The document sent by the Israeli Ministry of Foreign Affairs to Human Rights Watch on May 8, 2007, is a verbatim excerpt from a ministry document posted on its website on April 1, 2007 entitled "Preserving Humanitarian Principles While Combating Terrorism: Israel's Struggle with Hizbullah in the Lebanon War," available, as of August 14, 2007, at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Terrorism+from+Lebanon-+Hizbullah/
Israel's Response to Accusations of Targeting Civilian Sights in Lebanon During the 'Second Lebanon War'
Although aware of the serious threat posed by the Hizbullah build-up and entrenchment in south Lebanon in the years prior to its attack against Israel on the 12th of July, 2006, which initiated the recent conflict, Israel sought to exercise restraint and to use diplomatic means to check the Hizbullah activities directed against it. Israel called repeatedly, in the UN and elsewhere, for Hizbullah attacks to be halted and for the government of Lebanon to assume its responsibilities and duty to establish control over south Lebanon.
Even following the Hizbullah attack of July 12, Israel sought to avoid an escalation of the conflict. The Israeli government gave Syria and Hizbullah a 72 hour ultimatum to stop Hizbullahs activity along the Lebanon-Israel border and to release the two kidnapped IDF soldiers, and so avert the conflict. The ultimatum went unanswered and the missile attacks on Israel intensified.
Guiding principles underlying IDF conduct
In responding to the threat posed by Hizbullahs terrorist attacks, and notwithstanding the fact that Hizbullah made no effort to comply with the principles of humanitarian law, the IDF regarded itself as bound to comply with the established principles of the law of armed conflict. Indeed, IDF orders, doctrine and education make clear that soldiers are obligated to act in accordance with international law and custom, including the Geneva Conventions. For example, the Chief of Staffs Order No. 33.0133 obligates every IDF soldier to conduct him/herself in accordance with the Geneva Conventions. See also a recent IDF educational publication on the Law of Armed Conflict entitled, The Law of War on the Battlefield which also makes clear the obligation of IDF forces to abide by the laws and rules of international law.
In seeking to implement these principles of international humanitarian law, a number of key questions arise in relation to any operation under consideration, including: 1) Is the target itself a legitimate military objective? and 2) Even if the target is, in itself, legitimate, is there likely to be disproportionate injury and damage to the civilian population and civilian property?
Legitimate military objectives
The generally accepted definition of military objective is that set out in Article 52(2) Additional Protocol I of the Geneva Conventions, which provides:
Insofar as objects are concerned, military objectives are limited to those objects 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, offers a definite military advantage.
Regarding military targets, the IDFs Law of War on the Battlefield provides, A military target subject to attack is a target that by its nature, location, purpose or use effectively contributes to the military campaign of the other side, and its neutralization will offer a clear military advantage to the attacking side. It goes on to explain that there are certain objects that are normally immune from attack such as medical facilities and staff, religious sites and cultural assets, the basic needs of the civilian population (such as food products, agricultural areas and sanitation facilities, etc.), locations that would pose an environmental risk if they were attacked, and civil defense personnel.
It should be stressed that if a location is a legitimate military objective, it does not cease to be so because civilians are in the vicinity. Furthermore, Article 28 of the IVth Geneva Convention provides:
The presence of a protected person may not be used to render certain points or areas immune from military operations.
Clearly, the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who choose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders. As international law expert Professor Yoram Dinstein notes:
Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk.
However, it is the IDFs position that the callous disregard of those who hide behind civilians does not absolve the state seeking to respond to such attacks of the responsibility to avoid or at least minimize injury to civilians and their property in the course of its operations. In particular this raises the complex issue of proportionality.
A further legal requirement is that the potential harm to civilians and civilian objects expected in any attack must be proportionate to the military advantage anticipated.
Major General A.P.V. Rogers, a former Director of British Army Legal Services, explains the rationale behind this principle:
Although they are not military objectives, civilians and civilian objects are subject to the general dangers of War in the sense that attacks on military personnel and military objectives may cause incidental damage. It may not be possible to limit the radius of effect entirely to the objective to be attacked Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack.
While the principle is clear, in practice weighing the expected military advantage against possible collateral damage can be an extremely complex, especially in the heat of an armed conflict. In their report to the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, the Committee established to review NATO bombings in Yugoslavia highlighted the particular difficulties which arise when military objectives are located in densely populated areas:
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. It is suggested that the determination of relative values must be that of the reasonable military commander.
