There is much that we still don’t know about the attacks that Israel has conducted against Hezbollah in Lebanon by detonating hundreds of pagers and walkie-talkies rigged with explosives. This type of attack is genuinely unprecedented – I can’t recall any sufficiently close analogue, but maybe others can. This novelty poses some difficulty in understanding how long-established rules of IHL, especially those on distinction and proportionality, but also precautions, would apply to these attacks. There are many other IHL questions raised, especially whether the pagers and the walkie-talkies constituted booby traps or otherwise violated rules of IHL regulating specific weapons (see this post by Bill Boothby on Articles of War and this post by Brian Finucane outlining many different IHL questions on Just Security).
In this post, I will focus on one specific question – whether the attacks were indiscriminate. Discrimination between military objectives (whether persons or objects) on the one hand, and civilians and civilian objects on the other hand, is part of the bedrock IHL principle of distinction. Public criticisms of the Israeli attacks seem to have focused mainly on the possible violation of this principle. For example, the UN High Commissioner for Human Rights, Volker Turk, said the following:
Simultaneous targeting of thousands of individuals, whether civilians or members of armed groups, without knowledge as to who was in possession of the targeted devices, their location and their surroundings at the time of the attack, violates international human rights law and, to the extent applicable, international humanitarian law.
A day later, a group of UN special mandate holders led by Prof. Ben Saul, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, also issued a press release, in which they criticised the Israeli operation as follows (while echoing some of the High Commissioner’s language):
“These attacks violate the human right to life, absent any indication that the victims posed an imminent lethal threat to anyone else at the time,” the experts said. “Such attacks require prompt, independent investigation to establish the truth and enable accountability for the crime of murder. …
The pagers and radios were reportedly distributed mainly among people allegedly associated with the Hezbollah movement, which includes civilian and military personnel and is involved in an armed conflict with Israel along the border.
“To the extent that international humanitarian law applies, at the time of the attacks there was no way of knowing who possessed each device and who was nearby,” the experts said. “Simultaneous attacks by thousands of devices would inevitably violate humanitarian law, by failing to verify each target, and distinguish between protected civilians and those who could potentially be attacked for taking a direct part in hostilities.
“Such attacks could constitute war crimes of murder, attacking civilians, and launching indiscriminate attacks, in addition to violating the right to life,” the experts said.
Now, I’m very much a proponent of applying human rights law during armed conflict. But I have to say that I find the High Commissioner’s and the mandate holders’ conclusion that there was a violation of the right to life here to be far too categorical. This is especially the case with the notion that only persons who posed an imminent lethal threat to others could be lawfully targeted. While that is largely true in peacetime, this is simply not the correct legal position in armed conflict. Human rights law can accommodate status-based targeting under IHL, which would, in general, not amount to an arbitrary deprivation of life. It is clear that, at a minimum, there’s been an intense non-international armed conflict between Israel and Hezbollah for many months now – this is not some kind of liminal situation in which even IHL-compliant killing could be unlawful under IHRL. Put differently, it is IHL that should be the primary frame of reference here, and not human rights – the ‘to the extent IHL applies’ language seems to me to be misguided. The targeted person’s right to life would have been violated to the extent that IHL rules on targeting were violated.
So, the real issue is whether the use of the exploding pagers and walkie-talkies was IHL-compliant. The core question in that regard is whether the attacks complied with the principle of distinction. My sense is that the answer to this question is that they probably didn’t, i.e. that they were in fact indiscriminate. But this question is not as obvious as the statements above make it appear.
First, it is important to dispense with the possible argument that it was not the Hezbollah members themselves, but the communication devices that they carried, that were made the object of attack. In other words, Israel might argue that disrupting the enemy’s communications is clearly a lawful military objective, and that this is what the operation was doing. But this is simply counterfactual. If Israel really wanted to disrupt Hezbollah’s communications, it would have tampered with the devices so that they would short-circuit or otherwise shut down, which it could have done far more easily than by implanting them with explosives. The only plausible explanation for rigging the devices with explosives was that they were sufficient to kill or injure the persons using them. In other words, it was the people holding the devices who were made the object of attack. This much is absolutely clear.
