The latest developments show how lawfare has become a strategy overshadowing political efforts to negotiate order.
By AVI BEKERlebanon unifil nasrallah 311(photo credit: AP)
Two recent developments in Lebanon show the extent to which international law has become a double-edged sword in the regional quest for stability and in international efforts to fight terrorism.As more analysts around the world look closer at last week’s flare-up along the border between Lebanon and Israel, it becomes evident that the incident is related to the long-expected report by the Hague Special Tribunal for Lebanon’s inquiry into the murder of former prime minister Rafik Hariri and 22 other people in a car bomb in February 2005. The immediate concern must be seen as part of the increasing internal tensions within Lebanon which is expecting the indictment of Hizbullah members by the Tribunal.The 2006 war with Israel was preceded by another investigation of the same murder by the United Nations which implicated Syria in the killing. The political balancing efforts in Lebanon, which brought together arch-enemies like Syrian President Bashar Assad and the Saudi king, as well as Sunnis, Shi’ites and Christians will fly in the face of any effort by an international legal organ to pursue justice in Lebanon and in the region.The second development was the IDF’s exposure last month of aerial photos, videos and maps showing how Hizbullah is once again ruthlessly violating the Law of Armed Conflict. Using Lebanese civilians in 160 villages as human shields and embedding weapons caches, missile stockpiles and command-and-control centers alongside hospitals, mosques and schools makes a mockery of international humanitarian law.These two ominous developments may trigger another round of violent hostilities on the Israeli-Lebanese front. They also demonstrate how lawfare, the abuse of the law as a weapon of war, has become a strategic feature which is overshadowing political efforts to negotiate political order within Lebanon and with its neighbors. It shows again the asymmetrical and double standard nature of international humanitarian law which doesn’t allow Western military forces to defend the lives of their citizens and cannot apply enforcement measures against rogue regimes and terrorists.FOR SEVERAL Islamist fighting groups and terrorist organizations in Afghanistan, Pakistan, Iraq, Lebanon and Gaza, the humanitarian principles of the Law of Armed Conflict had become the major source of inspiration and guidance. These methods of legal maneuvers in the battlefield are viewed by Islamists as a critical component in their strategic and tactical planning.They are well aware that Israel and other Western countries are bound by international law and the rules of engagement that flow from it, and they exploit it in a very cynical and brutal fashion.It is wrong to argue, as many legal experts claim, that existing international law is ill-equipped in dealing with the so-called “non-state” entities. It is true that traditional Law of Combat was built on the assumption of a conflict between two states which are striving for international legitimacy and would, therefore, abide by some measures of legal restraint. However, existing instruments of international law contain ample references which can cover acts of self defense and measures taken in the war against terrorism. The problem lies only with the politicization and selective interpretation of covenants which follow some more fashionable post-modern trends and are often inclined to glorify acts of terrorism.It becomes worse when a United Nations voting bloc comprised largely of undemocratic member states continues to dictate international human rights norms and can hijack, against the rules of the Charter, the debates and agenda relating to international peace and security.A fair reading of Hizbullah’s threats against the civilian population in Israel coupled with its brutal abuse of humanitarian rules can be easily recorded as systematic war crimes in their making. In addition the group continues to violate resolution 1701 of the Security Council which forbids the arming of groups outside the Lebanese Army. Thousands of missiles, rockets and huge ammunition are being smuggled to South Lebanon with the full cooperation of Iran and Syria and the blind eye of the government of Lebanon.
The fallacy and the serious omission by diplomats and legal experts lies in their disregard of the explicit responsibility of each party in armed conflict, including the defender, to protect its civilian population and remove it from military targets. The duty of “distinction” goes both ways and article 51.7 of the Geneva First Protocol emphasizes that while civilians are protected by the principle of distinction, no party can use its civilians as shield for its military objectives. It reads: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.”Hizbullah, which is today a full-fledged member in the Lebanese government, can no longer hide behind another distorted interpretation of humanitarian law and claim “non state” status. It should be emphasized: there are no restrictions in article 51 of the United Nations Charter regarding the exercise of the inherent right of self defense against non-state entities.Last week’s provocation by the Lebanese Army makes it even more responsible to the Hizbullah violations of humanitarian law and will nullify future claims that Israel violates the principle of proportionality in attacking targets inside Lebanon. When the enemy makes it a clear strategy of using civilian shields in its war effort it is permissible to use a large degree of force against multiplied targets, including infrastructure, as long as the force is intended to remove the continuing risk posed by its rockets.Lawfare has become a major arena for the delegitimization campaign against Israel. In the past Israel had to incorporate a doctrine of pre-emptive or preventive strikes to compensate for its very narrow margins of defense against variety of threats. While Israel should always maintain its high standards of moral and humanitarian behavior in combat it must tell the world that no army can endanger its soldiers in order to avoid hitting targets which are using civilians as shields. Israel must develop a “lawfare” preemptive strategy which will alert the world on the misuse and the moral collapse of international humanitarian law.The writer is former secretary general of the World Jewish Congress. He teaches in the MA program of diplomacy at Tel Aviv University and International law at the Law Faculty of the Ono Academic Center.