The test of proportionality to be applied in a case of armed conflict (jus in bellum) is broader that that applied under the principles of self-defense outside the context of actual warfare (jus ad bellum). But it should be noted that the policies applied in practice by the IDF conformed even with this stricter test of proportionality. In relation to the self-defense standard, it should be recalled that international law provides that the proportionality of a response to an attack is to be measured, not in regard to the specific attack suffered by a state, but in regard to what is necessary to remove the overall threat. As Rosalyn Higgins, currently President of the International Court of Justice, has written, proportionality:
cannot be in relation to any specific prior injury - it has to be in relation to the overall legitimate objective of ending the aggression.
Accordingly, the right of self-defense includes not only acts implemented to prevent the immediate threat, but also to prevent subsequent attacks. In Israels case this means that its response had to be measured not only in respect to the initial Hizbullah cross-border attack, or even the 4,000 missiles fired at Israels northern towns and villages, but also against the threat of the tens of thousands of missiles which Hizbullah had amassed and continued to receive from Iran and Syria.
From theory to practice - Israels operations in Lebanon
Israel has adopted the principles of international humanitarian law outlined above and the IDF has entrenched them in its orders, doctrine and education. With regard to the selection of targets, for example, the IDFs Law of War on the Battlefield not only emphasizes that a distinction must be made between military objectives and civilian objects but also that in cases where there is doubt as to whether a civilian object has turned into a military objective it must be assumed that it is not a military objective unless proven otherwise.
Similarly, in relation to the question of proportionality, the IDF position is clear:
Even when it is not possible to isolate the civilians from an assault and there is no other recourse but to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population, which is disproportionate to the expected military gain.
In practice, this requires that the IDF and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
The term military advantage refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.
The possibility of collateral injury to civilians must be weighed in light of these considerations. Hizbullahs deliberate placing of missile launchers and stockpiles of weapons in the heart of civilian centers, frequently inside and beneath populated apartment blocks, meant that this risk was tragically high.
The presence of civilians in the area, however, does not stop a military objective from being a legitimate target. This is the law, as noted above, and reflected in state practice. Thus, for example, the Australian Defense Force Manual states:
The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed.
Notwithstanding the above, it should be noted that even when civilians were in the vicinity of military objectives, Israel made significant efforts to avoid, and in any event to minimize, civilian casualties. Every operation was considered on an individual basis to ensure that it met the requirements of international law, including the test of proportionality. Frequently, this meant the rejection of proposed military operations when the likelihood of collateral damage to civilians and their property was considered too high. On other occasions, it meant that operations were conducted in such a way as to reduce the likelihood of incidental damage, in terms of the timing or operational aspects of the attack. Finally, whenever possible without jeopardizing the operation, Israel issued advance notice to the local residents through various media, including dropping leaflets, radio broadcasts and contacts with local leaders, to distance themselves from areas in which Hizbullah was operating and from places in which its weaponry was being stored.
Operations against infrastructure used to support terrorist activity
The guiding principle adopted by the IDF was to target only infrastructure that was making a significant contribution to the operational capabilities of the Hizbullah terrorists. This meant that, for the most part, Israeli attacks were limited to the transportation infrastructure. Most of the other infrastructure (medical, cultural, railroad, tunnels, ports, banking, manufacturing, farming, tourism, sewage, financial, electricity, drainage, water and the like) was left almost completely untouched.
All IDF operations in Lebanon were directed against legitimate military objectives, and specifically in relation to infrastructure, included the following:
Bridges and roads - The activity of terrorist groups in Lebanon was dependent on major transportation arteries through which weaponry and ammunition, as well as missile launchers and terrorist reinforcements, were transported. Damage to key routes was intended to prevent or obstruct the planning and perpetrating of attacks by the terrorists. It was also intended to prevent the kidnapped Israeli soldiers from being smuggled out of the country.
Under international law there is widespread recognition that lines of transportation which can serve military purposes are a legitimate military target. In its Commentary on the Additional Protocols to the Geneva Conventions, the International Committee of the Red Cross (ICRC) includes in its list of military objectives considered to be of generally recognized military importance:
Lines and means of communications (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance.
A useful practical test for gauging the military importance of lines of transportation is proposed in the US Air Force Pamphlet, which asks whether they make an effective contribution to an adversarys military action so that their capture, destruction or neutralization offers a definite military advantage in the circumstances ruling at the time.
Notwithstanding the operational justifications for targeting major roads in Lebanon, the IDF took pains to ensure that sufficient routes remained open to enable civilians to leave combat zones and to permit access for humanitarian supplies. Efforts were also made to ensure that damage to civilian vehicles was minimized.
