AMSTERDAM â€” Both Israel and Hizbollah fighters in Lebanon have been accused of war crimes during four weeks of conflict, but they are unlikely to go on trial anywhere but the court of public opinion.
A charity run by the son of Libyan President Muammar Qadhafi called on the International Criminal Court (ICC) on Wednesday to prosecute Israeli leaders for a deadly attack on a residential building in Qana that triggered outrage around the world.
But the ICC, set up in 2002 in the Hague as the first permanent global court to try individuals for genocide, war crimes and other major rights violations, said it could not act as Israel and Lebanon are not members of the court.
The Security Council can refer cases in non-member states to the ICC â€” as it did for the first time last year in the case of suspected crimes in Sudan’s Darfur.
But Washington would probably veto any attempt at referral of its close ally Israel.
“Internationally it is rather bleak. There is no jurisdiction of an international criminal court [in this case],” said Jan Wouters, professor of international law at the Catholic University in Leuven, Belgium.
“The first type of trial will be in the court of public opinion but the problem is that public opinion doesn’t have the tools and the information to really judge whether war crimes are actually committed,” he said.
The US-based group Human Rights Watch accuses Israel of a systematic failure to distinguish between combatants and civilians, and Hizbollah of killing civilians deliberately and indiscriminately.
The war, triggered when Hizbollah seized two Israeli soldiers in a raid on July 12, has cost the lives of at least 1,011 people in Lebanon, mostly civilians, and 116 Israelis, mostly soldiers.
Who gave orders?
Israel says its military goes to great lengths to avoid civilian casualties and accuses Hizbollah of using innocent people as human shields.
Hizbollah says it is defending Lebanon and accuses Israel of targeting civilians deliberately.
Israeli foreign ministry spokesman Mark Regev said Israel was confident its military was acting according to international law, but said the country’s own legal system could deal with accusations against any soldier accused of crimes.
“We have made every effort, despite the difficult situation, to act as surgically as possible,” he said.
Richard Goldstone, former chief prosecutor at the UN war crimes tribunal for the former Yugoslavia, regretted that the ICC could not deal with the conflict, noting that national courts only rarely put their own war crimes suspects on trial.
“Whether any of the actions by Israel constitute war crimes depends on the facts, it depends on what was known to the people who gave the orders and quite frankly I don’t know,” he said.
“This would be the great virtue of a truly international criminal court which would be able to â€” after the event â€” professionally investigate the facts,” he told BBC Radio.
Â “When that sort of thing happens it acts as a deterrent and provides information on which future action can be taken.”
â€˜Arithmetic of painâ€™
While an international court is unlikely to try individuals accused of war crimes, Lebanon could bring a claim for compensation against the state of Israel to the International Court of Justice (ICJ), also based in the Hague.
Lebanon’s Prime Minister Fuad Siniora has accused Israel of inflicting “barbaric destruction” and vowed to seek redress.
The ICJ â€” also known as the World Court â€” was set up after World War II to mediate in disputes between the 191 states which are UN members, including Israel and Lebanon.
The highest UN court is currently considering a claim by Bosnia for billions of dollars of compensation from Serbia and Montenegro for destruction caused in the 1992-95 Bosnian war.
The case took more than a decade to come to court due to protracted wrangling over whether the court has jurisdiction.
Any lawsuit brought by Lebanon would likely face the same fate, especially as the ICJ angered Israel in 2004 when it ruled that its controversial West Bank barrier violated international law.
“It is only able to pronounce if it has jurisdiction. Israel would have to recognise it, and it doesn’t have a very warm relationship with the ICJ,” said Professor Wouters.
Israel’s Regev said the Jewish state deserved compensation for damage caused by Hizbollah rockets in northern Israel: “The people who initiated this were the Lebanese side, and if anyone should be talking about compensation it is Israel.”
Even if a case were to come to court, legal experts say existing international law that seeks to protect civilians during wars between nations is not suited to ruling on conflicts involving non-state actors such as the Hizbollah fighters.
Harvard law professor Alan Dershowitz wrote in a recent article that the fighters had mastered the “arithmetic of pain” as civilian casualties on both sides help their cause.
“The misuse of civilians as shields and swords requires a reassessment of the laws of war,” he said.