Referring to the Hezbollah-Israel conflict, UN Commissioner for Human Rights Louise Arbour has said that indiscriminate shelling of cities is a war crime; presumably this is meant to apply to Hezbollah’s indiscriminate rocket and missile fire on Israeli cities. The Swiss International Red Cross, the “guardian” of the Geneva Conventions, has been explicit in saying that “Hezbollah fighters too are bound by the rules of international humanitarian law, and they must not target civilian areas.”
But Arbour also has said, presumably with regard to Israeli strikes on civilian areas which harbor military objectives–such as rockets or armed Hezbollah guerrillas in private homes, villages or urban areas–that “the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable,” and she has implied that such actions are war crimes for which military and political leaders may be held liable under international criminal law. But is it true that Israeli actions in Lebanon are “unjustifiable” under international law? Is Israel guilty of war crimes, as Arbour suggests?
Both Protocol I and Article 28 of the Geneva Convention (IV) make clear that “the deliberate intermingling of civilians and combatants, designed to create a situation in which any attack against combatants would necessarily entail an excessive number of casualties is a flagrant breach of the Law of International Armed Conflict,” according to international law scholar Yoram Dinstein (see his The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, pp. 129 – 130). In short, Hezbollah is in violation of the laws of war when it places missiles and rockets in villages and homes in order to shield them from Israeli attack.
Article 51(7) of Protocol I states: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations.” And the Geneva Convention (IV) holds that “The presence of a protected person may not be used to render certain points of areas immune from military operations.” (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, Laws of Armed Conflicts, 495, 511.) Moreover, the Rome Statute is clear that “utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations is recognized as a war crime by Article 8 (2) (b) (xxiii)”. (Dinstein, p. 130)
At the same time, Dinstein acknowledges that the principle of proportionality applies even in such cases when a belligerent has committed the war crime of using a civilian objective to shield its military forces or weapons from attack. “However, even if that is the case,” he notes, “the actual test of excessive injury to civilians must be relaxed. That is to say, the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that — if an attempt is made to shield military objectives with civilians — civilian casualties will be higher than usual.” (p. 131) Dinstein cites, inter alia, legal scholar L. Doswald-Beck who wrote regarding Israel’s original Lebanon War in the Journal of Peace Research: “The Israeli bombardment of Beirut in June and July of 1982 resulted in high civilian casualties, but not necessarily excessively so given the fact that the military targets were placed amongst the civilian population.”
The above considerations pertain to the norms deriving from treaty law (e.g., the Geneva Conventions). But there is another set of standards which are relevant to the question of proportionality which derive from another source of international law, known as customary international law. Together with treaties, customary law is one of the main sources of international humanitarian law (IHL), or the laws of war. Dinstein explains that “Customary international law is certainly more rigorous than the [Geneva] Protocol on this point. It has traditionally been perceived that, should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent [party] placing innocent civilians at risk. A belligerent…is not vested by the laws of international armed conflict with the power to block an otherwise legitimate attack against combatants (or military objectives) by deliberately placing civilians in harm’s way.” (Dinstein, ibid). In short, Hezbollah is legally (and morally) responsible for any Lebanese civilian casualties which result from Israeli bombardment of villages, homes or urban areas containing missiles, rockets or armed Hezbollah guerrilla forces—so long as Israel is aiming at these military targets, as it has.