Second, and this is probably the most important legal point, it is not remotely tenable to argue that any member of Hezbollah is, simply by virtue of his or her membership in that organization, a lawful target under IHL. Status-based targeting in NIACs is a somewhat more complicated affair than in IACs (consider e.g. controversies about the ICRC’s ‘continuous combat function’ test, and so on). But, even so, it is clear that a group like Hezbollah, with many thousands of members performing many different functions, political, religious, and social, as well as military, cannot be equated to an armed force as such. In other words, status-based targeting of Hezbollah members must ultimately depend on what these individuals do – the same is true of Hamas, or the Taliban, or even ISIS back when it administered large parts of Iraqi and Syrian territory. It is entirely possible to argue that all members of Hezbollah’s military wing are targetable on the basis of their status. But members of Hezbollah who do not belong to the organization’s military wing are civilians, and can only be targeted if they directly participate in hostilities. (For more, see this older post by Mike Schmitt discussing what he calls ‘mixed groups.’) Hezbollah members can be teachers, police officers, clerics, medics, politicians – even if they may also be terrorists under some definition of that term. In the eyes of IHL, they are civilians if they do not belong to the group’s military wing (or, if one takes the slightly narrower ICRC view, perform a CCF).
Third, before applying IHL rules on targeting – whose scope is confined to ‘attacks’ – we must have a clear sense of how exactly to define the attacks on the facts of this very peculiar case. This, in turn, depends on some technical features of the operation that remain unclear at this time. The key question is this: after the pagers and walkie-talkies were distributed to Hezbollah members, did Israel have the capability to trigger only some of the devices, on an individualized basis, or did it have to trigger them all at once? In other words, was this an all-or-nothing operation, in which the triggering signal had to propagate to all of the devices at once or sequentially, or could Israel instead choose which devices to blow up? If the devices could be triggered only all at once, we are talking about one single attack affecting thousands of individuals (or two attacks, if we separate out the walkie-talkies the day after). If, by contrast, the devices could be triggered selectively, then we are talking about a series of separate attacks, each of which individually had to comply with distinction and proportionality.
As things stand, it is unclear which of these possibilities is true – we don’t know just yet. The most important piece of evidence here would be whether, in addition to the devices that detonated, there is also a number of devices rigged with explosives that were not detonated, presumably because Israeli agents conducting the operation thought that the individual concerned was not a legitimate target. Or, to put this differently – if there are no or very few unexploded devices currently in Lebanon, this would be a strong indication that Israel blew them up all at once and had no capability to select the targets. If, by contrast, there is a substantial number of such unexploded devices, this would indicate that Israel did at least some kind of individualized targeting. Again, we just don’t know yet which of these options is true.
Fourth, on the all-at-once hypothesis, the two attacks could comply with distinction only if Israeli officials believed, with reasonable certainty, that the overwhelming majority of the rigged devices ended up in the hands of the members of Hezbollah’s military wing, who could lawfully be subjected to status-based targeting, or in the hands of civilians directly participating in hostilities. Thus, if Israeli officials believed that something like 90% of all devices would be in the hands of Hezbollah fighters, triggering the devices could, in theory, comply with distinction. This would, in turn, depend on what intelligence Israel had on whom Hezbollah was giving the devices to – but that intelligence would have to be at a high level of reliability and certainty, as otherwise there would be substantial doubt as to an individual’s status.
Fifth, on the all-at-once hypothesis there would be a single proportionality analysis, which would include two sets of civilians – those who were unfortunately themselves in the possession of the devices that would detonate, and bystanders who might be affected by the blast even from those devices whose user was a Hezbollah fighter. There would be a higher level of certainty that the first category of civilians would be seriously harmed, and a lower likelihood of harm to bystanders because of the limited size of the explosive package.
Sixth, on the selective detonation hypothesis, each detonation would be its own attack, with its own independent distinction and proportionality analysis. The key question here would be what indicia of status Israel had for each individual target, beyond them simply being in possession of one of the communication devices. That is, unless Israel knew with reasonable certainty that Hezbollah was only distributing the devices to members of its military wing, the possession of such a device could not, on its own, provide sufficient basis for status-based targeting.
Again, I have no idea whether Israel had the capability to detonate the devices selectively. If it did, however, compliance with distinction would require some kind of individualized assessment – theoretically, Israel had months to do such an assessment, but somehow I am skeptical that Israel knew the identities of most individuals who were given the devices (which were apparently being given out to Hezbollah members even mere hours before the blasts). And it is almost impossible for Israel to have conducted any kind of individualized proportionality assessment, since all of the devices were detonated at the same time, even when some targets were very close to civilians. I suppose Israel would again rely on the limited size of the explosive package to argue that the attacks were proportionate, because only a few civilians would be seriously injured while the military advantage gained from harming many Hezbollah fighters would outweigh harm to civilians.
