Changing the Laws of War: Conference Seeks to Legitimize Civilian Casualties

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The Institute for National Security and Counterterrorism In the United States and the Institute for Counter Terrorism in Israel are sponsoring a conference Oct. 8 in Washington to argue for changes in international humanitarian law--also called the "laws of war"--that protects civilians in armed conflict.

The conference, titled "New Battlefields, Old Laws," developed from a meeting between Mitchel Wallerstein, dean of the Maxwell School of Citizenship and Public Affairs at Syracuse University, to which the Institute for National Security and Counterterrorism belongs, and Boaz Ganor, director of the Interdisciplinary Center in Herzliya, Israel, home of the Institute for Counter Terrorism, during the Lebanon War between Israel and Hezbollah in summer 2006. What it amounts to is a public diplomacy exercise to conceal war crimes.

Dr. Ganor told The Jerusalem Post, "We talked about the frustration we had over how the world was relating to the war, mainly the claim that Israel wasn't responding with 'proportionality.'" Dr. Wallerstein told Yediot Ahronot, Israel's largest-circulation newspaper: "Last summer, the IDF [Israel Defense Force] faced the issue of human shields, and the storing of weapons in civilian areas. We've seen this in other places such as Somalia and the Balkans. We are likely to see this again. International law does not adequately deal with this issue." Dr. Wallerstein also said that Israel had "little alternative than to attack these [Lebanese] villages, both from the air and on the ground."

The concerns of Dr. Wallerstein and Dr. Ganor were not that Israel had in fact responded disproportionately to an armed raid by Hezbollah, and that Israel had bombed villages in Lebanon, but that Israel was criticized for its response and that international law did not validate these Israeli actions.

According to the conference Web site, "asymmetric warfare mounted by non-state terrorist groups ... leave the defending state with little choice but to respond in ways that inflict heavy casualties." An in-house publication of the Maxwell School also stated, "Terrorism often leaves the defending state with little choice but to respond in ways that inflict heavy civilian casualties."

The institutional assumption of the Maxwell School is that the infliction of heavy civilian casualties by the United States and Israel may be occasionally necessary, is inherently legitimate as the response of a "defending state" against "non-state terrorist groups," and thus requires validation under international humanitarian law. The goal of the U.S.-Israeli conference is to propose modifications to that body of law.

Before considering a new protocol to the Geneva Conventions, as the conference sponsors propose, it might be prudent to consider the nature of the heavy civilian casualties inflicted by the presumptive "defending states"--Israel and the United States--in three areas of recent and current conflict.

Lebanon

On July 12, 2006, Hezbollah militants conducted an armed raid into northern Israel, killing three Israeli soldiers and capturing two others. The raid was apparently intended to capture Israeli soldiers to trade for Hezbollah and Lebanese prisoners held in Israel. While hostage-taking is a violation of the laws of war, both Israel and Hezbollah have done it and have subsequently negotiated prisoner exchanges in 1985, 1998, 2000 and 2004. While the Hezbollah raid was deplorable, it was limited.

As such, the Hezbollah incursion did not constitute an "armed attack" under international law, whereby, in the generally accepted formulation, military forces cross an international boundary in visible, massive and sustained form, when the necessity for action is instant, overwhelming, and leaves no choice of means and no moment for deliberation. Since the right of "self-defense" under the U.N. Charter arises only if an "armed attack" has occurred, Israel's decision to bomb Lebanon in response to the Hezbollah provocation did not constitute self-defense under the U. …