The 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 binds 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, including Israel and Lebanon. 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).24 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 a part of the Lebanese armed forces, demonstrated allegiance to such forces, or were under the direction or effective control of the government of Lebanon,25 there is a basis for finding that hostilities between Israel and Hezbollah are covered by the humanitarian law rules for a non-international (that is, non-intergovernmental) armed conflict.26 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 or Israeli 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 analyzing the conduct of hostilities between Israel and Hezbollah, the focus of this report.27
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 190728 and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I).29 Protocol I, which provides the most detailed and current codification of 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.30 Thus the legal analysis applied in this report frequently references norms enshrined in Protocol I, but as an important codification 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.31
International 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)32 and the 1907 Hague Regulations lay out the law that protects civilians during armed conflict.33 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.34
The two fundamental tenets of international humanitarian law are those of civilian immunity and distinction. 35 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.36 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.37 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.38 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.39
International humanitarian law prohibits indiscriminate attacks. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use means that cannot be directed at a specific military objective.40
One form of prohibited indiscriminate attack is 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 concentration of civilians and civilian objects, is regarded as an indiscriminate attack and prohibited. 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.41 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 (described below).
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.42 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 lack the ability to aim effectively at the intended target).43
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.44 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:
International humanitarian law does not prohibit fighting in urban areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Humanitarian law prohibits belligerents from using civilians to shield military objectives or military operations from attack. Shielding refers to intentionally using the presence of civilians to render certain points, areas, or military forces immune from military attack.52 Taking over a familys house and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of using human shields.
The prohibition on shielding is distinct from the requirement that all warring parties take constant care to protect civilians during the conduct of military operations by, among other things, taking all feasible precautions to avoid locating military objectives within or near densely populated areas.53 Such a determination will depend on the situation. Placing ammunition dumps in the center of a town during peacetime is a clear violation. Storing ammunition in civilian areas during fighting will be lawful or unlawful depending on a various factors, such as whether the warring faction took proactive steps to remove civilians from the vicinity, and whether other locations that did not endanger civilians presented themselves. Unlawfully placing forces, weapons, and ammunition within or near densely populated areas amounts to shielding only when there is a specific intent to use the civilians to deter an attack.
With respect to individual responsibility, serious violations of international humanitarian law, including deliberate, indiscriminate, and disproportionate attacks harming civilians, when committed with criminal intent are grave breaches (see Additional Protocol I) or, in common parlance, war crimes. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime. 54 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.55
24 Common Article 2 to the Geneva Conventions of 1949.
25 See Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States, Merits, Judgment, I.C.J. Reports 1986, p. 14, June 27, 1986 (for a state to have legal responsibility for the perpetration of acts in violation of international law by a non-state armed group, it would have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed) para. 115; see also, International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadic, case no. IT-94-1-A (judgment), July 15, 1999 (a conflict is international in nature where a state exercises overall control over subordinate armed forces or militias or paramilitary units engaged in armed conflict with another state. The control required for those powers to be considered de facto state organs goes beyond the mere financing and equipping and involves also participation in the planning and supervision of military operations. However, it is not required that specific orders or instructions relating to single military actions be issued).
26 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 to not be attributable to Lebanon). Marco Sassoli, Transnational Armed Groups and International Humanitarian Law, Program on Humanitarian Policy and Conflict Research, Winter 2006, p. 5; but see, Kenneth Anderson, Is the Israel-Hezbollah conflict an international armed conflict? July 14, 2006, accessed at http://kennethandersonlawofwar.blogspot.com/2006/07/is-israel-hezbollah-conflict.html (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.)
27 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.
28 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.
29 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. Israel is not party to Protocol I. 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. The Palestinian Authority has never made a declaration under article 96.
30 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.
31 One important difference relates to reprisals, which are permitted in very limited circumstances during international armed conflicts but not in non-international armed conflicts.
32 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. Israel is not party to Protocol I. 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.
33 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.
34 See generally ICRC, Customary International Humanitarian Law.
35 Protocol I, articles 48, 51(2), 52(2).
36 Additional Protocol I, article 48.
37 Additional Protocol I, article 52(1).
38 Additional Protocol I, Article 52(2).
39 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, rule 8, citing military manuals and official statements.
40 Protocol I, article 51(4).
41 See Additional Protocol I, article 51(5)(a).
42 Additional Protocol I, article 51(5)(b).
43 ICRC, Commentary on the Additional Protocols, p. 684.
44 Additional Protocol I, article 57.
45 Protocol I, article 52(3).
46 Protocol I, article 57(2).
47 Protocol I, article 57(2).
48 Protocol I, article 57(2).
49 Protocol I, article 57(3).
50 Protocol I, article 58(b).
51 Protocol I, article 58(a).
52 Protocol I, article 57(7).
53 Protocol I, Articles 57, 58.
54 See ICRC, Customary International Humanitarian Law, p. 554.
55 See ICRC, Customary International Humanitarian Law, rule 153.