There are two key pieces of information we would need that would enable a more reliable conclusion. First, it would be crucial to know how many individuals who were in possession of the rigged devices and were thus directly attacked were members of Hezbollah’s military wing, and how many others worked for other parts of the organization. We know from media reports that individuals were harmed who did not appear to work for Hezbollah’s military wing, e.g. they were medics in hospitals. But we don’t yet know the ratio of fighters to civilians among those who were harmed. This is important for understanding whether the operation complied with distinction. Second, it would be crucial to know how many civilian bystanders were harmed, and to what extent, from an exploding device in someone else’s possession. This is important for understanding whether the operation complied with proportionality.
On both points, the relevant legal question is what Israeli operators intended and anticipated, rather than what actually happened when the devices detonated. But what actually happened is decent evidence – not necessarily conclusive evidence, but evidence nonetheless – for what the operators knew or intended, especially in a situation in which Israel doesn’t even acknowledge that it authored the attack, let alone provide any of the relevant information in its possession.
In sum, from what we know today these attacks were most likely indiscriminate, that is, they failed to distinguish between Hezbollah fighters and civilians. This is, to my mind, a more important question than IHL proportionality. If Israel detonated the devices on the basis that all Hezbollah members are targetable, this would clearly be an indiscriminate attack. If, by contrast, Israel targeted only members of Hezbollah’s military wing, the attacks could potentially comply with distinction. But Israel would either have to have had reliable intelligence that virtually all individuals who had these devices were members of Hezbollah’s military wing, or would have had to do some kind of individualized targeting analysis for each person affected. My sense of this, as things stand, is that both options are unlikely – but we can’t know for certain until more information comes to light.
Were the Israeli Pager and Walkie-Talkie Attacks on Hezbollah Indiscriminate?
Written by Marko MilanovicThere is much that we still don’t know about the attacks that Israel has conducted against Hezbollah in Lebanon by detonating hundreds of pagers and walkie-talkies rigged with explosives. This type of attack is genuinely unprecedented – I can’t recall any sufficiently close analogue, but maybe others can. This novelty poses some difficulty in understanding how long-established rules of IHL, especially those on distinction and proportionality, but also precautions, would apply to these attacks. There are many other IHL questions raised, especially whether the pagers and the walkie-talkies constituted booby traps or otherwise violated rules of IHL regulating specific weapons (see this post by Bill Boothby on Articles of War and this post by Brian Finucane outlining many different IHL questions on Just Security).
In this post, I will focus on one specific question – whether the attacks were indiscriminate. Discrimination between military objectives (whether persons or objects) on the one hand, and civilians and civilian objects on the other hand, is part of the bedrock IHL principle of distinction. Public criticisms of the Israeli attacks seem to have focused mainly on the possible violation of this principle. For example, the UN High Commissioner for Human Rights, Volker Turk, said the following:
A day later, a group of UN special mandate holders led by Prof. Ben Saul, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, also issued a press release, in which they criticised the Israeli operation as follows (while echoing some of the High Commissioner’s language):
Now, I’m very much a proponent of applying human rights law during armed conflict. But I have to say that I find the High Commissioner’s and the mandate holders’ conclusion that there was a violation of the right to life here to be far too categorical. This is especially the case with the notion that only persons who posed an imminent lethal threat to others could be lawfully targeted. While that is largely true in peacetime, this is simply not the correct legal position in armed conflict. Human rights law can accommodate status-based targeting under IHL, which would, in general, not amount to an arbitrary deprivation of life. It is clear that, at a minimum, there’s been an intense non-international armed conflict between Israel and Hezbollah for many months now – this is not some kind of liminal situation in which even IHL-compliant killing could be unlawful under IHRL. Put differently, it is IHL that should be the primary frame of reference here, and not human rights – the ‘to the extent IHL applies’ language seems to me to be misguided. The targeted person’s right to life would have been violated to the extent that IHL rules on targeting were violated.
So, the real issue is whether the use of the exploding pagers and walkie-talkies was IHL-compliant. The core question in that regard is whether the attacks complied with the principle of distinction. My sense is that the answer to this question is that they probably didn’t, i.e. that they were in fact indiscriminate. But this question is not as obvious as the statements above make it appear.
