JURIST Guest Columnist Dr. Robbie Sabel of the
Hebrew University Faculty of Law in Jerusalem, Israel, says that many of the international law issues in the current conflict between Israel and Hezbollah come down to matters of common sense...
As in most aspects of law, one should look for the rule of common sense, and in the overwhelming number of cases that will also be the legal solution. This is as true in international law as it is in internal legal systems. This yardstick also applies to the rules regarding the use of force and to the rules of armed conflict.
The present armed conflict between Israel and Hezbollah raises a number of international law issues, among them:
- Do the laws of armed conflict apply to the situation in Lebanon?
- Do the laws of armed conflict bind Hezbollah?
- Is the Israeli response to the Hezbollah attack disproportionate?
- What are legitimate targets in such a situation?
- Is the Lebanese Government responsible for Hezbollah activities?
- Is it illegal to cause civilian casualties?
Is the Israeli response to the Hezbollah attack disproportionate?In
jus ad bellum the right of a State to act in self-defense [
1] is subject to the conditions of “necessity and proportionality.” [
2] A minor border incident, created perhaps by an overzealous soldier, only entitles a State to take measures of self-defense compatible with the severity of the incident, but not more than that. A recent author has commented, however, that ‘’where such activities clearly form part of a sequence or chain of events, then the test of proportionality will be so interpreted as to incorporate this.” [
3] Once armed conflict develops, a State is not, however, limited to responding only to measures chosen by its opponent. A State that takes aggressive armed action against another State, or permits its territory to be used for that purpose, cannot dictate the terms of the subsequent armed conflict. An aggressor State risks that its armed forces will be dealt a blow disproportionate to the attack it made. Except as regards civilian casualties [
4], proportionality is not part of
jus in bello and wars may be fought to defeat the military capabilities of an enemy aggressor and not only as an actuarial exercise.
In the context of the present Lebanon fighting, Hezbollah does not deny that the kidnapping of the Israel soldiers on July 12th was deliberate, premeditated and approved by the Hezbollah command. The attack was on an Israeli patrol in territory that is undisputed Israel territory. It was accompanied by a barrage of rocket attacks aimed against both military and civilian targets in Northern Israel. It followed a series of earlier Hezbollah attacks and attempts at kidnapping soldiers. It would clearly appear to have been an armed attack. [
5] Since the first Hezbollah barrage on the 12th of July, more than a thousand rockets have hit Northern Israel including the Israeli major town and port of Haifa. This is an armed conflict by any measure. In such an armed conflict it is legitimate for Israel to attempt to deal a critical blow to the military capabilities of Hezbollah. It has been said about Israel “it is a dangerous State; when attacked, it defends itself”. Military actions by Israel are, of course, subject to the limitations set out in the laws of armed conflict.
Do the laws of armed conflict apply to the situation in Lebanon and do they bind Hezbollah?The laws of armed conflict in all circumstances bind all States. It is irrelevant that Israel was the victim of an armed attack. The laws of armed conflict apply equally to the victim and to the aggressor. Hence the Israeli Army is bound to comply with all the rules applicable to an armed conflict and it has not denied such an obligation.[
6] These rules include those relating to treatment of prisoners, treatment of wounded, prohibited means of warfare and weapons, prohibition of attacks against civilians and behavior towards civilian populations. The Lebanese army is, needless to say, likewise bound. Israel is obliged to apply these rules against all in Lebanon including Hezbollah fighters.[
7] This is an asymmetry peculiar to the laws of armed conflict, Hezbollah knowingly and deliberately targets civilians and civilian targets in Israel but this does not exempt Israel from having to apply the rules to members of Hezbollah. Members of Hezbollah who commit war crimes or crimes against humanity are personally responsible and subject to universal jurisdiction.[
8] It makes little common sense however to talk about the legal obligations of an organization like Hezbollah, an organization defined in some States as a terrorist organization. Here again international law reflects common sense and organizations such as Hezbollah are not treated as a separate international legal entity.[
9] The responsibility for actions by groups such as Hezbollah rests with the territorial State.[
10]
What are legitimate targets in such a situation?In armed conflict legitimate targets are those “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage.”[
11] Hezbollah receives its armaments from Iran and Syria. These armaments include long-range missiles and missile launchers. During the present hostilities Syria has continued the supply of armaments. Roads, bridges and airports used in the supply of such weapons are legitimate military targets. Electric power stations and fuel depots are also considered legitimate targets though Israel has refrained from attacking them.[
12] Hezbollah headquarters in Beirut are a legitimate target. Civilian populations and civilian objects are not legitimate targets, and it would not be legal for Israel to attack Lebanese civilian government facilities that are not involved in the hostilities.
