Israel Matzav

Operation Cast Lead's Qana moment?

Please vote for Israel Matzav as Best Midsize blog in the 2008 Weblog Awards by going here.

I trust you all remember what happened at Qana in southern Lebanon in 2006. On Sunday, July 30, 2006, the IDF attacked a civilian building that was being used by Hezbullah as a munitions depot. The building has a school and residence built directly over it. Hezbullah claimed dozens of civilians were killed in the attack. Israel agreed to stop bombing runs for 48 hours (sound familiar?). Eventually the 'massacre' was proven to be a hoax to which bodies were brought from other locations. Eventually, the entire 'rescue operation' was proven to be staged and directed by someone who became known in the media as 'Green Helmet Guy' (pictured). There was also evidence that Hezbullah placed handicapped children on the roof of the building in anticipation of an IDF response, hoping to increase the number of 'quality' casualties.

I mention all this because we may be on the verge of another Qana moment. Within the last hour or two, the IDF has bombed what is said to be a 'UN school' in Jabalya in northern Gaza. The news reports have already indicated 10, 20 and 40(!) killed and 'dozens' wounded. Here's JPost's report:

At least ten people were killed in an IDF attack on a UN-run school in the village of Jabalya in the northern Gaza Strip, according to Palestinian reports. There were reportedly also scores of wounded on the scene.

The United Nations said hundreds of people from a Gaza City refugee camp had gone to seek shelter in the school from Israel's 11-day offensive against the Hamas terror group.

The missile landed in a courtyard late Monday, also damaging the building.

"There's nowhere safe in Gaza. Everyone here is terrorized and traumatized," said John Ging, the top UN official in Gaza.

"I am appealing to political leaders here and in the region and the world to get their act together and stop this," he said, speaking at Gaza's largest hospital. "They are responsible for these deaths."

Al-AP adds:

U.N. officials say they provided their location coordinates to Israel's army to ensure that their buildings in Gaza are not targeted. The Israeli army had no comment on the latest strikes, but in the past has accused militants of using schools, mosques and residential neighborhoods to store weapons or launch attacks.

Munitions depot? Terrorist hideout? In any of these events, under the Geneva Convention, Israel has the right to hit the spot. In fact, Israel Radio is reporting that Hamas terrorists have been seen in Gaza dragging children by their ears into hiding places in the hope that the children's presence will prevent the IDF from targeting the terrorists.

This is from a post I did during the Lebanon War:

In an article published on the Wall Street Journal's OpinionJournal.com web page over the weekend, Orde F. Kittrie, a professor of international law at Arizona State University and who served in the Office of the Legal Adviser at the U.S. State Department from 1993 to 2003, summarized the three-part test in determining whether Israeli actions violate the Geneva Convention:

International law has three major prohibitions .... 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.

Ignoring the fact that Israel has warned Lebanese citizens to flee the combat zones dozens of times, given the manner in which Hezbullah has hidden both itself and its weapons among civilians, it is impossible to assert, let alone prove, that Israel is deliberately attacking civilians. But it is clear that Hezbullah has turned what remains of Lebanon's civilian population into human shields.

Hezbullah has hid rocket launchers just outside a hospital in Tyre, and adjacent (and possibly on the roof of) the infamous 'residential building' that Israel bombed in Qana ten days ago. Some people may have been surprised when Israel bombed "Christian areas of East Beirut," but they should not have been surprised if they knew that Hezbullah terrorists dressed in civilian clothing set up rocket launchers in the middle of a residential street in the Christian area of Wadi Chahrour in the east of Beirut, or that Hezbullah has been using Christian towns in southern Lebanon as launching points for rockets. At Qana, there have been accusations that Hezbullah placed handicapped children on the roof of the building that was bombed. Hezbullah has fired at troops from inside houses. They have hidden bunkers under civilian parking lots, and long-range rocket launchers in 'extra rooms' added onto homes. They have built schools and residences directly atop munitions depots. Given that the terrorists look like this

it is apparent that Israel is not knowingly targeting civilians when it goes after the terrorists, and given all of the evidence above, it should be obvious that Hezbullah is hiding among the civilian population. All of which means that if Israel is violating the Geneva Convention, it could only be on the basis of the third test: the so-called proportionality restriction.

Leaving aside for a minute that many bloggers have argued - including me - that there is no such thing as a 'proportional' response to Hezbullah's actions in this war,

Israel is not violating the Geneva Convention's proportionality requirement.

I have already noted that Orde Kittrie wrote that the proportionality test "involves a complicated and controversial balancing test." Kittrie goes on to explain:

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.

...

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. [But we know from countless testimonies that Israel is not mistaken and that Hezbullah is firing from among civilians. CiJ] 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. [There is no way to attack a munitions depot hidden beneath a house and a school without blowing up the house and the school. That would make any attack in which the civilians have been warned to leave the house and the school proportional per se. CiJ]

Israel did not expect civilian casualties; it warned civilians to leave Qana [and all areas south of the Litani at this point. CiJ]... The law of war recognizes that mistakes are inevitable, and does not criminalize soldiers who seek in good faith seek to avoid them.

Be on the alert. The next 'massacre' may have taken place this afternoon. Don't jump to conclusions based on Hamas propaganda until the IDF gives its version of what happened.

posted by Carl in Jerusalem @ 4:57 PM