Legal Standards Applicable to the ConflictApplicable International LawThe armed conflict between Israel and Hezbollah in July-August 2006 fell within a body of law called international humanitarian law, also known as the laws of war. The sources of humanitarian law are treaty law and customary law, which bind both states and non-state armed groups. The most relevant treaty law to the 2006 conflict is the Geneva Conventions of 1949, to which virtually all states are party. Article 2 common to the 1949 Geneva Conventions provides for the full applicability of the conventions when there is an armed conflict between High Contracting Parties (that is, states), or when there has been a partial or total occupation of a High Contracting Party (even when that occupation meets with no resistance from the state).25 At least to the extent of armed hostilities between the states of Israel and Lebanon and Israeli control over Lebanese territory, the 2006 conflict was an international armed conflict. In general, the 1949 Geneva Conventions provide for the security and well-being of persons no longer taking part in the hostilities, namely captured combatants, the wounded, and civilians in the control of belligerent forces. They also provide special protections, for instance, to medical personnel and hospitals. There has been controversy over the humanitarian law applicable to Hezbollah. Unless Hezbollah forces are considered to be either a part of the Lebanese armed forces, or demonstrated allegiance to such forces, or were under the direction or effective control of the government of Lebanon,26 there is a basis for finding that hostilities between Israel and Hezbollah are covered by the humanitarian law rules for a non-international armed conflict.27 Under such a characterization, applicable treaty law would be common article 3 to the 1949 Geneva Conventions (the “treaty within a treaty”), which protects captured combatants and civilians from murder, cruel and inhuman treatment, being held as hostages, and unfair trials. Whether captured Hezbollah fighters would be entitled to the protections of the Third Geneva Convention for prisoners of war, the Fourth Geneva Convention for protected persons, or only the basic protections of common article 3, would depend on the legal characterization of the conflict and a factual analysis of Hezbollah and its relationship to the Lebanese armed forces. Such an analysis is not necessary for evaluating the conduct of the hostilities between Israel and Hezbollah, the focus of this report, because the governing substantive provisions would be effectively the same.28 International humanitarian law on the conduct of hostilities, traditionally known as “Hague law” because historically treaties regulating combat were drafted there, is set out in the Hague Regulations of 190729 and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I). 30 Protocol I, which provides the most detailed and current provisions on the conduct of hostilities during international armed conflicts, was not directly applicable to the 2006 conflict because Israel is not a party to the treaty. Nevertheless, many of the provisions of Protocol I have been recognized by states, including Israel, to be reflective of customary international law.31 Thus the legal analysis applied in this report frequently references norms enshrined in Protocol I, but as an important source of customary law rather than as a treaty obligation. Customary humanitarian law as it relates to the fundamental principles concerning conduct of hostilities is now recognized as largely the same whether it is applied to an international or a non-international armed conflict.32 Protections for Civilians and Civilian ObjectsInternational humanitarian law limits permissible means and methods of warfare by parties to an armed conflict and requires them to respect and protect civilians and captured combatants. “Means” of combat refers generally to the weapons used, while “methods” refers to the manner in which such weapons are used. The First Additional Protocol of 1977 to the Geneva Conventions (Protocol I) and the 1907 Hague Regulations lay out the law that protects civilians during armed conflict. Most of the relevant provisions of both treaties are considered customary law, rules of international law that are based on established state practice and are binding on all parties to an armed conflict, whether they are state actors or non-state armed groups.33 The two fundamental tenets of international humanitarian law are those of “civilian immunity” and “distinction.”34 They impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former. Article 48 of Protocol I states, “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”35 While Protocol I recognizes that some civilian casualties are inevitable, parties to a conflict may not target civilians and civilian objects and may direct their operations against only military objectives. Civilian objects are those that are not considered military objectives.36 Military objectives are combatants and those objects that “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, offers a definite military advantage.”37 In general the law prohibits 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.38 Civilian hospitals enjoy a status of special protection under the Fourth Geneva Convention beyond their immunity as civilian objects. Should they be used for committing acts harmful to the enemy outside their humanitarian duties, protection may cease “only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.”39 Additionally, the “fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered to be acts harmful to the enemy.” 40 Parties to a conflict must not make threats or commit acts of violence “the primary purpose of which is to spread terror among the civilian population.” 41 Reprisals that involve attacks against the civilian population are also prohibited. 42 Reprisals have been defined as an otherwise unlawful action “that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to unlawful acts of an adversary.”43 International law has outlawed any direct attack on civilians, whether in reprisal or not, in part because attacks ostensibly launched as reprisals often spur counterattacks by the other side and there is no end to the cycle of civilian injury and death. International humanitarian law prohibits indiscriminate attacks. As a matter of both treaty and customary law, indiscriminate attacks are “of a nature to strike military objectives and civilians or civilian objects without distinction.” Article 51(4) and Article 51(5) of Protocol I enumerate five kinds of indiscriminate attacks: those that 1) are not directed at a "specific military objective," 2) cannot be directed at "a specific military objective," 3) have effects that violate the Protocol, 4) treat separate urban military objectives as one (carpet bombing), or 5) violate the principle of proportionality. For example, 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. Similarly, 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 concentration