Hezbollah and Lebanese civilians II

Matthias Kuntzel draws our attention to a letter from a Dr Mounir Herzallah that appeared on 30 July in the Berlin daily newspaper Die Tagesspeigel.

According to Dr Herzallah:

“Until 2002 I lived in a small village in southern Lebanon near Marjayoun, the majority of whose inhabitants were, like me, Shiites. After the Israeli withdrawal from Lebanon, it was not long before Hezbollah were in control in our village as they were everywhere else. Hailed as victorious resistance fighters, they seemed to be armed to the teeth, storing missiles in bunkers in our village. The social work of the Party of God consisted in building a school and some housing on top of the bunkers! A local sheikh laughingly told me that whatever happened the Jews would lose out, because either the rockets would be fired at them or, if they attacked the camp, international public opinion would condemn them for the civilian deaths. These people have not the slightest interest in the Lebanese civilian population; they use them as shields and, when dead, as propaganda. As long as Hezbollah are there, there will be no peace." [my translation]

Hezbollah and Lebanese civilians I

One of the two sides in the current conflict in Lebanon seeks the death of civilians*, the other seeks to protect them.

Hezbollah has been launching a hail of powerful rockets at civilian targets in Israel from residential areas in Lebanon. When an Israel counterattack against Hezbollah military installations kills Lebanese civilians, Hezbollah is overjoyed: it makes excellent propaganda. Whether Israeli or Lebanese civilians die, Hezbollah is happy.

The Israeli state endeavours to protect Israeli civilians and tries to get Lebanese civilians to flee to safety from the war zones. When it inadvertently kills Lebanese civilians, it suffers a propaganda blow. Whether Israeli or Lebanese civilians die, Israel is unhappy.

I support the side that is unhappy when civilians - Israeli or Lebanese - die. Those who hail Hezbollah as the “resistance”, on the other hand, are revelling in murder.

[*this link via Solomonia]

Guantanamo and international law - Part three

In the previous instalment of the series on Guantanamo and international law (Parts One and Two here), I looked at the Geneva Conventions setting out the so-called “Laws of War”, and argued that the United States administration is in fact playing by the rules in this area.

But what about its commitments under “international human rights law”?

Well, firstly, the reason for the quote marks around the phrase “international human rights law” is that it is by no means clear what real force and effects the relevant agreements have. Under the United Nations Charter, which virtually every country in the world has signed up to, member states pledge themselves to encourage and promote human rights, among other things. So the commitment here is to encouraging and promoting, not to achieving any particular goal or standard.

Moreover, since, for example, the Islamic bloc of states has repeatedly and without effective challenge asserted that human rights commitments cannot and must not conflict with Islamic law, it is clear that states and blocs of states can interpret the exact meaning of the rights in question and their related obligations more or less as they wish.

Nonetheless, for the sake of argument, we will treat human rights agreements as creating real commitments to measurable objectives. One such document, to which critics of US policies often refer, is the 1966 International Covenant on Civil and Political Rights (ICCPR).

So what have countries actually agreed to do under the ICCPR? Well, the first thing to understand is that, under article 4 of this treaty,

“In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from [i.e. suspending the operation of] their obligations under the present Covenant to the extent strictly required by the exigencies of the situation (…)”.

So most of the Covenant simply doesn’t apply where there is a public emergency such as that arising from the determination of groups such as al-Qaeda to inflict maximum damage by any means necessary on the United States.

Nonetheless, according to the Covenant some rights are non-derogable, that is to say they continue to apply even in a state of emergency. Of the non-derogable rights, only two seem to me to have relevance to Guantanamo. The first is article 16 which states that,

“Everyone shall have the right to recognition everywhere as a person before the law”.

The exact form that recognition should take is not stated here. The article simply says that a person’s legal status must be defined in some way, so that they can be subject to laws of some kind.

The Bush administration has clearly done what this article says it should, by defining the Guantanamo inmates as “unlawful combatants” and developing appropriate forms of judicial treatment (in this case special military tribunals).

The second is the pledge not to use torture or other forms of cruel inhuman or degrading treatment (article 7 of the ICCPR).

This is the one area where the US administration faces genuine legal and moral, as opposed to public relations, problems. When does an interrogation technique cross the line into cruel, inhuman or degrading treatment? Is it possible absolutely to rule out the use of such treatment in the fight against terrorists who will use “any means necessary” to achieve their aims? And if some form of cruel, inhuman and degrading treatment is considered necessary in extreme and strictly limited instances, should not a state reaching that conclusion make that clear in its treaty commitments?

Again, my impression is that the US administration and American public take these issues seriously, unlike many of their critics, who use imaginary violations of often non-existent commitments as weapons in their war against “US hegemony”.

[Link to an interesting paper on some of the issues discussed in these posts by a US army major].

Guantanamo and international law - II

The USA is accused of breaching “international law” by holding al-Qaeda suspects at Guantanamo Bay in Cuba. To find out if the charge sticks, we need to know what relevant commitments the USA has in fact made regarding the Guantanamo Bay prisoners, presumed to be members of an international terrorist movement that has declared war on the USA.