First, it is important to dispense with the possible argument that it was not the Hezbollah members themselves, but the communication devices that they carried, that were made the object of attack. In other words, Israel might argue that disrupting the enemy’s communications is clearly a lawful military objective, and that this is what the operation was doing. But this is simply counterfactual. If Israel really wanted to disrupt Hezbollah’s communications, it would have tampered with the devices so that they would short-circuit or otherwise shut down, which it could have done far more easily than by implanting them with explosives. The only plausible explanation for rigging the devices with explosives was that they were sufficient to kill or injure the persons using them. In other words, it was the people holding the devices who were made the object of attack. This much is absolutely clear.
Second, and this is probably the most important legal point, it is not remotely tenable to argue that any member of Hezbollah is, simply by virtue of his or her membership in that organization, a lawful target under IHL. Status-based targeting in NIACs is a somewhat more complicated affair than in IACs (consider e.g. controversies about the ICRC’s ‘continuous combat function’ test, and so on). But, even so, it is clear that a group like Hezbollah, with many thousands of members performing many different functions, political, religious, and social, as well as military, cannot be equated to an armed force as such. In other words, status-based targeting of Hezbollah members must ultimately depend on what these individuals do – the same is true of Hamas, or the Taliban, or even ISIS back when it administered large parts of Iraqi and Syrian territory. It is entirely possible to argue that all members of Hezbollah’s military wing are targetable on the basis of their status. But members of Hezbollah who do not belong to the organization’s military wing are civilians, and can only be targeted if they directly participate in hostilities. (For more, see this older post by Mike Schmitt discussing what he calls ‘mixed groups.’) Hezbollah members can be teachers, police officers, clerics, medics, politicians – even if they may also be terrorists under some definition of that term. In the eyes of IHL, they are civilians if they do not belong to the group’s military wing (or, if one takes the slightly narrower ICRC view, perform a CCF).
Third, before applying IHL rules on targeting – whose scope is confined to ‘attacks’ – we must have a clear sense of how exactly to define the attacks on the facts of this very peculiar case. This, in turn, depends on some technical features of the operation that remain unclear at this time. The key question is this: after the pagers and walkie-talkies were distributed to Hezbollah members, did Israel have the capability to trigger only some of the devices, on an individualized basis, or did it have to trigger them all at once? In other words, was this an all-or-nothing operation, in which the triggering signal had to propagate to all of the devices at once or sequentially, or could Israel instead choose which devices to blow up? If the devices could be triggered only all at once, we are talking about one single attack affecting thousands of individuals (or two attacks, if we separate out the walkie-talkies the day after). If, by contrast, the devices could be triggered selectively, then we are talking about a series of separate attacks, each of which individually had to comply with distinction and proportionality.
As things stand, it is unclear which of these possibilities is true – we don’t know just yet. The most important piece of evidence here would be whether, in addition to the devices that detonated, there is also a number of devices rigged with explosives that were not detonated, presumably because Israeli agents conducting the operation thought that the individual concerned was not a legitimate target. Or, to put this differently – if there are no or very few unexploded devices currently in Lebanon, this would be a strong indication that Israel blew them up all at once and had no capability to select the targets. If, by contrast, there is a substantial number of such unexploded devices, this would indicate that Israel did at least some kind of individualized targeting. Again, we just don’t know yet which of these options is true.
Fourth, on the all-at-once hypothesis, the two attacks could comply with distinction only if Israeli officials believed, with reasonable certainty, that the overwhelming majority of the rigged devices ended up in the hands of the members of Hezbollah’s military wing, who could lawfully be subjected to status-based targeting, or in the hands of civilians directly participating in hostilities. Thus, if Israeli officials believed that something like 90% of all devices would be in the hands of Hezbollah fighters, triggering the devices could, in theory, comply with distinction. This would, in turn, depend on what intelligence Israel had on whom Hezbollah was giving the devices to – but that intelligence would have to be at a high level of reliability and certainty, as otherwise there would be substantial doubt as to an individual’s status.
Fifth, on the all-at-once hypothesis there would be a single proportionality analysis, which would include two sets of civilians – those who were unfortunately themselves in the possession of the devices that would detonate, and bystanders who might be affected by the blast even from those devices whose user was a Hezbollah fighter. There would be a higher level of certainty that the first category of civilians would be seriously harmed, and a lower likelihood of harm to bystanders because of the limited size of the explosive package.
Sixth, on the selective detonation hypothesis, each detonation would be its own attack, with its own independent distinction and proportionality analysis. The key question here would be what indicia of status Israel had for each individual target, beyond them simply being in possession of one of the communication devices. That is, unless Israel knew with reasonable certainty that Hezbollah was only distributing the devices to members of its military wing, the possession of such a device could not, on its own, provide sufficient basis for status-based targeting.
