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The Applicable Law

Since July 12, 2006, Israel and Hezbollah have engaged in consistent and intense hostilities in which civilians in Lebanon and Israel have overwhelmingly been the victims. International humanitarian law governs the way in which the parties to an armed conflict should conduct themselves in the course of the hostilities.  International humanitarian law is primarily designed to protect civilians and other noncombatants from the hazards of armed conflict. International humanitarian law does not address the legitimacy of the belligerents’ reasons for having taken up arms or resorting to war.

The armed conflict between Israel and Hezbollah is governed by international treaties, as well as by the rules of customary international humanitarian law. Customary rules are based on established state practice and bind all parties to an armed conflict, whether they are state actors or non-state armed groups. Article 3 Common to the Geneva Conventions of 1949, to which Israel is a party, sets forth minimum standards for all parties to a conflict between a state party such as Israel and a non-state party such as Hezbollah.¹¹¹  However, Israel has asserted on several occasions since hostilities began that it considers itself to be responding to the actions of the sovereign state of Lebanon, not just to those of Hezbollah.   It has also made allegations about the participation of Iran and Syria.

The ICRC Commentary notes that the determination of the existence of an armed conflict between states in which the Conventions apply does not depend on a formal declaration of war or recognition of a state of hostilities.  Rather, the factual existence of armed conflict between two states party automatically brings the Conventions into operation.  Thus any hostilities between Israeli forces and the forces of Lebanon would fall within the full Geneva Conventions.

That said, for the purpose of assessing the lawfulness of attacks by aerial bombardment, artillery shelling or rocket attack, the requirements of the two sets of rules are essentially the same.  Many of these rules are codified in the first additional protocol to the Geneva Conventions, known formally as the Protocol relating to the Protection of Victims of International Armed Conflicts (Protocol I).  Although Lebanon and Syria have ratified Protocol I, Israel and Iran have not.

However, many, if not most, of the protocol’s provisions are considered reflective of customary international law.  This is particularly true for the norms relating to the conduct of hostilities relevant to this analysis. As a result, they bind all parties to the conflict.

Many issues of international humanitarian law have arisen during fierce combat in southern Lebanon and in relation to the bombardment of populated areas by the Israeli Air Force.  Most relevant to this report are questions related to the principle of distinction (issues related to precautions to be taken in attack as well as proportionality and indiscriminateness of the attacks), the protected status of relief personnel and personnel involved in peacekeeping operations, and the duty of both sides of a conflict to take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.  In this respect the parties must, to the extent feasible, avoid locating military objectives within or near densely populated areas and remove civilian persons and objects under their control from the vicinity of military objectives.   In particular, the parties must never use the presence of protected persons with the intent of rendering certain points, areas, or military personnel immune from military operations.  The use of human shields is a war crime.

Two fundamental tenets of international humanitarian law are those of “civilian immunity” and the principle of “distinction.”¹¹²  They impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former.

It is forbidden in any circumstance to carry out direct attacks against civilians; to do so intentionally is a war crime. The parties to a conflict must also refrain from threats or acts of violence the primary purpose of which is to terrorize the civilian population. ¹¹³ Also prohibited are “attacks against the civilian population or civilians by way of reprisals.”¹¹⁴ 

Apart from the prohibition on direct attacks against civilians and civilian objects, international humanitarian law prohibits indiscriminate attacks as a matter of both treaty and customary law.¹¹⁵  Indiscriminate attacks are those that are not directed against a military objective, those that employ a method or means of combat that cannot be directed at a specific military objective, or those that employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.  In each such case, these attacks are of a nature to strike military objectives and civilians or civilian objects without distinction.¹¹⁶

The “means” of combat refers generally to the weapons used while the term “method” refers to the way in which such weapons are used.

A corollary of the principle of distinction is the prohibition of area bombardment. Any attack, whether by aerial bombardment or other means, that treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians and civilian objects, is regarded as an indiscriminate attack and prohibited.¹¹⁷

Similarly, if a combatant launches an attack without attempting to aim properly at a military target, or in such a way as to hit civilians without regard to the likely extent of death or injury, it would amount to an indiscriminate attack. 

