that Israel's actions in Lebanon 
violate international law. Every death of an innocent person is extremely 
regrettable; but there is no evidence Israel has committed any war crimes. In 
contrast, Hezbollah, Iran and Syria have clearly violated international law in 
this conflict. Moreover, Israel's conduct compares favorably to how its most 
powerful accusers have behaved when their own interests have been threatened.
International law has three major prohibitions relevant to the Qana incident. 
One forbids deliberate attacks on civilians. Another prohibits hiding forces in 
civilian areas, thereby turning civilians into "human shields." A third 
prohibition, the proportionality restriction that Israel is accused of 
violating, involves a complicated and controversial balancing test.
Geneva Convention Protocol I contains one version of the proportionality test, 
the International Criminal Court Statute another; neither is universally 
accepted. As a result, the proportionality test is governed by "customary 
international law," an amalgam of non-universal treaty law, court decisions, and 
how influential nations actually behave. It does not hinge on the relative 
number of casualties, or the force used, however, but on the intent of the 
combatant. Under customary international law, proportionality prohibits attacks 
expected to cause incidental death or injury to civilians if this harm would, on 
balance, be excessive in relation to the overall legitimate military 
accomplishment anticipated.
At Qana, Israeli aircraft fired toward a building to stop Hezbollah from 
shooting rockets at its cities. The aircraft did not deliberately target 
civilians; but Hezbollah rockets are targeted at civilians, a clear war crime. 
U.N. humanitarian chief Jan Egeland last week called on Hezbollah to stop its 
"cowardly blending" among women and children: "I heard they were proud because 
they lost very few fighters and that it was the civilians bearing the brunt of 
this." If Hezbollah used Lebanese civilians in Qana as "human shields," then 
Hezbollah, not Israel, is legally responsible for their deaths.
If Israel was mistaken and Hezbollah was not firing from or hiding amongst these 
civilians, the legality of its action is assessed by the proportionality test. 
Because the test is vague, there have been few, if any, cases since World War II 
in which a soldier, commander or country has been convicted of violating it. In 
the absence of guidance from the courts, determining whether Israel's military 
has failed the proportionality test depends on an assessment of what civilian 
casualties it expected, what its overall military goals are, the context in 
which the country is operating, and how the international community has in 
practice balanced civilian risk against military goals.
Israel did not expect civilian casualties; it warned civilians to leave Qana, 
and Israel's official investigation has concluded its military attacked based on 
"information that the building was not inhabited by civilians and was being used 
as a hiding place for terrorists." The law of war recognizes that mistakes are 
inevitable, and does not criminalize soldiers who seek in good faith seek to 
avoid them.
Israel's overall military goal is to survive attacks by enemies determined to 
annihilate it. Hezbollah leader Hassan Nasrallah has stated: "Israel . . . is an 
aggressive, illegal and illegitimate entity, which has no future. . . . Its 
destiny is manifested in our motto: 'Death to Israel.' " Thus Israel is 
attempting to prevent Hezbollah from using its 10,000 remaining rockets, and to 
implement the requirement of U.N. Security Council Resolution 1559 that 
Hezbollah be disarmed.
Meanwhile, Hezbollah and Iran--which provides this terrorist group with arms, 
direction and over $100 million a year--are in continual violation of 
international law. Their calls for Israel's destruction violate the 
international genocide treaty's prohibition of "direct and public incitement to 
commit genocide." Iran's effort to develop a nuclear arsenal that could 
obliterate Israel, or deter its responses to future Hezbollah attacks, violates 
the Nuclear Nonproliferation Treaty. Iranian (and Syrian) support for Hezbollah 
violates U.N. Security Council Resolution 1373, requiring states to "refrain 
from providing any form of support, active or passive, to entities or persons 
involved in terrorist acts." Hezbollah began the armed conflict with rocket 
attacks on Israeli towns and the abduction of Israeli soldiers: unprovoked acts 
of war violating an internationally recognized border.
Israel is acting in self-defense and avoided killing civilians, even giving 
advance notice by phone to the occupants of homes targeted for attack as 
Hezbollah hideouts. While Hezbollah deliberately maximizes harm to Israeli and 
Lebanese civilians, Israel puts its soldiers at risk to minimize Lebanese 
civilian casualties.
The track record of many of Israel's most powerful accusers--including China, 
Russia and the European Union--is not nearly as good at balancing civilian risk 
against military goals.
China killed hundreds of peaceful Tiananmen Square protestors in 1989. It has 
for five decades occupied Tibet, slaughtering tens of thousands; and it vows to 
invade Taiwan if it declares independence. Neither the Tiananmen protesters nor 
Tibet nor Taiwan has ever threatened to "wipe China off the map."