Again, I have no idea whether Israel had the capability to detonate the devices selectively. If it did, however, compliance with distinction would require some kind of individualized assessment – theoretically, Israel had months to do such an assessment, but somehow I am skeptical that Israel knew the identities of most individuals who were given the devices (which were apparently being given out to Hezbollah members even mere hours before the blasts). And it is almost impossible for Israel to have conducted any kind of individualized proportionality assessment, since all of the devices were detonated at the same time, even when some targets were very close to civilians. I suppose Israel would again rely on the limited size of the explosive package to argue that the attacks were proportionate, because only a few civilians would be seriously injured while the military advantage gained from harming many Hezbollah fighters would outweigh harm to civilians.
There are two key pieces of information we would need that would enable a more reliable conclusion. First, it would be crucial to know how many individuals who were in possession of the rigged devices and were thus directly attacked were members of Hezbollah’s military wing, and how many others worked for other parts of the organization. We know from media reports that individuals were harmed who did not appear to work for Hezbollah’s military wing, e.g. they were medics in hospitals. But we don’t yet know the ratio of fighters to civilians among those who were harmed. This is important for understanding whether the operation complied with distinction. Second, it would be crucial to know how many civilian bystanders were harmed, and to what extent, from an exploding device in someone else’s possession. This is important for understanding whether the operation complied with proportionality.
On both points, the relevant legal question is what Israeli operators intended and anticipated, rather than what actually happened when the devices detonated. But what actually happened is decent evidence – not necessarily conclusive evidence, but evidence nonetheless – for what the operators knew or intended, especially in a situation in which Israel doesn’t even acknowledge that it authored the attack, let alone provide any of the relevant information in its possession.
In sum, from what we know today these attacks were most likely indiscriminate, that is, they failed to distinguish between Hezbollah fighters and civilians. This is, to my mind, a more important question than IHL proportionality. If Israel detonated the devices on the basis that all Hezbollah members are targetable, this would clearly be an indiscriminate attack. If, by contrast, Israel targeted only members of Hezbollah’s military wing, the attacks could potentially comply with distinction. But Israel would either have to have had reliable intelligence that virtually all individuals who had these devices were members of Hezbollah’s military wing, or would have had to do some kind of individualized targeting analysis for each person affected. My sense of this, as things stand, is that both options are unlikely – but we can’t know for certain until more information comes to light.
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Luigi Daniele says
September 20, 2024
Dear Marko,
Thanks for this analysis.
For the all-at-once hypothesis, you suggest that "[t]here would be a higher level of certainty that the first category of civilians would be seriously harmed, and a lower likelihood of harm to bystanders because of the limited size of the explosive package." Maybe some doubts on this part. I have heard military analysts suggesting the likelihood of 10 to 20 gram of military grade explosives in the devices.. I would say this is likely lethal for the carriers (I don't think the relevant agencies would have bothered to plant explosives to just injure, rather than killing the targets). More importantly, we know as a matter of fact from the images that devices were detonated in family houses, barber shops, cars in transit, crowded street markets... I would say that even if the explosives were of limited size, the level of injury to civilians, given the locations of the detonations, could have only been foreseen as extremely high. In terms of mens rea, seems to me a case of 'virtual certainty' of extremely high injuring of civilians. So the legal question coming to my mind is whether the certainty of maiming a group (or large group) of civilians allows us (or judges in a war crime trial) to infer that the civilian bystanders were also targets, in the mind of the attackers (via dolus directus in the second degree, or indirect intent). I am inclined to think so. I guess this would reinforce the qualification of the attack as indiscriminate but curious to know your thoughts
David Dancer says
September 20, 2024
Marko,
I agree on reasonable certainty. But on the assumption that this is a single global attack, what is the basis for requiring that the “overwhelming majority of the rigged devices [must have] ended up in the hands of the members of Hezbollah’s military wing”? Surely the attackers would only need reasonable confidence that the global number of civilians killed would not be excessive to the global fighters targeted. That’s the logic of a global assessment (although I’m not sure it is the right approach here).
