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 Commission 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.