Our first port of call is the four Geneva Conventions setting out what is known in the trade as International Humanitarian Law or the “laws of war”. These Conventions take no view on the legality or otherwise of military action; they simply seek to limit the suffering it entails to what can be justified by strict military necessity.

The Geneva Convention we are interested in is the third, which deals with the treatment of prisoners of war.

So what have the parties, among them the USA, signed up to here?

In relation to a non-state movement like al-Qaeda, nothing, since article 2 clearly states:

“The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.

So the Convention is effective when two parties to the Convention are at war. Al-Qaeda, of course, is not a state and cannot be a party to this Convention.

However, it can be argued that in Afghanistan the adversary was not al-Qaeda, but its supporters in the Taliban government of Afghanistan, which as a state is party to the Conventions. But that won’t wash either, because, in order to benefit from the Geneva rights, a state’s forces are obliged, among other things “to have conducted their military operations in accordance with the laws and customs of war”. If al-Qaeda members were acting on behalf of the government of Afghanistan, then that government was responsible for al-Qaeda's military doctrine, based on unannounced attacks on civilian targets by persons disguised as civilians - a doctrine clearly in accordance with the "laws and customs of war".

Viewing them as neither lawful combatants, nor common criminals, the US administration therefore defined the Guantanamo captives as “unlawful combatants”.

There exists a Protocol to the Geneva Conventions (Protocol II) dealing with non-international armed conflicts (i.e., where one or more of the parties to the conflict isn’t a state). But since the USA has not signed it, it is of no relevance here.

Moreover, the fact that the Protocol exists and the USA has not signed it is enough to torpedo the credibility of claims that some unwritten “customary law” exists on the subject, as it does for example in the field of the uses of outer space. For such customary law to exist, it would have to be shown that all the most affected parties had adopted a common practice and approach, albeit without writing it all down. In the case of non-international armed conflicts, the USA, as one of the two main targets of global Islamist terrorism (the other being Israel), is clearly a most affected party AND has clearly rejected Protocol II.

Even so, the Geneva Conventions are not the only documents referred to by Guantanamo’s critics. There are also various international human rights treaties, which, it is claimed, guarantee rights to everyone under all circumstances, and even to unlawful combatants.

More on that next week!

Go back to Part One
Or forward to Part Three

Guantanamo and international law – I

Last week the United Nations Human Rights Commission published a report on the American detention centre at Guantanamo Bay in Cuba, alleging torture and fundamental breaches of human rights. International worthies – among them a UK cabinet minister, Peter Hain, and South Africa’s Archbishop Tutu – then queued up to voice their support for the UN’s call. The Bush administration, on the other hand, dismissed the report , insisting that the evidence of human rights abuses consists essentially of claims by former inmates for whom lying in the Islamist cause is a sacred duty.

Nonetheless, the material facts aside, many believe that the very existence of Guantanamo is, in some way, contrary to international law and consider this a damning criticism in itself of American policy towards detainees captured in the course of the war on terror.

But what exactly is this “international law” that the Bush administration is supposed to be breaking?

Given the absence of a world state able to make laws and enforce decisions, it has been argued that international law is simply political rhetoric dressed up in legal language.

Such dismissiveness is wrong. There is a baby in this bathwater, born of the marriage of two realities:

The first is the fact that States are independent, in the sense of having exclusive power over their territory. The second is that they are, nevertheless, unavoidably dependent on one another. Even military competition is a form of dependence, since each state’s behaviour is determined by what other states are doing so that, even in this sphere, states, in order to be able rationally to set their priorities, have an interest in knowing what other states are likely to do. In order to exert some influence over each other’s behaviour and ensure predictability, states may make binding agreements with each other.

Moreover, since governments are interested not only in pursuing the competition with other states, but also with keeping their own populations happy, they may well wish to develop forms of inter-national economic or technical cooperation that enable all boats to rise.

In any case, in whatever sphere, the underlying reality is this: international agreements are reciprocal arrangements – a country only signs up because other parties accept binding commitments towards it and is only bound by the agreement insofar as those other countries abide by it.

The basic legal principles needed to turn this reality into a system of international law are:

(1) once made, agreements must be kept and

(2) countries that breach agreements can and should be punished by offended parties withdrawing benefits from the offender. Proportionate retaliation is not only acceptable, it is necessary for the system to function.

In order to check a spiral of breach and retaliation, peace-loving and law-abiding countries may have resort to various kinds of formal legal proceedings and tribunals (such as the International Court of Justice in The Hague or the WTO’s dispute settlement mechanism) to establish responsibilities and restore the trust needed for the system to work.

However, direct diplomacy between the interested parties may well be more effective. Moreover, parties need to be sure that the judges in such tribunals are neither in the pockets of their adversaries nor on a massive ego trip leading them to make judgments based on their personal urge to make a splash, rather than on binding agreements which have actually been made.

As I will argue in part two, the Bush administration has not breached international law in this sense in Guantanamo Bay. This then raises the question of why so many people think that it has.

Go to Part 2
Go to Part 3