Russia has fought since 1994 to suppress Chechnya's independence movement. Out 
of a Chechen population of one million, as many as 200,000 have been killed as 
Russia has leveled the capital city of Grozny. Chechen rebels pose no threat to 
"wipe Russia off the map." All of the leading EU countries actively participated 
in NATO's 78-day bombing campaign against Yugoslavia in 1999. The military goal 
was to stop Yugoslavia from oppressing its Kosovar minority. NATO bombs and 
missiles hit Yugoslav bridges, power plants and a television station, killing 
hundreds of civilians. Yugoslavia posed no threat to the existence of any of the 
EU countries that bombed it.
Compared with how China, Russia, and the EU have dealt with non-existential 
threats--and despite the law-flouting behavior of Hezbollah, Iran and 
Syria--Israel's responses to the threats to its existence have been remarkably 
restrained rather than disproportionately violent.
Mr. Kittrie is professor of international law at Arizona State University and 
served in the Office of the Legal Adviser at the U.S. State Department from 1993 
to 2003.
-- 
Diario di guerra
www.tonibaruch.blogspot.com

Lebanon/Israel: IDF Fails to Explain Qana Bombing
Independent International Inquiry Required
(Beirut, August 3, 2006) - The Israel Defense Forces (IDF) inquiry
into the July 30 killing of at least 28 civilians in Qana is incomplete
and legally misguided, and contradicts eyewitness testimony, Human
Rights Watch said today. The findings underline the need for an
independent international inquiry into what took place.
 The Israeli military's explanation of what happened raises more
questions than it answers. Crucial information is missing to determine
what led the IDF to attack these civilians. Only an independent
international investigation can get at that.
"The Israeli military's explanation of what happened raises more
questions than it answers," said Kenneth Roth, executive director of
Human Rights Watch. "Crucial information is missing to determine what
led the IDF to attack these civilians. Only an independent
international investigation can get at that."
The IDF announced today that it targeted the building "in accordance
with the military's guidelines regarding the use of fire against
suspicious structures." Since July 12, Hezbollah fighters had
launched more than 150 rockets from Qana and the surrounding area, the
IDF said. The military said it attacked based on information that
"the building was not inhabited by civilians and was being used as a
hiding place for terrorists."
But the IDF failed to provide important details about the attack, Human
Rights Watch said. First, it did not say whether it believed that
Hezbollah fighters were in or around the building at the time of or
directly prior to the attack, which would potentially make the building
a legitimate target. Its failure even to make this claim suggests that
fighters were not present.
That conclusion was supported by two eyewitnesses interviewed by Human
Rights Watch, who said that Hezbollah was not in the area when the
attack took place. Human Rights Watch researchers who visited Qana the
day after the attack found no destroyed military equipment in or near
the home. None of the international journalists, rescue workers and
international observers who visited the scene has yet reported seeing
evidence of Hezbollah military presence in the area, and rescue workers
have not yet recovered any bodies identifiable as Hezbollah fighters.
Second, the IDF did not clarify why it believed that Hezbollah fighters
were in the building, rather than civilians. According to Muhammad
Mahmud Shalhub, who was in the basement during the attack, 63 members
of the extended Shalhub and Hashim families sought shelter in the
building when the first Israeli bombs hit Qana in the early evening of
July 29. It remains unclear why the IDF, with superior aerial
surveillance, did not know the families were there.
"Why did the Israeli military consider the building
'suspicious'?" Roth asked. "What information did it have to
reach that conclusion?"
The IDF also repeated previous statements that it had warned Qana
residents to evacuate, thereby suggesting that it was the victims'
fault because they chose to remain. But in Qana and other villages in
southern Lebanon, thousands of residents have been unable to leave the
area because they are sick, wounded, do not have the means to leave or
they fear Israeli attacks on vehicles.
"The Israeli military cannot warn people to leave and then attack at
will," Roth said. "The warnings are not an excuse to shoot blindly
at anyone who remains."
In a report issued today, "Fatal Strikes: Israel's Indiscriminate
Attacks Against Civilians in Lebanon," Human Rights Watch documented
a systematic failure by the IDF to distinguish between combatants and
civilians. In some cases, the timing and intensity of the attack, the
absence of a military target, as well as subsequent strikes on
rescuers, suggest that Israeli forces deliberately targeted civilians.
Of all the cases of civilian casualties included in the report, Human
Rights Watch found, none involved Hezbollah deliberately using
civilians as shields to protect them from retaliatory IDF attack.
Hezbollah has occasionally stored weapons in or near civilian homes and
placed rocket launchers within populated areas or near United Nations
observers. Such acts are serious violations of the laws of war because
they violate the duty to take all feasible precautions to avoid
civilian casualties. However, those violations did not account for the
many deaths recorded in the Human Rights Watch report. Nor do those
cases justify the IDF's extensive use of indiscriminate force, which
has cost so many civilian lives.