Is it illegal to cause civilian casualties? The rules of armed conflict are unambiguous. “The civilian population as such, as well as individual citizens, shall not be the object of attack.”[
13] “Civilian objects shall not be the object of attack or of reprisals.”[
14] However again international law reflects common sense as the rule is: “The presence of a protected person may not be used to render certain points or areas immune from military operations.“[
15] This is particularly relevant when military targets are situated in the vicinity of civilian population and civilian objects, as is the situation in the Lebanese context where Hezbollah armaments have been deliberately placed in civilian houses and installations. Missiles have been hidden in houses and mosques and Hezbollah headquarters were situated in a Southern suburb of Beirut. Common sense dictates that such positioning cannot grant the targets immunity from attack. In such circumstances the rule is that there must be proportionality as regards the amount of incidental or collateral civilian casualties. It is regretfully inevitable that there are likely to be civilian casualties when attacking such military targets. Armed forces however, are obliged to “refrain from launching any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and military advantage anticipated.”[
16] The attacking army must, moreover “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”[
17] The Israeli warnings to civilians to vacate Hezbollah controlled villages in Southern Lebanon were taken as a necessary step prior to attacking armaments in such villages. It saved countless lives of Lebanese civilian though the sight of villagers fleeing their homes has not added to Israel’s public relations image.
Is the Lebanese Government responsible for Hezbollah activities?International law rules against aggression apply not only to attacks by regular forces but also to “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular forces” “or its substantial involvement therein.”[
18] Hezbollah is part of the Lebanese Government and acts of Hezbollah can well be considered to be those of the Lebanese Government, notwithstanding that the Christian elements in the government have categorically disassociated themselves from the Hezbollah attack. Some elements of the Lebanese Army have collaborated with Hezbollah while as to the Lebanese government as such, at the very least it can be affirmed that they have taken no measures to prevent Hezbollah activity. Lebanon has a well-equipped army of some 50,000 soldiers however it has not even attempted to act against Hezbollah activities. Furthermore Lebanon is not in compliance with the UN Security Council resolution that called for “the disbanding and disarmament of all Lebanese and non-Lebanese militias” and supporting “the extension of the control of the government of Lebanon over all Lebanese territory.”[
19] Notwithstanding the direct responsibility of Lebanon, Israel has refrained from attacking Lebanese targets other than those directly involved in support of Hezbollah activities such as roads bridges and airports used for as routes for bringing military supplies to Hezbollah.
It should be added that even if Lebanon could prove that it had done all within its power to prevent Hezbollah activities but failed, this would not negate Israel’s right to take military action against Hezbollah and its support mechanism. If a State fails to prevent armed bands in its territory from attacking a neighboring state, the neighboring State, subject to the attack, is entitled to the right of self-defense against those armed bands.
Notes
1. In its Advisory Opinion on Legal Consequences Of the Construction Of A Wall in the Occupied Palestinian Territory (2003-2004) the ICJ ruled that Israel had no right of self-defense as regards acts emanating in the Occupied West Bank since it was not an armed attack by a State. In the opinion of this author it is an incorrect ruling however it is not relevant to the Lebanese situation, Lebanon being undisputedly a sovereign State.
