Israel’s 2006 war on Lebanon - Reflections on the international law of force

According to the UN, on the morning of 12 July 2006, a Hizbullah unit crossed the Blue Line created by the 1949 Armistice between Israel and Lebanon and attacked an Israeli army patrol near the border, capturing two Israeli soldiers and killing three others. The captured soldiers were brought back into Lebanon, and a heavy exchange of fire ensued between Hizbullah and Israel across the entire length of the Blue Line. Israel’s armed forces targeted, in these initial exchanges, not just Hizbullah positions but a number of roads and bridges in southern Lebanon; while at least one Israeli tank and platoon crossed into Lebanon to attempt to rescue the captured soldiers, resulting in the deaths of a further five Israeli soldiers. Israel’s army chief of staff, Dan Halutz, warned that Israel would “turn back the clock in Lebanon by 20 years” if its soldiers were not released, but Hizbullah stated clearly that it would only return the Israeli prisoners through “indirect negotiations” leading to the “trade” with Lebanese prisoners detained by Israel during its two decade occupation of southern Lebanon.

By the afternoon of 12 July, the Lebanese government had officially requested that UNIFIL (United Nations Interim Force in Lebanon), the UN peacekeeping unit that has been in southern Lebanon since 1978, broker a ceasefire. Israel, however, rejected this unless the two captured soldiers were returned. It then escalated the conflict when Israeli Prime Minister Ehud Olmert declared that Hizbullah’s actions constituted an “act of war” by the government of Lebanon and, as such, “Lebanon is responsible and Lebanon will bear the consequences of its actions.” Israel’s Defense Minister Amir Peretz added that attacks would continue until the Lebanese army had replaced Hizbullah in southern Lebanon, threatening that “if the government of Lebanon fails to deploy its forces, as is expected from a sovereign government, we shall not allow any further Hizbullah to remain on the borders of the state of Israel.” For its part, the Lebanese government officially denied any responsibility or even prior knowledge of the Hizbullah operation, and disavowed completely “the events that have happened and that are happening along the international border.” Both Hizbullah and the Lebanese government once again called for an immediate cease fire.

On 13 July, Israel bombed Beirut’s International Airport and imposed a total land, sea and air blockade on Lebanon. It had by then also greatly expanded its attack to include civilian areas and infrastructure throughout Lebanon, including Beirut. In retaliation, Hizbullah started firing rockets into civilian areas in northern Israel for the first time. Israel also attempted to assassinate Hizbullah leader Hassan Nasrallah, completely destroying the residential area of southern Beirut where he lives in the process. Nasrallah threatened to respond to what he called Israel’s “open war” in kind by attacking civilian areas deep inside Israel. By 14 July, Israel’s declared aims had shifted away from the return of the captured soldiers to include the total destruction of Hizbullah. IDF Brigadier General Ido Nehustan echoed Prime Minister Olmert’s stance in stating: “We know that it’s going to be a long and continuous operation, but its very clear: we need to put Hizbullah out of business. Our aim is to change the situation in which a terrorist organization operates from within a sovereign territory.” The tone had now been set: Israel pounded all of Lebanon, especially the South and southern suburbs of Beirut, while Hizbullah resisted by absorbing these attacks, fighting to repulse Israeli land advances, and launching retaliatory missiles strikes on northern Israel. By the time the “cessation of hostilities” called for in Resolution 1701 came into effect the morning of 14 August, at least 1,187 Lebanese had been killed and over 4,000 thousand wounded, the vast majority of them civilians, and about a third of them children. Moreover, around one million people in Lebanon had been displaced by the war, 15,000 homes destroyed, and the infrastructure throughout the country severely damaged. Forty-three Israeli civilians (including a disproportionate number of Israeli Palestinians) and 117 Israeli soldiers were also killed during the war, while around 300,000 civilians were displaced and thousands of homes damaged.

Israel’s main legal justification for its attacks on Lebanon was its perceived inherent right of self-defense. On12 July, Israel’s Ambassador to the UN Dan Gillerman submitted an official letter of complaint to the Secretary General stating that Israel “reserves the right to act in accordance with United Nations Charter Article 51, and exercise its right of self-defense when an armed attack is launched against a member of the United Nations.” Gillerman added that Israel would “take the appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorizes our citizens.” On the same day Israeli Prime Minister Olmert made it clear that Israel considered Hizbullah’s actions not a “terrorist attack” but an “act of war” by Lebanon, and asserted that “Israel will respond in an unequivocal fashion that will cause those who started this act of war to bear a very painful and far-reaching responsibility for their actions.” In other words, Israel interpreted its right of self-defense to strike back “aggressively and harshly” not just against what it considers a “terrorist organization” (i.e., Hizbullah) but against “those who give it shelter” (i.e., Lebanon as a whole). Foreign Minister Livni affirmed that Israel considered Hizbullah’s action as an “aggression,” and repeated that Israel held Lebanon responsible while alluding to the indirect role of the “axis of terror and hate created by Iran, Syria, Hizbullah and Hamas.”
There are three key questions that need to be analyzed in light of these claims:

(a) Did Israel have a right under international law to use force in response to Hizbullah’s raid and capture of its two soldiers? In other words, was the Hizbullah raid a legitimate casus belli for Israel’s attacks?

