Louise Arbour's unjust verdict 
Edward Greenspan
August 3, 2006
The Globe and Mail
Original Source: http://www.theglobeandmail.com/servlet/story/RTGAM.20060803.wxcogreenspan03/BNStory/specialComment/home

Louise Arbour is the High Commissioner of the United Nations Commission on Human Rights, whose members include such beacons of democracy and human rights as Zimbabwe, China, Sudan and Congo.
The UN General Assembly Resolution 48/141 of Dec. 20, 1993, which established the position and responsibilities of the high commissioner, does not mandate the threatening of criminal prosecutions for heads of state or their military. So that is why no high commissioner has threatened criminal prosecution of Russian leaders for torture and killings in Chechnya, or of China's rulers for their continuous violent crackdown against dissidents and violent suppression of the Falun Gong.
Nevertheless, the current UN High Commissioner for Human Rights exceeded her mandate when she threatened Israeli leaders, political and military, with criminal prosecution. In a remarkable and disturbing move, Ms. Arbour issued a press release on July 19 dealing with what she called the alarming situation in southern Lebanon.
This alarming situation was directly caused by the actions of Hezbollah, a Shia Muslim terrorist organization backed by Syria and Iran. The Lebanese government is responsible for the actions of Hezbollah, permitting it not only to exist but to attack Israel freely from Lebanon, in direct breach of the principles of international law that say a state has a general duty not to allow its territory to be used as a base for attacks on other states, and of Security Council Resolution 1559, which called for the disarming of all forces in Lebanon other than the Lebanese army. In any event, Hezbollah is actually part of the Lebanese leadership, as it holds 14 seats in Lebanon's 128-member parliament and has two cabinet ministers in the government.
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In case the world has short-term amnesia (which it seems to), on July 12, Hezbollah crossed a UN-delineated international boundary, that was meticulously drawn and recognized by the entire international community, to attack Israel, ambushing an Israeli patrol and killing eight soldiers and kidnapping two others. Simultaneously, Hezbollah launched scores of rockets from its mini-state in southern Lebanon into civilian centres in northern Israel. This was a sudden, deliberate and absolutely unprovoked attack into Israeli territory. There is no question that Israel's actions were a direct response to the act of war from Lebanon.
Seven days later, Ms. Arbour said the scale of the killings and their predictability could engage the personal criminal responsibility of those involved, particularly those in a position of command and control. Make no mistake: She was referring to Israeli Prime Minister Ehud Olmert, his key cabinet ministers and the Israeli army. She went on: The situation in the south of Lebanon is alarming. Never mind that what Hezbollah did in northern Israel is truly alarming! The bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable. Ms. Arbour's shameful insinuation is that Israel's defensive military act against Hezbollah terrorism may constitute a war crime because civilians have been killed.
Several days later, Jan Egeland, the UN undersecretary-general for humanitarian affairs and emergency relief co-ordinator, announced: Consistently, from the Hezbollah heartland, my message was that Hezbollah must stop this cowardly blending . . . among women and children. I heard they were proud because they lost very few fighters and that it was the civilians bearing the brunt of this. I don't think anyone should be proud of having many more children and women dead than armed men. If Hezbollah intentionally operates from large civilian areas, it maximizes the threat of civilian casualties in Lebanon. Responsibility for any additional civilian casualties must be blamed on Hezbollah. But we did not hear a word from Ms. Arbour softening her threat against Israel in light of Mr. Egeland's statement.
Collateral civilian deaths in a defensive military action have never been considered a war crime. Hezbollah, which started this war, is bombing only civilians. Its chief aim is the killing of civilian populations, including its own. Hezbollah is not a mere terror gang but a sophisticated and specially trained Shia organization backed by Syria and Iran. Ensconced in southern Lebanon, it has more than 10,000 120-mm Katyusha rockets with a range of 10 to 24 kilometres and a warhead of some 18 kilograms. So far, it has launched thousands of them. Hezbollah also has hundreds of Fajr-3 and Fajr-5 missiles. The Fajr-3, a 240-mm missile, has a range of about 50 kilometres and the Fajr-5, a 330-mm missile, 60 to 70 kilometres.
Article 51 of the UN Charter says there is an inherent right by a member of the UN to defend itself against an armed attack. The Geneva Conventions make it clear in Article 58 of Protocol 1, in requiring parties to a conflict to avoid locating military objectives within or near densely populated areas. In other words, Hezbollah, while cowardly hiding near apartment buildings, in homes or at schools, is in blatant and flagrant violation of the Geneva Conventions. If anyone is committing war crimes, it is Hezbollah.
Louise Arbour must know this. She also must know that Hezbollah sparked this war and launched the attack in Israel. Our UN High Commissioner for Human Rights surely knew that Israel completely evacuated Lebanon six years ago. She ought to have known that Hezbollah crossed a UN-delineated international frontier recognized by the international community to murder soldiers and take hostages. She ought to have known that it was an act of naked aggression. Indeed, she had to know it was an act of war under international law. She also knew that Security Council Resolution 1559 of 2004 called for the disbanding of Hezbollah, the disarming of all Lebanese and non-Lebanese militia, and the extension of Lebanese control over all Lebanese territory. This was a positive legal duty placed on Lebanon -- that is, to disarm Hezbollah and to assert Lebanese sovereignty in southern Lebanon. Lebanon failed in its obligations and, therefore, is in clear violation of international law. Did Ms. Arbour not know this?
She must also know that Hezbollah hides behind civilian hospital buildings, apartment buildings, residential homes and schools in Beirut and southern Lebanon when it fires its missiles, laden with ball bearings, into Israel, deliberately intending to kill civilians. As a former justice of the Supreme Court of Canada, Ms. Arbour surely must have known the difference between intent and accident. And, in her jobs as international war-crimes prosecutor and at the UN, she must have come across Article 28 of the Fourth Geneva Convention, which makes it clear that civilians may not be used to render certain areas or points immune from military operations. Hezbollah targets Israeli civilians. Israel targets Hezbollah terrorists. Does she not see this? Does she not appreciate that any nation, including Israel, has a responsibility and duty to protect its own citizens against attack, and imposes on a state the duty to deter further attacks?
The aim of international law is to restrain aggression. Such law should never be interpreted so as to leave a nation more vulnerable to attack than it would otherwise be. Louise Arbour seems to have embraced the UN model of condemning Israel for defending itself against attacks on its civilians and territory -- on its very existence.
New York Times columnist Thomas Friedman said that, when it comes to discussing the Middle East, people go temporarily insane. If that is Ms. Arbour's defence, I can forgive her. If that is not her defence, then she is ill-suited to be the UN High Commissioner for Human Rights.
Edward L. Greenspan is a Toronto-based criminal lawyer.