Dave
Marko Milanovic says
September 20, 2024
Luigi,
My understanding is that the pagers had about 3 grams of explosive, while the walkie-talkies had significantly more https://www.reuters.com/world/middle-east/hezbollah-handed-out-pagers-hours-before-blasts-even-after-checks-2024-09-20/
But it seems clear that the pagers were NOT lethal in the great majority of cases even to their users, let alone to bystanders. The WTs were significantly more dangerous. In any case as I explained we need to know more about the facts, especially the number of civilians injured or killed. On your dolus indirectus point, that approach doesn't really work in the targeting context. There will be many situations in which a military will know with certainty that they will hit a civilian or civilian object incidentally. That cannot mean that the attack can never proceed - rather, it is the propotionality analysis that would kick in.
Dave, the analysis you suggest would entail that the indiscriminate nature of the attack is ENTIRELY a function of proportionality. But that can't be right. The issue I'm trying to get at is distinction, i.e. whether the attack is directed against a specific military objective. I agree that the two issues are somewhat mixed up, e.g. also in how the concepts are defined in Art. 51 AP I.
David Dancer says
September 20, 2024
Marko,
Many thanks for the reply. Sorry to harp on but to be fair it was you who introduced the possibility of this being conceived of as a single global attack. If that’s the case, I’m simply saying you wouldn’t just look at the civilian harm globally. You would presumably also conduct distinction vis a vis the single global attack. Is the single global attack - not each and every pager attack - directed at legitimate targets. I’m guessing that was the case if militants were genuinely targeted. Proportionality and precautions would obviously impose further constraints but I still don’t know where you get the requirement for the “overwhelming majority” of devices to be held by militants if that global approach is being taken. Are you saying “specific military advantage” doesn’t rule out a global approach but would require each element of a single global attack to be directed?
Dave
Dor Hai says
September 20, 2024
Thank you for the helpful analysis, Marko.
On the issue of IHRL, I would just add that there is another difficulty with the application of IHRL - that is the jurisdictional issue. It is not clear at all that those who were in the possession of the pager came within the jurisdiction of Israel [assuming, for the sake of the argument, that indeed Israel is behind this action). An argument in favor of the existence of such jurisdiction may be to draw an analogy from the Carter case by the European Court of Human Rights regarding the poisoning of Litvinenko.
Regarding your argument according to which, "if the devices could be triggered only all at once, we are talking about one attack" - I am not sure that this should be the decisive factor in order to determine whether this action amounts to a single attack or to a series of distinct attacks. Consider the following hypo: State A is in an IAC with State B. State A decides to plant hundreds of mines and explosive in different locations in State B. Assume that these mines and explosives may only be triggered only al at once - would you still say that we should see the explosion of these mines as one single attack?
Many thanks again
Luigi Daniele says
September 20, 2024
Thanks Marko. I agree that not all the harm foreseen with certainty for civilians should stop the relevant attacks, insofar as that harm can be considered incidental... Not sure this is the case when attackers blow up devices in most crowded urban areas, without any active hostilities in or around (with thousands of civilians thus unable to perceive any danger, rather concentrated in those areas, and with potential lawful targets unable to take any passive precautions). Overall, I fear how some of the arguments read elsewhere on the potential lawfulness of such type of attacks would play out if adopted by NSAGs, included Hezbollah.
There would also be all the ICTY reasoning on "certain apparently disproportionate attacks which may give rise to the inference that civilians were the object of the attack" (but this is surely for a longer discussion). Thanks for the thoughts
Marko Milanovic says
September 21, 2024
Many thanks to all for the comments.
Dave, my only point is that a distinction analysis cannot collapse into a proportionality one, and also that it can't just collapse into the proposition that if the attacker can point to one military objective against which they direct their attack, while affecting hundreds of others, that this therefore means that the attack was discriminate. So, for example, if there was combatant X in a house in the middle of a city, and the adversary dropped a nuclear bomb on that house, killing the combatant but also a hundred thousand others, we wouldn't just say that the attack was disproportionate, but also that it was indiscriminate. (This is e.g. at least partly the idea in Art 51(5)(a) in AP I). But again I do concede the point that proportionality and discrimination are related in this context, and indeed 51(5)(b) treats disproportionate attack as a species of indiscriminate attack. So, my basic point is that the (in)discriminate nature of the attack that Israel used depends on the accuracy of the weapons it used.
Dor, on the jurisdiction point my longstanding view on this is that the capacity to kill an individual is an exercise of state authority and control over that individual, just like in the Litvinienko/Carter case.
On your hypo of planting and then detonating a number of explosive devices in a city at the same time, I think it's quite analogous to our scenario. And my view at least provisionally is the same - if there is no capability to use only some of the planted devices and not others, then their simultaneous detonation should be treated as a single attack. (And such a single attack is at least in principle more likely to be indiscriminate than when having the capacity to only detonate some devices).