2. Advisory Opinion, The Legality of the Threat or use of Nuclear Weapons, ICJ Reports 1996 p.226, 245. See also Nicaragua case ICJ Reports 1986. Para. 176.
3. Malcolm N.Shaw, International Law. Fifth ed., Cambridge (2003) p. 1032. Brownlie refers to an armed attack as including attacks by “powerful bands of irregulars’ in a “coordinated and general campaign.” I.Brownlie, International Law and the Use of Force by States, Oxford (1963). P.279.
4. See discussion of this issue below.
5. On Hezbollah preparations with the aid of Iran: Jomhouri-ye Eslami, speech given by Hezbollah Secretary-General Hassan Nassrallah on May 23, 2006: "We can hit Israel's entire northern region with thousands of rockets... All of Israel is now within the range of our missiles. Its seaports, [military] bases, industrial plants and everything else are all within our range...".
Iranian military source close to the Revolutionary Guards leadership revealed to the London Arabic daily Al-Sharq Al-Awsat details concerning Iran's role in training and arming Hezbollah: "The Revolutionary Guards established 20 permanent missile bases within the strip [running along] the Israeli border. They also equipped Hezbollah with mobile bases, [i.e.] medium-sized trucks that can carry and launch missiles. Between 1992 and 2005, Hizbullah received approximately 11,500 missiles and rockets, 400 short- and medium-range pieces of artillery, [and] Aresh, Nuri and Hadid rockets. Last year, Hizbullah first received a shipment of large 'Uqab missiles with 333-millimeter warheads, and an enormous supply of SAM7 shoulder-[fired] anti-aircraft missiles as well as C802 missiles, copied from Chinese missiles, two of which were used in the attack on the Israeli ship the day before yesterday." Al-Sharq Al-Awsat (London), July 16, 2006.
6. There has been no attempt for instance to deny applicability of Common Article 3, see debate in the US on this issue.
7. Members of Hezbollah however are not entitled to POW status on capture. They manifestedly do not comply with the conditions of Article 4 of the IIIrd 1949 Geneva Convention. Israel is not a party to the 1977 Additional Protocol I to the 1949 Geneva Conventions, and, furthermore, Hezbollah does not comply with the requirements of Articles 43 and 44 of the Additional Protocol.
8. Neither Israel nor Lebanon are parties to the Statute of the ICC hence the Court has no jurisdiction unless such crimes are referred to the Court by the UN Security Council.
9. In some conflicts the ICRC has encouraged non-State guerilla movements to declare that they will abide by the rules of armed conflict. The Hezbollah has taken no such step and they have avowedly declared that they are attacking civilian targets.
10. The Palestinian Authority is in this context in some ways sui generis since it does not operate in the territory of a sovereign State and it itself has many of the attributes of a sovereign State.
11. Article 52, Additional Protocol I to the 1949 Geneva Conventions.
12. Apparently with the exception of a fuel depot at Beirut airport attacked as part of the attempt to temporarily prevent the use of the airport.
13. Article 51 (2) 1977 Additional Protocol I to the 1949 Geneva Conventions.
14. Article 52 (1) 1977 Additional Protocol I to the 1949 Geneva Conventions.
15. Article 28, IVth 1949 Geneva Convention.
16. Article 57 (2) (iii) 1977 Additional Protocol I to the 1949 Geneva Conventions. Emphasis added.
17. Article 57 (2) (ii) 1977 Additional Protocol I to the 1949 Geneva Conventions.
18. ICJ Nicaragua case ICJ Reports 1986 para.195 quoting with approval from UN General Assembly resolution 3314 (XXIX).
19. UN Security Council Resolution 1559 (2004) .UN Doc. S/RES/1559 (2004). Dr. Robbie Sabel teaches international law at the Hebrew University Faculty of Law in Jerusalem, Israel and has served for many years as a Legal Advisor to the Israeli Foreign Ministry.
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