of civilians and civilian objects, is regarded as an indiscriminate attack and prohibited.44 Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that are “expected to cause incidental loss of civilian life, injury to civilians [or] damage to civilian objectives . . . which would be excessive in relation to the concrete and direct military advantage anticipated” from that attack.45 The expected danger to the civilian population and civilian objects depends on various factors, including their location (possibly within or near a military objective), the accuracy of the weapons used (depending on the trajectory, the range, environmental factors, the ammunition used, etc.), and the technical skill of the combatants (which can lead to random launching of weapons when combatants are unable to hit the intended target).46 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.47 Feasible precautions have been defined as “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”48 In its authoritative Commentary on Protocol I, the International Committee of the Red Cross 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.” These precautions include:
Parties to a conflict are also prohibited from using civilians “to shield military objectives from attacks” or using their presence “to shield, favor or impede military operations.”56 If one party uses civilians as shields, however, the other must still follow international humanitarian law, avoiding indiscriminate attacks and taking precautions to protect civilians. “Dual-use targets” sometimes blur the distinction between civilian and military objects. Dual-use facilities, such as electrical and industrial facilities, are those that can have both a military and civilian application. A dual-use object may be a legitimate military target because it makes an “effective contribution to military action” and its destruction offers “a definite military advantage.”57 If not, it is a civilian object. Furthermore, the harm to the civilian population in its destruction may be disproportionate to the expected “concrete and direct military advantage,” rendering an attack impermissible.58 In assessing potential targets, military planners carefully must balance the concrete and direct military advantage of destroying these facilities against the expected harm to civilians and damage to civilian objects.59 With respect to individual responsibility, serious violations of international humanitarian law, when commited with criminal intent, are war crimes. This would include deliberate attacks on civilians, as well as indiscriminate and disproportionate attacks when done with knowledge or reckless indifference to their illegal character. Individuals may also be held criminally liable for attempting to commit a war crime, as well as planning, instigating, assisting in, facilitating, aiding or abetting a war crime.60 Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.61 25 Article 2 common to the 1949 Geneva Conventions. 26 See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), International Court of Justice, Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986. See also Prosecutor v. Tadic, International Criminal Court for former Yugoslavia, Case No. IT-94- I-T, May 7, 1997. 27 According to Marco Sassoli, “More controversially, the law of international armed conflicts applies when a state is directing hostilities against a transnational armed group on the territory of another state without the agreement of the latter state (e.g., Israel in Lebanon in 2006, if we consider the acts of Hezbollah not to be attributable to Lebanon).” Marco Sassoli, “Transnational Armed Groups and International Humanitarian Law,” (Cambridge, Massachusetts: Program on Humanitarian Policy and Conflict Research, HPCR Occasional Paper Series, No. 6, Winter 2006), p. 5, http://www.hpcr.org/pdfs/OccasionalPaper6.pdf (accessed June 6, 2007); but see, Kenneth Anderson, “Is the Israel-Hezbollah conflict an international armed conflict?” July 14, 2006, at http://kennethandersonlawofwar.blogspot.com/2006/07/is-israel-hezbollah-conflict.html (accessed June 6, 2007): “The Israel-Hezbollah conflict is not, on first pass, an international one, because Hezbollah, while a party to a conflict, is not a party to the Geneva Conventions.” 28 Depending on the status of Hezbollah forces, legal issues could arise as to whether Hezbollah fighters may be subject to lawful attack as combatants or as civilians “directly participating in hostilities.” 29 Convention (IV) Respecting the Laws and Customs of War on Land and the Annexed Regulations Concerning the Laws and Customs of War on Land of 18 October 1907 (Hague Regulations), 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force January 26, 1910. Israel, like many states established after the Second World War, is not party to the Hague Regulations. 30 Under article 96 of Protocol I, non-state actors may commit, under certain specific circumstances, to apply the Geneva Conventions and the protocols if they declare their willingness to do so to the Swiss government. 31 See Yorem Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), pp. 10-11 (the “Hague Convention (IV) of 1907 has acquired over the years the lineaments of customary international law” and “[m]uch of the Protocol may be regarded as declaratory of customary international law, or at least as non-controversial”). See generally ICRC, Customary International Humanitarian Law. 32 One important difference relates to reprisals, which are permitted in very limited circumstances during international armed conflicts but not in non-international armed conflicts. 33 See generally International Committee of the Red Cross, Customary International Humanitarian Law. 34 Protocol I, arts. 48, 51.2, 52.2. 35 Protocol I, art. 48. 36 Protocol I, art. 52.1. 37 Protocol I, art. 52.2. 38 ICRC, Customary International Humanitarian Law, rule 8, citing military manuals and official statements. 39 Geneva IV, art. 19. 40 Geneva IV, art. 19. 41 Protocol I, art. 51.2. 42 Protocol I, art. 51.6. 43 See ICRC, Customary International Humanitarian Law, p. 513. 44 Protocol I, art. 51.5(a). 45 Protocol I, art. 51.5(b). 46 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff, 1987), p. 684. 47 Protocol I, art. 57. 48 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1342 U.N.T.S. 171, 19 I.L.M. 1534, entered into force Dec. 2, 1983, art. 1(5). 49 Protocol I, art. 52.3. 50 Protocol I, art. 57.2. 51 Protocol I, art. 57.2. 52 Protocol I, art. 57.2. 53 Protocol I, art. 57.3. 54 Protocol I, art. 58.b. 55 Protocol I, art. 58.a. 56 Protocol I, art. 51.7. 57 Protocol I, art. 52.2. 58 Protocol I, art. 51.5(b). 59 Protocol I, art. 51.5(b). See Human Rights Watch, Needless Deaths in the Gulf War (New York: Human Rights Watch, 1991), Chapter One, section entitled “Civilian and ‘Dual Use’ Objects.” http://www.hrw.org/reports/1991/gulfwar/CHAP1.htm, and Chapter Four, http://www.hrw.org/reports/1991/gulfwar/CHAP4.htm. 60 See ICRC, Customary International Humanitarian Law, p. 554. 61 See ICRC, Customary International Humanitarian Law, rule 153. |