(b) Did Israel respect the relevant criteria laid out as conditions of self-defense, in particular with regard to proportionality?

(c) Did Israel respect the law of war (i.e., international humanitarian laws)?
Hizbullah’s cross-border raid did indeed constitute a violation of Israel’s sovereignty under international law (though this is based on the disputed assumption that Hizbullah did indeed cross into Israeli territory6). As such, Israel had the legal right to defend itself in the immediate aftermath of the raid by engaging Hizbullah fighters and trying to retrieve its two captured soldiers. It could even arguably justify limited attacks on infrastructure used by the Hizbullah unit in its escape. The IDF thus specifically informed the UN on 12 July that it had targeted bridges and roads near in order to “prevent Hizbullah from transferring the abducted soldiers.” However, once it became clear that the Hizbullah raid was limited and did not constitute an immediate and overwhelming threat to the state of Israel, Israel was obligated by the UN Charter under Articles 2(3) and 2(4) to take steps to seek pacific settlement of its dispute with Lebanon and not to escalate its attacks on Lebanon. It should be recalled that in rejecting Nazi Germany’s logic of self-defense, the Nuremberg Tribunal reiterated that the requirements for self-defense must be "overwhelming, leaving no choice of means, and no moment for deliberation,” and any such act "must be limited by that necessity, and kept clearly within it.” In other words, since there was clearly time for deliberation about what to do with regard to the soldiers absent any threat of continued aggression by Hizbullah, then Israel was obligated to refer this case to the SC, which then could have authorized the legitimate use of force if a decision was so taken. Condoleezza Rice’s initial statement regarding the Hizbullah attack on 12 July recognized this by stating, “All sides must act with restraint to resolve this incident peacefully and to protect innocent life and civilian infrastructure.” For his part, UN Secretary General Kofi Annan issued a strongly worded statement condemning “without reservation the attack on southern Lebanon” while also demanding the release of the Israeli soldiers.

The Hizbullah raid clearly did not, under international law, constitute a casus belli for Israel to expand its attacks on Lebanon after the first exchanges of fire with Hizbullah ended. There is a an unambiguous distinction in international law between limited border incidents, which might justify a limited reprisal, and “armed aggression” which would trigger a response justified by Article 51 or the provisions of Chapter VII of the UN Charter. The US statement with regard to the definition of “aggression” in the aftermath of the September 11 attacks acknowledges this clearly: “Aggression…is not a description that should be lightly applied to the actions of one side or the other in, for example, a border skirmish or a fishery dispute. To do so would not only degrade the concept of aggression, but raise the risk of aggravating what may be a minor dispute and making it more difficult to resolve.” Richard Falk has recently clarified this further:

UN Charter Article 51 deliberately tried to restrict this option to claim self-defense by requiring ‘a prior armed attack,’ which was definitely understood, as being of a much more sustained and severe initiation of violent conflict than an incident of violence due to an isolated attack or a border skirmish. More concretely, the events on the borders of Gaza and Lebanon that gave rise to sustained Israeli war making did not give Israel the legal right to act in self-defense, although it did authorize Israel to defend itself by retaliating in a proportionate manner. This distinction is crucial to the Charter conception of legitimate uses of international force.

Viewed in its proper context, the Hizbullah raid was thus a “border incident that under international law does not amount to an armed attack against a nation.” This context includes the customary practice between Hizbullah and Israel over many years in which the Blue Line was frequently violated by both sides. This custom, which was limited to border skirmishes and provocative Israeli violations of Lebanese airspace, did not change significantly following Israel’s withdrawal from southern Lebanon in May 2000 and the UN’s subsequent certification that Israel had complied with Resolution 425. This is because Lebanon officially rejected the UN assessment of the withdrawal line in 2000 because it considers that the Blue Line “does not conform in three locations to the internationally recognized borders with Israel,” including Sheba’a farms, and has since consistently maintained that Resolution 425 has yet to be fully implemented because Israel remains in occupation of these three areas which Lebanon “affirms” are an integral part of its territory. This position did not change even after Syria’s withdrawal from Lebanon. The March 2006 Lebanese National Dialogue confirmed this once again in its final statement, and it was re-stated clearly in Lebanese government’s 25 July Seven Point Plan.

