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Winograd Commission's appraisal of Israel's violations of international law during the war in Lebanon in 2006

The Winograd Commission published a lengthy report in the Hebrew language dealing with its assessment of the factual findings that came out of the investigation of the violations of international law during the War in Lebanon in the summer of 2006 (Israel has refused to refer to the conflict as a war and has consistently used the term “campaign” to describe the series of events). Many have commented and submitted extensive critique on its non-admissibility as a truth commission or investigative body when considered in light of the standards presented for such mechanisms by international law and more specifically in the Geneva Conventions in post-conflict situations.

The full and lengthy report on the results of the investigations and evaluations was published around February 2008. The reactions to the fruits of the commission’s work were characterised by a general distaste towards the structure of investigatory body and the technique that they had adopted, giving generally very little leeway to a nonpartisaned opinion to come out of the process (see one of many disdained remarks on the commission’s product). Recently, the “Chapter Fourteen: The Conduct of Israel in Light of International law”  has become available in the English language.

The chapter’s introductory comments commence with a rather reluctant footnote stating that the commission had decided “not to address questions involving the way that international law binds the State of Israel”, whilst adopting a “working assumption” that “it is appropriate to examine the conduct of the IDF in light of these norms, and this is what we have done”. The Commission confirms the sorrow expressed “for the harm inflicted on the citizens of Lebanon” and states that “[they] share this sorrow”. It then proceeds to shed light on the problematic of “the facts on the ground”, which they perceive to be at a dead end, as it “was not easy to answer, as the investigators had no access to the relevant places at real time” (para. 10 of the chapter).

The grain of the failures during the war was according to a considerable number of reports and assessments (also that made by Human Rights Watch, in a long and profoundly researched report on the occurrences during the war – “Why They Died? Civilian Casualties in Lebanon during the 2006 war” published in September 2007) the lack of appropriate and accurate legal counsel accessible at all times during the military operations. This is coupled with a general systematic failure to disseminate the laws of war  in an appropriate manner even in the course of the standard military training. The commission treats the issue of “legal counsel in real time to those who are in the actual combat situation” was limited and largely unsatisfactory. It holds that “it is appropriate that the combat forces, and certainly the field ranks, should concentrate on combat and not on consultation with legal advisers” (para. 31).

With no mention of the grossly indiscriminate and disproportionate use of force  during the Israeli military’s attacks, which were conducted in great part on non-military objectives, the commission notes that although “Israel’s ability to damage Hezbullah in a focused and direct manner was very limited” (para. 41), it submits as per the use of cluster bombs that it “did not find any deliberate deviation from the rules of international law” (para. 50). Instead of looking at the very least to apply the relevant legal norms to the acts of the armed forces, the commission uses this opportunity to make note of the necessity it sees in “adapt[ing] the laws of armed conflict to the changing conditions [i.e. the power of small groups to harm countries], while ensuring the right balance between protection of a state’s citizens from aggressors – and preserving human rights and rules of international law” (para. 44).

The commission’s regard to the innumerable instances of violations of international law during the war, it upholds openly, are only a gateway to what it sees should be “as immediate and reliable an investigation as possible of events in which concern arises regarding deviation from military law, the laws of Israel and the laws of armed conflict contained in international law”; notably, it holds that these should be “conducted or completed under the supervision of and together with a body external to the systems regarding whose action the complaint is made” (Recommendation No. 2, para. 53 of the chapter). The commission’s recommendations equally call for: (i) a “systematic and orderly dissemination of the laws of armed conflict in the state” (para. 52); (ii) “preparation for military responses in emergency and war” should be included in “preparation for military action” (para. 54); and (iii) the use of cluster munitions should be tailored to the rules for their use and their “instilment and enforcement” should be ensured (para. 56). The international community are yet to see whether this will become one more step in an endless bureaucratic labyrinth or a true consolation in an already long and fruitless process.

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The newly translated chapter is available on the recently uploaded website of a project of the Geneva Academy of International Humanitarian law and Human Rights, the Rule of Law in Armed Conflicts Project (RULAC), which has already collated a selection of interesting documents and sources on the situation in the OPT and many other regions. The project aims ultimately to report on every concerned State and disputed territory in the world, considering both the legal norms that apply as well as the extent to which they are respected by the relevant actors.

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