Luigi, I'm not sure the distance from areas of active hostilities is really relevant here, except potentially in some kind of human rights analysis. When Ukraine sends drones to strike military objectives in Moscow, far from the front line, the targeting rules of IHL apply in the same way as in Donetsk.
The core issue that you point is one of terrorizing the civilian population. This is Art 51(2) AP I - "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." I'm pretty sure the civilian population of Beirut was in fact terrorized. But the key factual question here is whether this was the PRIMARY purpose of the attacks. (I.e. it could lawfully be A purpose of the attack, but if it's the PRIMARY purpose then the attack is unlawful on that basis alone). Obviously, we don't need to make this kind of factual judgment to a beyond a reasonable doubt standard - we're not a criminal court, as in the ICTY Galic case re the siege of Sarajevo, where this purpose was proven to such a standard. Even more obviously, people who think that the IDF is the most moral army in the world will say that it's absurd to draw this inference of an intent to spread terror, while those who regard it as a genocidal army will draw that inference immediately. My own sense of this is that, in these particular circumstances, drawing the inference of a primary terrorizing purpose would only be appropriate if the attacks were in fact indiscriminate, which I think they likely were, but I would like to have more evidence, especially on the number of civilians injured or killed, before drawing that conclusion.
Dor HaI says
September 21, 2024
Thanks for your reply, Makro.
I am still not sure as to why the decisive factor should be the capability to trigger only some of the planted devices. To me, each of these detonations, regardless of the question whether they could have been triggered only all at once or not - amount to a distinct "act of violence against the adversary, whether in offence or in defence", per Article 49 to API. In my view, the fact that a single act triggers all devices does not necessarily mean that this was a single attack.
To give another example, think of an artillery attack of 100 mortars to 100 different locations. Now, assume that the attacker had one single triggering mechanism for launching the 100 mortars. Would you still argue that the launching of these mortars amounts to a single attack?
Thanks again!
Michael Webster says
September 21, 2024
I appreciate your considered (preliminary) legal analysis of the attack. It is in contract to those you mentioned. However, I disagree with your claim that all members of Hezbollah are not (per se) lawful targets. Indeed, this might be the basis upon which Israel (as assumed) conducted the attack. As I understand, Hezbollah does not structurally distinguish between its military and non-military functions, even if organisationally its members might perform non-military activities at different times. All Hezbollah members answer to Nasrallah. That is why, as I understand, several countries that designate or list Hezbollah as a terrorist organisation do so in its entirety – they draw no meaningful distinction from its organisation. This might also explain, for example, why ‘medics’ were injured when their pagers (military communications devices) detonated. More broadly, the military wing / non-military wing distinction is often an artificiality exploited by armed groups and terrorist organisations to protect their manpower and resources as well as to grow in strength without everything being targeted. Finally, there is a separate argument as to whether there has been, in point, an international armed conflict on foot between Israel and Lebanon for some months.
Mo Ess says
September 22, 2024
Based on what's been publicly released, since neither Israel nor Hezbollah are saying much, it seems there were about 40 fatalities from the pager and walkie talkie attacks. Of these 2 were children, one being the 10 year old daughter of a known military operative. As for the rest and this is based on the death notices that Hezbollah themselves release, most all are pictured in military fatigues and the butt's of assault rifles being held by those pictures are visible in many as well.
My sense is even though the nature of the attack was indiscriminate in the fact tgat Israel couldn't control where the targeted would be or who would be present in the vicinity, the small directed charge resulting in no mass death to bystanders and the nature of the injuries to those holding pagers makes it a very targeted attack. This was a military communication device, Hezbollah has some 100,000 members, it's likely anyone in possession was of some importance to the organization.
Marko Milanovic says
September 22, 2024
Many thanks again for the comments.
Michael, I know there are some statements by Hezbollah officials to the effect that they themselves don't distinguish between the political and military wings of the organizations. But the fact that these statements were made doesn't mean they're true. Hezbollah is an organization that is so large and so diverse in what it does - putting the terror aside for one moment - that again, it cannot possibly be argued that every part of Hezbollah, or every member of the organization, has something to do with its paramilitary aspect. There clearly are distinct parts of the organization, some of which have military tasks - e.g. Ibrahim Aqeel headed one such unit. Hezbollah members sit in the Lebanese parliament - I very much doubt that these people also direct rocket attacks against Israel, and so forth. You say that some countries have sanctioned Hezbollah as such. But others - especially the EU - have expressly sanctioned only Hezbollah's military wing.
