Wednesday, January 28, 2009

A Positive Aspect to the Legalization of War

War is becoming ever more the subject of legal scrutiny and evaluation. Whether this is a good thing or not is a very complicated issue, since it has both positive and negative aspects. Eyal Benvenisti, a professor of law at Tel Aviv University comes from the side of the debate that thinks it's a good thing, while not, however, being a militant pacifist nor an enemy of Israel using legal gobbledygook to cast Israel as a monster. On the contrary. In his op-ed peice in Haaretz today he suggests how a correct use of legal tools will actually bolster Israel's ability to wage war:
"Fundamental examination" does not mean a government commission of inquiry or a criminal investigation. The object of the examination is to scrutinize the actions that were carried out, not to seek guilty parties (unless evidence requiring this is revealed in the course of the investigation). There is a wide gap between violations of the law, if any, and war crimes, which would require proof of intent to commit said crimes...

Second, the findings and conclusions of the investigation can be used to refute evidence and/or disprove allegations that might be raised in a legal proceeding abroad, if such takes place. And third, the limits of what is permissible and what is prohibited during warfare are not always clear. (For instance, what constitutes "excessive" incidental harm to a civilian population?) In their rulings, courts are inclined to consider what happened at the time. (Were alternatives weighed? Was there adequate advance preparation prior to the attack? Did the planners know there would be an investigation?) A fundamental investigation can serve as a basis for finding people innocent of the charges.

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