Dinstein further notes that “An obvious breach of the principle of proportionality would be the destruction of a whole village–with hundreds of civilian casualties–in order to eliminate a single enemy sniper. In contrast, if — instead of a single enemy sniper — an artillery battery would operate from within the village, such destruction may be warranted” under the laws of war. (pp. 122-123)
Bridges and Civilian Casualties
Israel has bombed bridges in parts of Lebanon in order to prevent the movement of missiles into firing range of Israeli population centers, to obstruct the re-armament of Hezbollah, and to prevent Hezbollah from spiriting its captured soldiers to the Iranian Embassy, to Syria or Iran. Dinstein notes that under the international law of armed conflict, “most bridges qualify as military objectives by purpose, use or above all, location…As long as they are apt to have a perceptible role in the transport of military reinforcements and supplies, their destruction is almost self-explanatory as a measure playing havoc with enemy logistics.” (p. 92). Moreover, “given the significant military advantage that can generally be gained from the destruction of a strategically located bridge, relatively high civilian casualties would ordinarily be deemed reasonable collateral damage.” (p. 125)
Advance Warning Before Attacking Military Targets in Areas Affecting Civilians
Article 57(2) of Protocol I of the Geneva Convention, like the Hague Convention of 1907, “prescribes that effective advance warning must be given of attacks affecting the civilian population, ‘unless circumstances do not permit’…Warnings are designed ‘to allow, as far as possible, civilians to leave a locality before it is attacked.'” (Dinstein, pp. 127-8) Israel has repeatedly given advance warning to civilians in areas containing military objectives it plans to target: in south Beirut, before it attacked the Hezbollah stronghold, it gave at least 48 hours advance warning via airdropped leaflets, and it did the same with civilians in southern Lebanon, an area from which Hezbollah has been indiscriminately launching rockets at Israeli civilians within Israel, and where Hezbollah guerrillas have built fortifications and store arms.
The Assessment of Proportionality
Several conclusions follow from this review of the international law of armed conflict. First, the international laws of war permit considerable civilian casualties and harm to civilians of various kinds within the ambit of lawful combat, so long as a combatant fulfills its conditions. Second, the principle of proportionality prohibits an attack on a legitimate military target only if the collateral civilian casualties would be disproportionate in relation to the specific military gain anticipated from the attack. An attack against a legitimate military target is a war crime if the incidental loss of civilian life is “excessive in relation to the concrete and direct military advantage anticipated.” (Article 51 (5) (b) of Protocol I; Article 8 (2) (b) (iv) of the Rome Statute of the International Criminal Court). Dinstein notes that “Even extensive civilian casualties may be acceptable, if they are not excessive in light of the concrete and direct military advantage anticipated.” (p. 121) He further notes that “the Protocol refers to expected injury to civilians and to anticipated military advantage….what ultimately counts in appraising whether an attack which engenders incidental loss of civilian life or damage to civilian objects is ‘excessive,’ is not the actual outcome of the attack but the initial expectation and anticipation.”
Leonard Fein’s new essay on the Americans for Peace Now website “Disproportionality Now” fails to take into account many of the key considerations which the laws of war mandate for assessing whether the harm caused to civilians is proportional. He does, correctly, raise the question of what military advantages are likely to be gained by Israel’s campaign against Hezbollah, but for reasons I shall not elaborate upon in this essay, I think his assessment of the military and strategic gains which may be reasonably expected from Israel’s campaign is unduly pessimistic. That, however, is a largely empirical question which won’t be settled until we see the outcome of the campaign. But for reasons I’ve elaborated elsewhere, I believe it is not unreasonable to hold that Israel will achieve some significant military and strategic gains from this operation: These include:
1) pushing Hezbollah guerrillas back from its northern border, preventing further abductions and attacks on IDF forces within Israel (Israel is already engaged in ground operations in southern Lebanon to this end);
2) pushing Hezbollah’s thousands of Katyushas beyond 12 miles of the border so that northern Israel’s population centers are beyond their 12-mile range;
