Newsgroup: it.politica.internazionale
Titolo: Qana, Israele e il DI. Un parere legale

http://jurist.law.pitt.edu/forumy/2006/07/qana-war-crimes-and-pending-un.php
Qana, War Crimes, and the Pending UN Resolution on Lebanon
JURIST Guest Columnist Anthony D'Amato of Northwestern University School of
Law says that the Israeli air strike on Qana that killed over 60 Lebanese
civilians has set the stage not only for possible war crimes prosecutions
but also for a potentially-robust UN Security Council resolution imposing a
UN peacekeeping force on the parties in an effort to stop the violence...
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  Secretary of State Condoleezza Rice was meeting with Israeli Defense
Minister Amir Peretz in Jerusalem on Sunday morning July 30th when news came
in of a two-missile strike on a house in Qana, Lebanon. So far, over 60
bodies of civilians have been recovered, the majority of them children. A
father of five who managed to escape lost his wife, sister, aunt, and all
his children, including a two-year-old. The pinpoint accuracy of the Israeli
missiles is not disputed.
As in the missile attack five days earlier on the United Nations Interim
Peacekeeping Force in southern Lebanon, the government of Israel again
stated that the attack was not deliberate and that it would be investigated.
Unfortunately Israel's disclaimers, no matter how sincere, have no
truth-value. They are like a judge entering a plea of "not guilty" on behalf
of a silent criminal defendant. Lawyers for Israel's government undoubtedly
advised the officials that unless they said affirmatively that the attacks
were not deliberate, they could severely impair their defense to a later
war-crimes prosecution.
It is worth pausing a moment to falsify the oft-stated claim that Israel's
leaders need not worry about war crimes because there is no international
court that has the jurisdiction to prosecute them. First, a strong argument
can be made that the International Criminal Court itself has jurisdiction
over the attack on the U.N. peacekeepers even though neither Israel nor
Lebanon are parties to the Court. For although the Statute of the Court says
nothing about crimes committed against the United Nations or its personnel,
the International Court of Justice (an organ of the United Nations) issued
an advisory opinion on April 11, 1949 known as the "Reparation for Injuries"
case. The ICJ recognized an "international personality" in the United
Nations. If one were to make a constructivist interpretation of the ICC's
statute (an endeavor perhaps less familiar to Continental than common-law
attorneys), the ICC might well find that it has jurisdiction over states
that attack UN personnel. Second, European nations are beginning to assert
jurisdiction over war crimes committed abroad even if their own citizens are
not involved. Last year a former Israeli military chief cancelled his trip
to London upon being warned that he could be prosecuted for war crimes that
he had allegedly committed in Gaza. The concept of "universal jurisdiction"
for war crimes and crimes against humanity is catching on in country after
country. Third, although the Israeli Prime Minister and Defense Minister are
immune from war-crimes prosecution anywhere while they are in office (under
a recent ruling by the ICJ), they lose their immunity when their term of
office expires. Fourth, they would have no immunity at all from prosecution
in Israel. This is extremely unlikely, of course, but the country could
later turn against them the way that Chile has decided to prosecute its
former ruler Augusto Pinochet for crimes against humanity committed during
his dictatorship.
In my view, the Israeli government did not receive creative legal advice
following the strike upon the UN peacekeepers. It should have immediately
arrested the crew of the F-16 that fired the missile and released their
detention photographs to the public. It should have said that the crew
members were being interrogated, and that court-martial charges against them
were possible. Instead, Israel suffered major public-relations damage
throughout the world by simply saying that the incident would be
investigated. If Israel had acted forthrightly and arrested the crew
members, the second missile attack in Qana might have been deterred.
Of course, it is possible that Israel did get such advice from its lawyers
but felt itself politically hamstrung by the military. The Israeli Air Force
(IAF) is technically an arm of the Israeli Defense Force (IDF) but, as is
true of most countries, feels that it is in competition with the ground