A deliberately indiscriminate attack that causes incidental death or injury to civilians or damage to civilian objects that is clearly excessive in relation to the concrete and direct overall military advantage anticipated from the attack is a war crime.¹¹⁸

International humanitarian law requires that the parties to a conflict take constant care during military operations to spare the civilian population and to take all feasible precautions to avoid or minimize the incidental loss of civilian life, as well as injury to civilians and damage to civilian objects.¹¹⁹   In its authoritative Commentary on Protocol I, the ICRC explains that the requirement to take all “feasible” precautions means, among other things, that the person launching an attack is required to take the steps needed to identify the target as a legitimate military objective “in good time to spare the population as far as possible.”¹²⁰

The parties to a conflict must always take precautions in identifying targets and planning or carrying out an attack. As part of the identification process, they must do everything feasible to verify that the chosen targets are military objectives; that is, that they are legitimately subject to attack. ¹²¹ If there are doubts about whether a potential target is of a civilian or military character, the assessment must be particularly scrupulous so as to dispel, to the maximum extent possible, any doubts about the civilian character of the person or object.   Military objects are those which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization offers a “definite military advantage.”¹²²  However, the warring parties must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective.  The same applies if the attack may be expected to cause excessive collateral damage.¹²³

Humanitarian law also determines that if the attacker has a choice between more than one military objective, each of which could yield similar military advantage, the objective selected must be the one that is expected to cause the least danger to civilians and civilian objects.¹²⁴

In general it is prohibited to direct attacks against what are by their nature civilian objects, such as homes and apartments, places of worship, hospitals, schools or cultural monuments, unless they are being used for military purposes. 

The mere fact that an object has civilian uses does not necessarily render it immune from attack. It can be targeted if it makes an “effective” contribution to the enemy’s military activities, and if its destruction, capture or neutralization offers a “definite military advantage” to the attacking side in the circumstances prevailing at the time.

However, with regard to such “dual use” objects, combatants must choose a means of attack that will avoid or minimize harm to civilians and damage to civilian objects. In particular, the attacker should take all feasible measures to cancel or suspend an attack if it becomes apparent that the expected civilian casualties would outweigh the importance of the military objective.   This principle of customary law is codified in article 57 of Protocol 1.¹²⁵

The ICRC Commentary on article 57 sets out a series of factors that must be taken into account in applying the principle of proportionality to the incidental effects of an attack on civilian persons and objects:

The danger incurred by the civilian population and civilian objects depends on various factors: their location (possibly within or in the vicinity of a military objective), the terrain (landslides, floods etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used etc.), technical skill of the combatants (random dropping of bombs when unable to hit the intended target).¹²⁶

Casualties that are a consequence of accidents, as in situations in which civilians are within military installations, may be considered incidental to an attack on a military objective—so called “collateral damage”—but care must still have been shown to identify the presence of civilians and to avoid or minimize the risk to them. As expressed in the ICRC Commentary, “the golden rule to be followed” when making determinations about the proportionality of an attack is “the duty to spare civilians and civilian objects in the conduct of military operations.” Even when a target is serving a military purpose, precautions must always be taken to protect civilians. Warring parties must also take all feasible precautions to minimize harm to civilians and civilian objects and to refrain from attacks that would disproportionately harm the civilian population or fail to discriminate between combatants and civilians.

Violations of the norms established above, when serious, constitute war crimes.    Conduct considered to be a war crime under customary law has been enshrined in the Rome Statute of the International Criminal Court.  That codification includes the so-called “grave breaches” to the Geneva Conventions and other serious violations of international humanitarian law as well as serious violations of Article 3 common to the Geneva Conventions. 

Of particular concern in the present conflict are the following acts that constitute war crimes:

• Making the civilian population or individual civilians not taking direct part in hostilities the object of attack.

• Making civilian objects, that is, objects that are not military objectives, the object of attack.

• Attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission.

• Causing incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated.

• Deliberately using civilians and civilian objects to shield troops and materiel from attack.