Runways at Beirut International Airport - In the view of the IDF, rendering the runways unusable constituted one of the most important and appropriate methods of preventing reinforcements and supplies of weaponry and military materiel reaching the terrorist organizations. It was also a response to reports that the Hizbullah terrorists intended to fly the kidnapped Israelis out of Lebanon.
Airports are widely recognized to be legitimate military targets. The Canadian Law of Armed Conflict Manual, for example, notes that ports and airfields are generally accepted as being military objectives while the ICRC list of generally recognized military objectives includes: airfields, rocket launching ramps and naval base installations.
It should also be noted that, in its operation at Beirut Airport, the IDF was careful not to damage the central facilities of the airport, including the radar and control towers, allowing the airport to continue to control international flights over its airspace.
Al Manar TV station - Operating as the Hizbullah television station, Al Manar was used to relay messages to terrorists and to incite acts of terrorism. The ICRC list of accepted military objectives includes the installations of broadcasting and television stations. Similarly, the Committee established to review NATO bombings in Yugoslavia noted in relation to NATO attacks on radio and television stations in Belgrade: If the media is used to incite crimes then it is a legitimate target Insofar as the attack actually was aimed at disrupting the communications network it was legally acceptable.
Fuel reserves - Terrorist activity is dependent, inter alia, on a regular supply of fuel without which the terrorists cannot operate. For this reason a number of fuel depots which primarily served the terrorist operations were targeted. From intelligence Israel has obtained, it appears that this step had a significant effect on reducing the capability of the terrorist organizations.
The legitimacy of directing attacks on fuel and power installations has been widely noted. The Canadian Law of Armed Conflict Manual, for example, lists petroleum storage areas as generally accepted as being military objectives, while the ICRC list of military objectives also includes Installations providing energy mainly for national defense, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption.(29)
One of the claims that have been made against Israel concerns the oil spill that occurred off the shores of Lebanon during the war. Without making any comment regarding the factual validity of such claims, it should be emphasized that Israel ensured that sea and air access was allowed to any assistance offered with regard to the oil spill, even in the midst of a naval and aerial blockade which had to be imposed for operational and security reasons.
Beyond such specific instances of infrastructure serving the Hizbullah terrorist organization, Israel took care to try to avoid damage to civilian structures and services. The effects were noted by Washington Post journalist William M. Arkin who visited Lebanon during the conflict. Regarding the destruction in Beirut he wrote:
Only a very short drive from the neighborhood of southern Beirut though, you are back to bustling boulevards; a few neighborhoods over and there are luxury stores and five star hotels. Beyond the Hizbullah neighborhoods, the city is normal. Electricity flows just as it did before the fighting. The Lebanese sophisticates are glued to their cell phones. Even an international airport that was bombed is reopened. An accurate reading of what happened and what south Beirut means might produce a different picture. Israel has the means to impart greater destruction, but that does not mean intrinsically that it is more brutal. If Hizbullah had bigger rockets or more accurate ones, it would have done not only the same, but undoubtedly more.
Types of weaponry used
In the course of the conflict in Lebanon Israel used a range of weapons and ammunition in its efforts to confront the terrorist threat. All the weapons, and the manner in which they were used by the IDF, were in conformity with international humanitarian law. Among the types of weaponry used were Cluster Munitions (CBUs). Such weapons are not prohibited by international law - neither under customary international law, nor under the Conventional Weapons Convention, to which Israel is party. They are possessed by several dozen states and have been used by many of them.
Clearly, as in the case of all arms, the use of cluster munitions must be in accordance with the principles of the law of armed conflict. In the course of the conflict, CBUs were used as part of Israels response to the unique threat posed by Hizbullah. In particular, the nature of the campaign, the massive scope of missile attacks - including CBU attacks - against Israeli population centers, and the fact that missile launchers were deliberately and expertly camouflaged in built-up areas and areas with dense vegetation, were all factors in the decision to use this type of weapon. The decision to use CBUs to neutralize the missile attacks was only made after other options had been examined and found to be less effective in ensuring maximal coverage of the missile-launching areas. In practice, the operational effectiveness of CBUs was clearly shown, resulting in a disruption of missile attacks against Israeli population centers.
