Questions and answers on hostilities between Israel and Hezbollah

A bridge destroyed in by Israeli strikes being repaired 16 July 2006. (Peter Speetjens/IRIN)

On July 12, Hezbollah launched an attack on Israeli positions on the Israeli side of the Lebanese border, killing three Israeli soldiers and capturing two. In response, Israel launched air and artillery attacks against targets throughout Lebanon, including Beirut’s international airport, bridges and highways, and Hezbollah offices. It also instituted an air, sea, and land blockade. According to media reports at the time of writing, Israeli attacks have killed at least 110 civilians and wounded more than 235 in Lebanon. Hezbollah forces have launched more than 800 rockets across the border into northern Israel, as far south as Tiberias (35km/22 miles south of the border), killing 12 civilians and injuring more than 100.

The following questions and answers set out some of the legal rules governing the various actions taken by Israel and Hezbollah to date in this recent conflict. Human Rights Watch sets out these rules before it has been able to conduct extensive on-the-ground investigation. The purpose is to provide analytic guidance for those who are examining the fighting as well as for the parties to the conflict and those with the capacity to influence them.

This Q & A addresses only the rules of international humanitarian law, known as jus in bello, which govern the way each party to the armed conflict must conduct itself in the course of the hostilities. It does not address whether Hezbollah was justified in attacking Israel, whether Israel was justified in attacking Lebanon for the conduct of Hezbollah, or other matters concerning the legitimacy of resorting to war. In accordance with its institutional mandate, Human Rights Watch maintains a position of strict neutrality on these issues of jus ad bellum because we find it the best way to promote our primary goal of encouraging both sides in the course of the conflict to respect international humanitarian law.

What international humanitarian law applies to the current conflict between Israel and Hezbollah?

The current armed conflict between Hezbollah and Israel is governed by international treaty as well as the rules of customary international humanitarian law. The treaty, specifically, common Article 3 of 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. The customary rules are based on established state practice, and bind all parties to an armed conflict, whether state actors or non-state armed groups.

International humanitarian law is designed mainly to protect civilians and other noncombatants from the hazards of armed conflict. Among the customary rules, parties that engage in hostilities must distinguish at all times between combatants and noncombatants. As discussed below, warring parties are required to 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.

Common Article 3 provides a number of fundamental protections for noncombatants, which include those who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds or illness. The article prohibits violence against these noncombatants - particularly murder, cruel treatment and torture - as well as outrages against their personal dignity and degrading or humiliating treatment. It also prohibits the taking of hostages and “the passing of sentences and the carrying out of executions” if basic judicial guarantees have not been observed.

Israel has asserted on several occasions since hostilities began on July 12 that it considers itself to be responding to the actions of the sovereign state of Lebanon, not just Hezbollah. If Israel considers itself to be at war with another sovereign state - that is, if it considers itself involved in an interstate conflict - then it must accept being bound by the full scope of the Geneva Conventions with their far more extensive rules, not simply those of common Article 3. To the extent that Lebanese forces were to join the hostilities, they, too, would be bound by the full Geneva Conventions, to which Lebanon is also a party. However, this Q & A limits itself to the more focused requirements of customary law and common Article 3, since they have greatest relevance to the conflict as it so far has been waged.

What is Hezbollah’s status in relation to the conflict?

Hezbollah is an organized political Islamist group based in Lebanon, with a military arm and a civilian arm, and is represented in the Lebanese parliament and government. As such a group, and as a party to the conflict with Israel, it is bound to conduct hostilities in compliance with customary international humanitarian law and common Article 3, which as stated above applies to conflicts that are not interstate but between a state and a non-state actor. As is explicitly stated in common Article 3, and made clear by the commentaries of the International Committee of the Red Cross, the application of the provisions of common Article 3, as well as customary international law, to Hezbollah does not affect its legal status.

Was Hezbollah’s capture of Israeli soldiers lawful?

The targeting and capture of enemy soldiers is allowed under international humanitarian law. However captured combatants must in all circumstances be treated humanely.

Hezbollah leader Hassan Nassrallah has stated that the captured soldiers will be used to negotiate the release of Palestinian, Lebanese and other Arab prisoners from Israel. The use of captives who are no longer involved in the conflict for this purpose constitutes hostage-taking. Hostage-taking as part of an armed conflict is strictly forbidden under international law, by both common Article 3 and customary international law, and is a war crime.

Which targets are Israel and Hezbollah entitled to attack under international humanitarian law?

