International Law Professor Speaks on Lebanon War

Both Sides Broke Standards, but Israel Went Much Father

by MARK GABRISH CONLAN

Copyright © 2006 by Mark Gabrish Conlan for Zenger’s Newsmagazine • Used by permission

When Israel sent its army into Lebanon in mid-July as a response to a border raid from Hezbollah, the Shi’ite Islamic militia that helped drive Israel out of Lebanon six years earlier, the entire world took notice. But much of the media reporting on the war, especially in the United States, didn’t take into account the historical context of the attacks or analyze whether they met the qualifications of the Geneva Convention and the other international treaties governing the actions of nation-states at war. On September 21, the United Nations Peace Association sponsored a talk by San Diego State University international relations and international law professor Jonathan Graubart at the Hall of Nations in Balboa Park that attempted to put the conflict — and the earlier battle between Israeli forces and Hamas militants in Gaza — in context and analyze its rights and wrongs in terms of international law. His conclusion: both sides broke international law, but Israel’s violations were far greater and more serious than those of Hezbollah or Hamas.

“Hezbollah starts the most recent activities by a border incursion and kidnapping two Israeli soldiers,” Graubart explained. “That’s illegal, but Israel’s response is disproportionate. One rule in international law is that you don’t up the ante. Israel should have gone through diplomatic channels [to negotiate the release of Hezbollah’s prisoners] or at most staged a proportionate response. The massive bombing of Lebanon has no justification under international law.”

Graubart also explained the doctrine of “acceptable warfare,” defined in Common Article 3 of the Geneva Convention — a document that’s been in the news in the U.S. a lot lately because it also contains the prohibition against torture or “cruel and inhuman treatment” of prisoners or detainees which the Bush administration is trying to set aside on the grounds that it’s supposedly “vague.” The relevant part of Common Article 3 to the conflict between Israel and Hezbollah, Graubart explained, is the idea of “differentiation between civilian and military targets.”

According to Graubart, Common Article 3 flatly prohibits attacks on civilian targets “unless they’ve been converted to military use.” For so-called “dual-use” targets — ones which have both civilian and military uses — “the burden of proof is on the attacker” to show that the military value of hitting the target outweighs the collateral damage in civilian deaths and property destruction. This meant that Hezbollah’s rocket attacks on Israel were illegal — but, Graubart added, “the U.S. attack on Kosovo in 1999 was worse.” Graubart also said that Israel’s worst violation of international law was its open attack on Lebanon’s civilian population on the ground that they were “supporting” the Hezbollah militia. “Collective punishment of the broader population of Lebanon for ‘support’ of the militia is illegal,” he said.

Acknowledging that there is no institution with either the authority or the power to punish violators of international law the way criminal justice systems routinely punish people who break domestic laws, Graubart said, “What’s the relevance and value of international law? It’s useful, but it’s a status quo institution. It sets forth useful ideas about sovereignty and standards. Certainly, it’s biased towards the powerful. They have the biggest role in making and enforcing treaties. The United Nations Security Council is shaped by the great powers” — specifically the United States and the other four nations with veto power (Britain, France, Russia and China) — “and will be successful to the extent the great powers allow it to be.”

Graubart said that the attempt to use the U.N. to broker a cease-fire to the Israel-Lebanon war was hamstrung and delayed for over a month by both U.S. and Israeli intransigence. “There were quick international calls for a cease-fire [after the Israeli attack] but Israel and the U.S. didn’t agree,” he explained. “The U.S. got in the way of a cease-fire for a while, so a lot of people died.” Israel refused to agree to a cease-fire, Graubart said, because they staged the attack in the first place in order to disarm the Hezbollah militia completely — and it was only “in early to mid-August, when Israel’s political and military leaders realized they couldn’t utterly defeat Hezbollah,” that they agreed to the cease-fire embodied in U.N. Security Council Resolution 1701.

According to Graubart, Israel originally wanted that resolution to include a demand that Hezbollah disarm — thereby asking an international peacekeeping force to do what Israel’s own military hadn’t been able to — “but that would have been suicidal for an international force.” Graubart added that the attack on Lebanon had originally been supported by 80 percent or more of Israel’s population, but later Israeli public opinion shifted to a consensus, not that the attack was wrong, but “that it was militarily unwise.” One reason for that change of mind was the extent to which the attack boosted the prestige of Hezbollah, “not only in Lebanon but throughout the entire Middle East,” Graubart explained. After all, Hezbollah had held out against a vastly larger, better-equipped Israeli force for over a month — longer than the professional armed forces of Egypt, Syria and Jordan were able to do in their 1967 and 1973 wars with Israel.

In fact, while Israel’s motive for the attack was supposedly to disarm Hezbollah, “Israel’s actions were designed to stop any momentum for disarmament,” Graubart said. He also noted that, though the resolution provides for humanitarian aid to the people of Lebanon — over 700,000 of whom were made homeless by the Israeli attack — “at the U.S.’s insistence, it does not allow aid to go to areas controlled by Hezbollah.” Graubart said that this condition — which the U.S. is imposing on a lot of other international aid programs and peacekeeping missions — is dangerous not only because it punishes innocent Lebanese for living in the “wrong” part of their country, but also because a peacekeeping or humanitarian mission can function only if it’s seen as neutral, and the U.S. bans on aid in certain areas makes it look as if the aid workers have taken sides.

Graubart also mentioned the virtually forgotten prologue to Israel’s attack on Lebanon: a similar attack on the Palestinian outpost in the Gaza Strip between Israel and Egypt. That started much the way the Lebanese attack did: with a border incursion by Hamas, the combination guerrilla army, political party and social-service organization that now controls the Palestinian government. Hamas staged a raid on an Israeli military outpost on June 25, killing two Israeli soldiers and capturing one, and in response Israel “reacted with a full-scale raid and captured eight Hamas ministers” — all duly elected representatives in the Palestinian government. “Gaza is still a disaster,” Graubart said.

Much of Graubart’s talk dealt with the U.N. Security Council and how the United States “has become more assertive about trying to get the Security Council to go along with its actions” since it successfully won U.N. authorization for its first attack on Iraq in the 1990-1991 Gulf War. Though the U.N. hasn’t always gone along with the U.S. — “it didn’t go along with the blockade of Cuba or the 1989 invasion of Panama,” Graubart conceded — even on the U.S. conquest of Iraq in 2003, though the Security Council refused to authorize the war (actually the U.S. withdrew its request for a use-of-force resolution when it became clear there wouldn’t be a majority on the Council for one), “it did pass a hard-line resolution after the war and ratify the occupation afterwards.”

Graubart addressed two common criticisms about the U.N. — that it’s biased against Israel and it’s biased against the United States. “The Security Council can’t be biased against the U.S. because the U.S. is a permanent member with veto power,” he said — and as for the alleged “bias” against Israel, supposedly proven by a 1970’s resolution of the U.N. General Assembly equating Zionism with racism, Graubart said that while there may be “a considerable volume” of U.N. resolutions calling on Israel to return to its 1967 borders and allow the rest of occupied Palestine to become an independent country, “the Israeli-Palestinian conflict resonates throughout the Middle East and the resolutions generally seek a peaceful solution in conjunction with the United States.”