troops. One can infer from recent events that the pilots of the IAF believe
they can win the war all by themselves. After taking out the obvious
infrastructure targets, they apparently are beginning to drop bombs and
missiles indiscriminately. Their constant excuse is that the Hezbollah has
insinuated itself among the civilians and hence it is impossible to bomb
Hezbollah targets while avoiding collateral damage. Yet it may also be true
that the IAF believes that if they reduce the entire country to rubble, all
the Hezbollah terrorists will be buried along with the rest of the Lebanese
population: thus guaranteeing security for Israel.
It's possible that if the civilian government of Olmert-Peretz does not have
enough parliamentary clout to constrain the conduct of the IAF pilots, at
least it does have the power to curtail or stop their sorties over Lebanon.
It will be interesting to see if post-Qana Israel shifts its emphasis to
ground forces and away from air strikes. In my JURIST editorial last week, I
argued that the ineffectiveness of air strikes against the Hezbollah bunkers
coupled with the increasing likelihood of war crimes should push Israel
toward replacing its aerial bombardment with a massive ground campaign.
In any event, the Security Council will meet in the next few days to
consider a resolution calling for a cease-fire and establishing a United
Nations army to patrol the Lebanon-Israel borders. In the first week of the
war (July 13-20) a UN peacekeeping force was envisaged along the model of
the usual consensual force: that is, both Lebanon and Israel would have to
approve of the force. My guess is that the world has rapidly become
exasperated with Israeli attacks on the UN mission and on the civilian
target in Qana. There's a good chance that the UN will act if necessary in
the teeth of complaints or protests from Lebanon or Israel. This means that
Article 39 of the Charter will be invoked on the basis that there has been a
breach of the peace in the Middle East conflict. Such a finding would then
allow the Security Council to invoke its power to send in a United Nations
army (made up from national military contributions). Inasmuch as Israel and
Lebanon would have no choice in the matter, they might want to save face by
consenting to the U.N. resolution. However, Israel continues to insist that
no ceasefire is possible until Hezbollah is disarmed.
A peacekeeping force set up by the Security Council under its Chapter 7
powers would only be the second such force in UN history. The first, during
the Gulf War, was correctly referred to as a "Chapter 6˝" force, inasmuch as
it was run by the contributing military powers (mainly the United States)
and not by the Secretary-General (as would be the case with a pure Chapter 7
force). It will be interesting to see whether the Chapter 6˝ model is used
this time. If the bulk of the UN army is contributed by Turkey (as is
currently rumored), the major powers might be unwilling to let Turkey call
the shots. Chapter 6ž, anyone?
The big question is what Hezbollah will do. The representatives of Hezbollah
who are part of the Lebanese government have expressed their approval of a
cease-fire and a U.N. peacekeeping force so long as there are a few minor
concessions. But those governmental representatives might not be speaking
for Hassan Nasrallah, the Hezbollah leader.
While it is possible that Nasrallah might "quit while we're even," thus
enhancing Hezbollah's burgeoning reputation as the first Arab entity ever to
stand up to Israel's vaunted IDF, I think there is a more important
consideration that is rarely mentioned. Lebanon has a dozen good ports on
the Mediterranean that could receive shipments of rockets, missiles, and
launchers from countries such as Iran, Russia, and Syria, as well as from
private "merchants of death" who operate on a global scale. Even submarines
could be used to transport these weapons into Lebanon. If the Security
Council resolution provides for a peacekeeping blockade of these ports, or
if it leaves open to Israel the policing by air and navy of Lebanon's ports,
then I doubt that Nasrallah would agree to a cease-fire. On the other hand,
if access to Lebanon by sea is not realistically interdicted by the UN
resolution, then Israel may break with the UN. The Middle East crisis is
more dire than is generally appreciated.


Grazie Namib!
Taglio il tutto solo per risparmiare un po' di banda.
Son felice di vedere che non bisogna essere sempre esperti di DI e
l'emotivita`dettata dalla morale in ciascuno di noi , funziona allo stesso
verso.
Giano

 population: thus guaranteeing security for Israel.
[cut]
Vabbé, č il parere legale di Torrieri.
Tb