Two fundamental tenets of international humanitarian law are those of “civilian immunity” and the principle of “distinction.” They impose a duty to distinguish at all times in the conduct of hostilities between combatants and civilians, and to target only the former. It is forbidden in any circumstance to direct attacks against civilians; indeed, as noted, to do so intentionally amounts to a war crime.

It is also generally forbidden to direct attacks against what are called “civilian objects,” such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes. Military objects that are legitimately subject to attack are those that make an “effective” contribution to military action and whose destruction, capture or neutralization offers a “definite military advantage.” Where there is doubt about the nature of an object, it must be presumed to be civilian.

The mere fact that an object has civilian uses does not necessarily render it immune from attack. It, too, can be targeted if it makes an “effective” contribution to the enemy’s military activities and its destruction, capture or neutralization offers a “definite military advantage” to the attacking side. However, such “dual use” objects might also be protected by the principle of proportionality, described below.

Even when a target is serving a military purpose, precautions must always be taken to protect civilians.

Is Hezbollah’s firing of rockets into Israel lawful under international humanitarian law?

As a party to the armed conflict, Hezbollah has a legal duty to protect the life, health and safety of civilians and other non-combatants. The targeting of military installations and other military objectives is permitted but Hezbollah must take all feasible precautions to avoid civilian harm and is prohibited from targeting civilians, launching indiscriminate attacks, or attacking military objects if the anticipated harm to civilians and other noncombatants will be disproportionate to the expected military advantage. Hezbollah’s commanders must choose the means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed. Deliberately attacking civilians is in all circumstances prohibited and a war crime.

While Human Rights Watch has not yet conducted a field examination to determine whether any of these attacks aimed to target a military object, preliminary information suggests that rockets fired by Hezbollah may be so inaccurate as to be incapable of being targeted, but are rather used to target a generalized area. As Human Rights Watch said in a 1997 report on Lebanon and Israel, “Katyushas are inaccurate weapons with an indiscriminate effect when fired into areas where civilians are concentrated. The use of such weapons in this manner is a blatant violation of international humanitarian law.” That is, their use in civilian areas violates the prohibition on indiscriminate attacks and would be a war crime. Customary international law prohibits such bombardment near or in any area containing a concentration of civilians, even if there are believed to be military objectives in the area.

Does international humanitarian law permit Israel to bomb the Beirut airport?

Airports in certain circumstances may be dual-use targets, in that they might be used both for military purposes such as military re-supply and to provide transport and provisions for the civilian population. However, as primarily a civilian object, the Beirut airport can become a military objective only if it is in fact providing an “effective” contribution to the enemy’s military activities and its destruction or neutralization provides “a definite military advantage.” Its status as a legitimate military objective would exist only for such time as it meets the foregoing criteria. International humanitarian law requires everything feasible to be done to verify that targets are in fact military objectives. Even if they are, the impact on civilians must be carefully weighed under the principle of proportionality against the military advantage served; all ways of minimizing the impact on civilians must be considered; and attacks should not be undertaken if the civilian harm outweighs the definite military advantage, or if a similar military advantage could be secured with less civilian harm.

According to an Israel Defense Forces (IDF) statement, the justification for targeting the Beirut airport is that it “constitutes a station for the transport of arms and infrastructure used by Hezbollah” and as such “represents a serious threat.” It has also been suggested that the airport could be used to transport the captured Israeli soldiers out of the area. However, these justifications are at best debatable. Israel has not claimed that the transport of arms was current or underway. It is thus unclear why Israel could not have waited to see whether such supply operations actually began and only then targeted either particular flights or, if necessary, the airport at that time. Instead, Israel has attacked Beirut airport on a number of occasions, without any publicly available evidence that it has been used for any recent transport of arms or troops. As for the possible use of the airport to transport the captured Israeli soldiers out of Lebanon, the military advantage of destroying the airport is negligible in comparison with the civilian cost, given the many alternative routes out of Lebanon along its long border with Syria. On the other hand, the civilian cost of targeting the airport is high, since it impedes the ability of civilians in Lebanon to escape the fighting or those who remain to receiv e provisions.

The real, unstated reason for Israel’s attack on the airport may be precisely to impose a cost on Lebanese civilians to encourage them to press their government to rein in Hezbollah. Leaving aside the question of whether the Lebanese government is militarily capable of reining in Hezbollah, it is illegal under international humanitarian law, as noted below, to use military force to squeeze the civilian population, to enhance its suffering, or to undermine its morale, regardless of the ultimate purpose. Under these circumstances, the attack on the Beirut airport does not appear to have been legitimate under the standards of international humanitarian law.