Despite the urgent need to prevent the continuous firing of missiles into Israel by Hizbullah, Israel recognized the need to take measures to avoid, and in any event to minimize, civilian casualties. Among the measures taken by Israel was the printing of millions of fliers, written in Arabic, which were dispersed over populated areas, explaining that due to Hizbullah activity, residents should evacuate these areas in order to avoid being hurt. These messages were also broadcast through PA systems and through radio broadcasts on the Al-Mashrek station, broadcasting out of Israel in Arabic. Additionally, Israeli officials contacted the mayors and local leaders of a number of villages in order to ensure the evacuation of residents.
All CBU fire was directed at legitimate military objectives and for humanitarian reasons most of the CBU fire was directed at open areas, keeping a safe distance from built up areas. In those cases where CBU fire was directed at military objectives which were in the vicinity of built up areas, it was always toward particular locations from which missiles were being launched against Israel, and after significant measures were taken to warn civilians to leave the area. Moreover, following the cessation of active hostilities, Israel handed over to UNIFIL maps of the areas suspected of containing unexploded ordnance, including from CBUs, in order to facilitate the ordnance clearing process.
In the course of the conflict, numerous acute humanitarian issues arose. Despite the ongoing conflict, Israel sought to find practical and effective ways to address these issues and to alleviate suffering.
These efforts included steps taken to facilitate access of humanitarian assistance to civilians within Lebanon. An operations room was set up in northern Tel Aviv to coordinate international efforts to provide aid to Lebanon. This facility was headed by senior IDF staff and manned by representatives of the Israeli Foreign Ministry, the United Nations and the International Committee of the Red Cross.
At the same time Israel established a humanitarian corridor to enable shipments of aid to reach Lebanon despite the ongoing hostilities. A sea-route to Lebanon was established through the port in Beirut, and a land route was designated from Beirut northward along the coast to the Syrian-Lebanese border. Throughout the hostilities, Israel coordinated humanitarian issues with the international community, even expanding the corridor to include other points of entry, and establishing a special humanitarian headquarters to direct the coordination efforts. In addition, Israel made arrangements to permit the landing of aircraft at Beirut International Airport to unload humanitarian goods for residents of southern Lebanon.
Another issue of humanitarian concern was the evacuation of foreign nationals from Lebanon. From the very first day of the war, the IDF helped coordinate the evacuation of at least 70,000 foreign nationals from Lebanon. To the best of our knowledge, this effort was accomplished without any loss of life. A total of 213 passenger ships, 123 land convoys and 196 helicopters were allowed to dock in or travel through Lebanon to evacuate the expatriates and tourists. The convoys were able to travel on approved routes, which were coordinated with IDF forces.
Israeli hospitals also offered free medical care to any Lebanese person who was wounded in the war. In the words of Professor Zev Rothstein, Director-General of the Sheba Medical Center at Tel Hashomer:
We are not to blame for this war. We dont ask who is to blame. We have an open Jewish heart. Our aim is to save lives and reduce misery. We dont hate like the terrorists .We have housing for Lebanese families and food at no cost .We will take all who need us, including adults .all the costs are paid by donors if a child were brought here, we would not ask whether his father is a terrorist.
This offer was broadcast via a hospital representative in Cyprus due to the fact that many Lebanese fled there, and was also broadcast on Arabic radio stations in the region.
Israels military operations in Lebanon took place in the context of a clear asymmetry with regard to the implementation of principles of international humanitarian law: Hizbullah, in clear violation of these principles, deliberately targeted Israeli civilians, while attempting to use the cover of civilians and civilian structures in order to stockpile its weapons, hide its fighters and fire missiles into Israel. Israel, on the other hand, held itself bound to apply the principles of humanitarian law, even while facing an opponent who deliberately flouted them.
In doing so, Israel took pains to ensure that its operations were directed against legitimate military targets and that in conducting its operations incidental damage to civilians was kept to a minimum, both by ruling out attacks which would cause disproportionate damage and by giving advance notice wherever possible. A survey of international practice suggests that the steps taken by Israel to address humanitarian considerations corresponded to, and often were more stringent than, those taken by many western democracies confronting similar or lesser threats.
The suffering of civilians was a tragic reality on both sides of the conflict. Israel made strenuous efforts to reduce this toll, both by protecting Israeli civilians and by seeking to minimize civilian suffering on the Lebanese side. Following the conflict, Israel has also undertaken numerous investigations and analyses with a view to learning lessons from the conflict and to enabling improvements to be made in the future. Israels efforts in this regard should not, however, diminish the ultimate responsibility of those who callously and deliberately used the Lebanese civilian population as a shield, for the suffering that inevitably resulted from their actions.