As such the status quo since 2000 has consisted of a “tense and fragile” quiet punctuated by “serious” clashes along the Blue Line, including, most recently:
– On 26 May 2006, two officials from Islamic Jihad were assassinated by a car bomb in the Lebanese city of Sidon. Israel was widely suspected of being behind this. On 28 May, “unidentified armed elements” shot at least eight missiles across the Blue Line towards an Israeli army position, wounding one soldier. The Israeli army retaliated by attacking a Palestinian camp in southern Lebanon.
– On 1 February 2006, Israeli soldiers shot and killed a young Lebanese shepard within Lebanese territory. Hizbullah retaliated on 3 February by shelling Israeli army positions in Sheba’a farms, and the Israeli army hit back.
– On 27 December 2005, “unidentified armed elements” fired four rockets across the Blue Line towards Israel, and the Israelis responded with an air strike on a Palestinian refugee camp south of Beirut.
– On 23 November 2005, an Israeli civilian paraglider crossed the Blue Line and landed in Lebanese territory, provoking an exchange of small arms fire between Hizbullah and the Israeli army.
– On 21 November 2005, a heavy exchange of fire between Hizbullah and the Israel army across the Blue Line left four Hizbullah fighters dead. The ensuing Israeli retaliation was heavy and included aerial bombing. The exchange of fire subsequently spread all along the Blue Line and lasted for over nine hours with several Israeli soldiers and Hizbullah fighters wounded.
– On 29 June 2005, two Hizbullah fighters and one Israeli soldier were killed when a Hizbullah unit crossed the Blue Line near the border and came across an Israeli patrol.
– On 9 January 2005, an Israeli soldier was killed and 3 wounded when a roadside bomb in the Sheba’a farms area was detonated by Hizbullah fighters. Israel responded first by opening gun and tank fire, which killed a French UN observer, and shelling nearby Hizbullah bases.

According to UNIFIL reports, in all of these violations of the Blue Line, reprisals were carried out in a limited manner because the ‘rules of the game’ were acknowledged by, and adhered to, both sides since the April 1996 “ceasefire understanding.” In the words of Richard Augustus Norton, a “dialogue of violence” existed between Hizbullah and Israel in which the “permissible limits of violent action for both IDF [i.e., Israeli army]and the resistance” were clearly defined. These activities, in other words, constituted customary behavior as long as they were limited to military targets, such as occurred in the initial Hizbullah raid on 12 July.

Moreover, Hizbullah’s 12 July capture of Israeli soldiers was not a new policy, but a declared strategy in order to free Lebanese prisoners held in Israel. On 7 and 16 October 2000 respectively, Hizbullah captured the remains of three Israeli soldiers (who has been “killed in action” according to the Israeli army) and abducted an Israeli reserve colonel. The Israeli prisoner and the remains of the three dead Israeli soldiers were released on 29 January 2004 in a landmark prisoner exchange via German mediation that included 450 Lebanese held in Israeli jails. On the first anniversary of the prisoner exchange, Hizbullah leader Hassan Nasrallah stated clearly that "The Zionist enemy daily declares that Hizbullah has taken a strategic decision to capture Israeli soldiers. I confirm that all options are open" to free the remaining Lebanese prisoners that Israel refused to release in the 2004 exchange. Hizbullah has, since then, attempted other such raids to capture Israeli soldiers. The most recent attempt prior to 12 July was on 27 November 2005. It was unsuccessful, but Nasrallah vowed publicly at the time that such actions would continue.

Indeed, Hizbullah’s capture of Israeli soldiers may itself be justified under the international customary law of reprisals to redress a legal ‘injury’ by Israel’s earlier capture of Lebanese prisoners during its occupation of southern Lebanon in contravention of the provisions of the 1949 Geneva Conventions. Lebanon, it should be recalled, considers Hizbullah a “national resistance” group which exists “alongside” the Lebanese national forces. It is also the long-held stated position of the Lebanese government that its citizens held in Israeli jails must be released as part of Resolution 425: “The Government of Lebanon…insists on the immediate liberation of all Lebanese hostages and detainees (as well as the return of all Lebanese corpses) from Israeli prisons, since their situation was related to the period of occupation and its consequences.” This position was re-stated in Lebanon’s “Seven Point Plan” of 25 July 2006. Accordingly, a reprisal by Hizbullah in terms of capturing the Israeli soldiers would meet the criteria set out in the Naulilaa case: it follows an illegal act by Israel; was preceded by a request that Lebanese prisoners be released; and is certainly proportionate (prisoners for prisoners) to the original act.