Is Israel entitled to target Lebanese infrastructure such as roads, bridges, and power stations?

Like airports, roads and bridges may be dual-use targets if actually used for military purposes. Even then, the same rule applies requiring the parties to the conflict to weigh carefully the impact on civilians against the military advantage served; they must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the civilian harm outweighs the definite military advantage. Human Rights Watch has not yet done the field research that would enable the organization to assess the legitimacy of Israeli attacks on Lebanese roads and bridges, but among the factors to be considered are whether the destruction of particular roads or bridges serve in fact to impede military transport in light of readily alternative routes - that is, whether the infrastructure attacked is making an “effective” contribution to Hezbollah’s military action and its destruction offers a “definite military advantage” - or whether its destruction seems aimed more at inconveniencing the civilian population and even preventing it from fleeing the fighting and seeking safety.

As for electrical facilities supplying the civilian population, they almost never are legitimate military targets. On the one hand, they might be considered dual-use targets, given that both civilians and armies use electricity. On the other hand, the harm to civilians is often enormous, affecting refrigeration, sanitation, hospitals, and other necessities of modern life; in urban society, electricity is arguably “indispensable to the survival of the civilian population,” meaning that it can be attacked only in extremely narrow circumstances. Meanwhile, the military effect of targeting electrical facilities serving the civilian population often can be achieved in more focused ways, such as by attacking military facilities themselves or the portion of an electrical grid directly serving a military facility. Although final judgment must await a more detailed on-the-ground investigation, Israel faces a very high burden to justify these attacks.

Is Israel entitled to use military force against the Lebanese population to encourage it to press its government to stop Hezbollah’s attacks and rescue Israel’s soldiers?

Lawful attacks are only those where the targets 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.” As noted, attacks directed at civilian morale do not meet this test since civilians, by definition, are not contributing to military action. Indeed, attacks on civilian morale are inimical to the very purpose of international humanitarian law of protecting civilians. Military attacks on civilian morale undoubtedly can exert pressure on a government to pursue a particular course of action, but under international humanitarian law that is an inappropriate use of military force. Indeed, the logic of attacking civilian morale opens the door to deliberately attacking civilians and civilian objects themselves - in short, to terrorism. In addition, international humanitarian law explicitly prohibits attacks of which the primary purpose is to intimidate or instill terror in the civilian population.

International humanitarian law would not prohibit attacks on Lebanese government military forces as a way of pressing the government to rein in Hezbollah, but in making that point, Human Rights Watch takes no position on whether the Lebanese government is capable of reining in Hezbollah or whether it would be an appropriate use of force under jus ad bellum standards to target the Lebanese government.

Is Israel entitled to bomb the Hezbollah leader’s house and office?

International law allows the targeting of military commanders in the course of armed conflict, provided that such attacks otherwise comply with the laws that protect civilians. Normally, political leaders, as civilians, would not be legitimate targets of attack. The only exception to this rule is if their role, as commander of troops, or their direct participation in military hostilities renders them effectively combatants. Civilians lose their protected status when they are engaged in hostilities.

According to the International Committee of the Red Cross, direct participation in hostilities means “acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces” and includes acts of defense. Thus, Hezbollah political leaders who are effectively commanding belligerent forces would be legitimate targets. This conclusion does not apply to all Hezbollah leaders and in particular to those who could not be said to hold such command responsibilities or to be directly participating in hostilities.

In principle, it is permitted to target the location where a combatant resides or works. However, as with any attack on an otherwise legitimate military target, the attacking force must refrain from attack if it would disproportionately harm the civilian population or be launched in a way that fails to discriminate between combatants and civilians.

Can Israel attack neighborhoods that house Hezbollah leaders or offices? And what are Hezbollah’s obligations regarding the use of civilian areas for military activities?

Where the targeting of a combatant takes place in an urban area, all parties must be aware of their obligations to protect the civilian population, as the bombing of urban areas significantly increases the risks to the civilian population. International humanitarian law obliges all belligerents to avoid harm to civilians or civilian objects.

The defending party - in the case of Beirut, Hezbollah - must take all necessary precautions to protect civilians against the dangers resulting from armed hostilities, and must never use the presence of civilians to shield themselves from attack. That requires positioning its military assets, troops, and commanders as much as possible outside of populated areas. The use of human shields is a war crime.