3) the imposition of an effective multinational force along with the Lebanese army in southern Lebanon to replace the IDF and Hezbollah, thereby implementing a key provision in UNSC resolutions 1559 and 1680, and an international monitoring regime in the Bekaa Valley and the Beirut airport to prevent Hezbollah’s rearmament, a proposal which has now won support from the US and several major powers;
4) reducing the number of missile launchers and longer-range missiles available to Hezbollah (it had only 62 Zelzal missiles threatening Tel Aviv and central Israel, and only 75 Fajr-3 and -5 missiles threatening Haifa, Israel’s two most strategically important cities other than Jerusalem, before firing some and losing others to Israeli strikes);
5) restoration of a modicum of the deterrence which Israel lost after it unilaterally withdrew from Lebanon and Gaza to the international border, and failed to retaliate to previous Hezbollah abductions. This will
a) create a disincentive against future attacks by Hezbollah and Iran, both of which harbor genocidal intent against Israel and its people, and
b) foster the confidence necessary among the Israeli public for further withdrawal of Israeli settlements (though not of the IDF at this point) from as much as 90% or more of the West Bank, with such evacuations coordinated or negotiated with the Palestinians; such steps will, as the Israeli government has said, safeguard Israel’s democratic and Jewish character, represent a giant step towards resolving the Palestinian-Israeli conflict, and promote the prospects for a future peace accord with its Palestinian neighbors;
6) dealing a blow to Iran’s efforts to gain leverage over the major powers in talks over its nuclear enrichment program, while thwarting its attempts to enhance its stature in the Arab world over the moderate Arab states, by using Hezbollah to threaten and bleed Israel;
7) blocking Iran’s efforts to sabotage Palestinian-Israeli accommodation by inflicting a strategic setback to Hezbollah through achievement of the above objectives.
All these are realistic potential outcomes of Israel’s operation, achievable to some degree.
Anticipated vs. Actual Outcome of Military Actions and Proportionality
Dinstein also notes that in making judgments as to the proportionality of an attack, “if an extensive air campaign is undertaken, it would be mistaken to focus on the outcome of an isolated sortie. It has been rightly emphasized that, pursuant to Article 8 (2) (b)(iv) of the Rome Statute, assessment of what is excessive is to be based on ‘overall’ military advantage anticipated. By introducing the word ‘overall’, the Statute ‘somewhat broadens the scope of military advantages which may be taken into account’: it permits looking at the larger operational picture and not merely at the particular point under attack.” (Dinstein, p. 123) It seems clear that the anticipated military and strategic gains, which include better protecting from rocket and missile attack more than 2 million Israelis–and with Tel Aviv and central Israel, virtually the country’s entire population of 7 million–must be factored into any judgments about the proportionality of Israel’s operations against Hezbollah.
Finally, from all this it follows that it is a categorical mistake to simply count the number of civilian Lebanese casualties, and then ask–is this too many in relation to whether Israel can “destroy Hezbollah”, as the appropriate way for evaluating the proportionality of Israel’s military actions in Lebanon. It is a mistake for at least two reasons: first, because it is arbitrary and unreasonable to treat “the destruction of Hezbollah,” and Israel’s inability to attain this objective, as the sole military advantage which should enter into the calculus; and second, because the absolute number of civilian casualties resulting from Israel’s actions, while not irrelevant to that calculus, is not the primary determinant of proportionality in international law. This is so because the moral and legal responsibility for many of those casualties under international law falls squarely on Hezbollah. Many more of those civilian casualties are also permitted as proportionate under the laws of war even though they sometimes represent a considerable number, in absolute terms.
As horrible as it is for us to see hundreds of thousands of civilians fleeing from the war zone–and we should support immediate humanitarian assistance to the 45,000 of these (and all others) who need it–Israel has committed no war crime by taking action against legitimate Hezbollah military targets which it has willfully placed within urban and other civilian areas. This is all the more so given that Israel has fully complied with the laws of war by giving sufficient warning to the Lebanese civilians affected by its operations against Hezbollah military targets. The law may seem to some to be insufficiently morally sensitive. But so long as we cannot–and must not, morally–embrace pacifism, we must accept the tragic fact that even the most just wars may result in many civilian casualties—foreseeably and unintentionally—yet justifiably, with the full and terrible weight of law and morality.