So, again, I really don't think it is open to serious doubt that some parts of Hezbollah perform a military function, while others do not. Clearly there's an organic link between them, just like there is such a link between (say) the Russian military and the Russian defence ministry. The difficult issue is how one can tell who's a member of Hezbollah's military wing, and who's a Hezbollah civilian. I'm pretty sure Israeli intelligence agencies have detailed organigrams and deep knowledge of how the organization works.
Marko Milanovic says
September 22, 2024
Dor, you make an excellent point, but I don't think your mortar example is apposite. To my mind, whether an act is a single attack doesn't depend on whether there's a single trigger button, but on whether there are multiple decisions on how the attack is directed. In your mortar example, each mortar would be directed at its own target. In the pagers example, if it was Hezbollah who decided who got the pagers, and then Israel could only direct the attack against the group of people in possession of the pagers without being able to distinguish between them, there is only one act of direction, and therefore only one attack. At least that's my sense of this. In other words, the closer example is one of releasing a single high-explosive bomb simultaneously affecting many persons and objects.
Marko Milanovic says
September 22, 2024
Mo, thanks for your comment. This is all very fact-dependent and the question is what sources of information are reliable. I personally don't want to do my own research on this, if you see what I mean, but would like to see some reputable investigative outfit report their findings.
I do agree that it's important to know who exactly the pagers were being given to. But we don't just don't know yet. If the pagers were being used exclusively for military communications, e.g. coordinating rocket fire, or logistics or whatever, then Israel could argue that individuals in possession of the pagers would presumably be members of Hezbollah's military wing. But if the pagers were also being used to coordinate Hezbollah's political or social activities in Lebanon - and there are a great many - then that assumption doesn't work. So while we may know that people with the pagers were important, I don't think we yet know whether they were military or not.
Saar Aharoni says
September 28, 2024
I'm just someone who was interested in the attacks legality, but have no background in IHL, but I'm leaving this comment here
In relation to distinction, i suppose you consider a situation as follows:
Hezbollah Distributes the Pagers to it's members who can be either civilian or combatants. and the question is whether the explosive is triggered by sending a signal to all pagers to detonate regardless of who is in it's possesion.
and that such a scenario would in effect mean that there is no attempt to insulate the civilian group from the attack making it indiscriminate.
on the other hand, my understanding is that each pager can be called specifically, thus if you know for example that the pager number/id is in possesion of a civilian then you'd simply not send a signal (here i'm assuming that the triggering signal is sent through the paging network).
so if Israel had something like a table of Hezbollah combatants and their respective pager number/id, and send the detonating signal only to combatants then this would satisfy the principle of distinction.
so this attack would be discriminate ONLY IF Israel had access to intelligence on what pager number/id is associated with Hezbollah's Military Wing
Isaac elias says
September 29, 2024
Thanks for this analysis!
In all statements I have read around this topic also in this article I find something missing.
1) Harmless looking device. Consider a device with a button for remotely firing rockets. It looks Harmless and can be carried just like a pager. Legal target?
2) continuing on the above example and discriminating between targets. Isn't it important to consider what the primary purpose of the device is? If the purpose of the device is to communicate military objectives. E.g. go to location A and fire rocket at position B.
Israel could be aware of this primary purpose. Thus even if a supposed civilian Hezbollah member carries such a device the question is if he can be considered civilian if the device is used for military communication. Why would Nasrallah order his members to switch to pagers? A cleric certainly doesn't need a secure device to communicate prayers.
3) strategic and proportionality. Most likely the devices were used for military communication and allocated to military personnel. Injuring or killing a large portion of the groups command structure seems to be of immense strategic benefit.
Generally, what did Hezbollah use the devices for?
Nicolas Boeglin says
November 8, 2024
Dear Professor Milanovic
Many thanks for this extremely interesting post of Sept. 20.
If I`m not wrong since your post, nothing at EJIL-Talk published about the ongoing and unspeakable drama in Lebanon as well as in Gaza and IHL.
Nore about the significance of recent elections in US with regard to the Middle East crisis.
May I share with you this short note I wrote on Israel and Donald Trump close relations? I will maybe inspire you and/or some of our dear EJIL-Talk colleagues to write a post on EJIL-Talk:
https://derechointernacionalcr.blogspot.com/2024/11/eleccion-de-donald-trump-en-estados.html
Yours sincerely
Nicolas Boeglin