In calculating the legality of an attack on premises where a Hezbollah combatant is present, Israel must take the risk to civilians into account. It is not relieved from this obligation on the grounds that it considers Hezbollah responsible for having located legitimate military targets within or near populated areas or that Hezbollah may be using the civilian population as a shield. Even in situations of Hezbollah’s illegal location of military targets, or shielding, Israel must refrain from launching any attack that may be expected to cause excessive civilian loss in comparison to the concrete and direct military advantage anticipated. That is, a violation by Hezbollah in this regard does not justify Israeli forces ignoring the civilian consequences of a planned attack. The intentional launch of an attack in an area without regard to the civilian consequences or in the knowledge that the harm to civilians would be disproportionately high compared to any definite military benefit to be achieved would be a serious violation of international humanitarian law and a war crime.

In any event, the presence of a Hezbollah commander or military facility in a populated area never justifies attacking the area as such rather than the particular military target. It is a prohibited indiscriminate attack, and a war crime, to treat an entire area as a military target instead of attacking the particular military facilities or personnel within that area.

Can Israel attack Hezbollah radio and television stations?

Military attacks on broadcast facilities used for military communications are legitimate under international humanitarian law, but such attacks on civilian television or radio stations are prohibited if they are designed primarily to undermine civilian morale or to psychologically harass the civilian population. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective, that is, if they are used in a way that makes an “effective contribution to military action” and their destruction in the circumstances ruling at the time offers “a definite military advantage.” Specifically, Hezbollah-operated civilian broadcast facilities could become military targets if, for example, they are used to send military messages or otherwise concretely to advance Hezbollah’s armed campaign against Israel. However, civilian broadcasting facilities are not rendered legitimate military targets simply because they spout pro-Hezbollah or anti-Israel propaganda. For the same reason that it is unlawful to attack civilian morale, it is unlawful to attack facilities that merely shape civilian opinion; neither directly contributes to military operations. That Lebanese civilian opinion might influence how the Lebanese government responds to Hezbollah is not a sufficiently direct contribution to military action to render the media used to influence that opinion a legitimate military target. Rather, broadcasts should be met with competing broadcasts, propaganda with propaganda.

Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that Israeli military planners and commanders should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. Special precautions should be taken in relation to buildings located in urban areas. Advance warning of an attack must be given whenever possible.

The IDF have dropped leaflets in parts of Lebanon warning residents to evacuate - is this an appropriate precaution?

International humanitarian law requires that if there is any risk to civilians in an attack, an effective warning be given where “circumstances permit.” Leaflet drops are one way to provide that warning. However, in some cases the IDF are reported to have dropped leaflets giving residents only two hours to evacuate. It is unclear how long Israel waited after the expiration of this two-hour period to launch an attack in these areas. Whether this length of notice is effective is a matter for factual evaluation from the ground, which Human Rights Watch is not yet in a position to undertake. An assessment will have to take into account the difficulties in movement caused by Israel’s bombing of some transportation infrastructure such as bridges. In any event, the giving of such warnings does not absolve the attacking party, in this case Israel, from its obligations not to target civilian objects and not to carry out attacks that fail to discriminate between combatants and civilians, or that would have a disproportionate impact on civilians.

Examples of other precautions that parties should take to minimize civilian casualties include selecting a time of day for attack when the fewest civilians would be expected in the area; attacking a legitimate military target that is mobile when it is away from civilian areas; selecting weaponry and a method of attack that, if it misses its intended target, is least likely to harm nearby civilians; and refraining altogether from an attack even against a legitimate military target if the anticipated civilian harm will be disproportionately high - that is, “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

Is Israel’s blockade of Lebanon legitimate?

Israel has targeted the country’s only international airport, imposed a naval blockade, attacked ports, and bombed road links out of the country. Blockades as a tool of war are legitimate under international humanitarian law; however, their imposition is still subject to the principle of military necessity and proportionality.

First, the blockade must not have as its primary purpose to intimidate, harass or starve the civilian population. Such actions are proscribed by international humanitarian law, which prohibits armed forces from deliberately causing the civilian population to suffer hunger, particularly by depriving it of its sources of food or supplies.

Second, insofar as Israel attempts to justify the blockade on the grounds of restricting the re-supply of the Hezbollah military, that legitimate purpose must be weighed against the costs to the civilian population. Those costs can also shift over time, as shortages of necessities intensify. Even if a blockade were assumed lawful at the outset, it could become unlawful if mounting civilian costs became too high and outweighed the direct military advantage. In those circumstances - for example, if food or medical supplies ran low - Israel would be obliged to permit free passage of material that is essential for civilians and to protect humanitarian personnel delivering those supplies.

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