In any case, as Richard Falk points out, any retaliation by Israel in the name of self-defense must be proportionate to the original attack. However, there was a clear consensus within the international community that, notwithstanding its right of limited self-defense, Israel’s response to Hizbullah’s 12 July operation was excessive, and in the words of the European Union “disproportionate.” The EU further denounced Israel’s air, sea and land blockade of Lebanon as completely “unjustified.” Russia attacked what it saw as the "continuing destruction by Israel of civilian infrastructure in Lebanon and in Palestinian territory,” adding that “the disproportionate use of force from which civilian populations suffer cannot be understood and justified." The French President Jacques Chirac called Israel’s response “completely disproportionate,” while Foreign Minister Douste-Blazy stated on 13 July that "this is a disproportionate act of war…The only solution is a return to reason by both sides…We are calling for a lowering of tensions." For his part, Kofi Annan insisted that Israel’s policy of “disproportionate use of force and collective punishment of the Lebanese people must stop.”

Israel has argued that in view of repeated violations of the Blue Line by Hizbullah, a “proportional” response does not mean simply a tit-for-tat retaliation, but a larger reprisal intended to weaken Hizbullah more generally. Israeli Foreign Minister Livny borrowed from the reasoning underlying US “war on terror” when she made it clear that “proportionality is against a threat, and it is not an answer to a concrete situation on the ground.” However, it is clear that even as an anticipatory measure against the “threat” posed by Hizbullah’s stockpile of weapons, the threat must be imminent as set out by the Caroline case. As outlined earlier, Hizbullah did not, on 12 July, pose an imminent threat to Israel as it had no intention of staying in Israeli territory. The logic of allowing each state to use disproportionate force “against a threat” which only it determines (as opposed to the SC), is certainly a very dangerous one. As such, both the EU’s Javier Solana and UN Emergency Relief Coordinator Jan Egeland dismissed Livney’s claims. Solana responded that it is disproportionate when “it inflicts more suffering on the people” than is “necessary in order to obtain an objective.” This comment is all the more important given that Israel failed to defeat Hizbullah during the war, and so the humanitarian disaster created could not even be justified in retrospect in terms of achieved objectives. For his part, Egeland stated that, “You cannot invent new kinds of proportionalities. I’ve never heard that the threat is supposed to be proportional to the response. Proportionality is there in the law. The law has been made through generations of experience on the battlefield. If you kill more civilians than military personnel, one should not attack." This is crucial in light of the fact that out that “for every civilian killed in Israel there are more than 10 killed in Lebanon,” as Egeland pointed out.

Moreover, the UN SC was already dealing with this “threat” via the adoption of SC Resolution 1559 (2004), which “calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias.” Israel repeatedly justified its attacks on Lebanon by claiming that it was “defending its citizens” because of what it saw as the failure of Lebanon to implement Resolution 1559. However, the logic of a state taking the enforcement of a UN resolution into its own hands (as opposed to the SC) flies in the face of the whole notion of ‘collective security’ embodied in the UN Charter and is illegal under international law. Such a logic would mean that Lebanon could have legitimately bombed Tel Aviv until Israel complied with Resolution 425 of 1978; or that the Syrians and Palestinians have a right to use force against Israel and its citizens to force it to comply with Resolutions 242 (1967) or 338 (1973). Only the UNSC itself has a right to enforce its own resolutions under Chapter VII of the UN Charter.

Finally, even after Israel took the decision to use force against Lebanon, it was still bound by international humanitarian laws including the provisions of the Geneva and Hague Conventions. Israel claims that deaths of civilians and damage to civilian infrastructure were either the inevitable ‘collateral damage’ permitted by international law during “lawful military operations;” or due to Hizbullah’s “deliberate placing of military targets in the heart of civilian areas” in which case “those who choose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders.” However, Israel’s violation of international humanitarian laws has been well-documented by the UN and human rights groups. The UN’s Jan Egeland made this clear several times, while on 11 August UN Human Rights Council “strongly” condemned “grave Israeli violations of human rights and breeches of international humanitarian law in Lebanon” and called for the establishment of a high level committee to investigate “the systematic targeting and killings of civilians by Israel.”

A Human Rights Watch (HRW) report, based on extensive on-the-ground research in Lebanon, assessed Israel’s conduct during the period 12 and 27 July 2006, and dismissed Israel’s claim that it was trying to minimize civilian casualties, revealing instead Israel’s “indiscriminate use of force” as well as “a systematic failure by the IDF to distinguish between combatants and civilians.” The HRW also cast doubt on two central claims made by Israel, claiming that “Israeli forces deliberately targeted civilians” and that it “found no cases in which Hizbullah deliberately used civilians as shields...”. A more comprehensive report by Amnesty International (AI) published on 23 August 2006 describes in detail an “Israeli policy of deliberate destruction of Lebanese civilian infrastructure, which included war crimes” during the recent conflict. The report includes evidence of the following:
– Massive destruction by Israeli forces of whole civilian neighborhoods and villages;
– Attacks on bridges in areas of no apparent strategic importance;
– Attacks on water pumping stations, water treatment plants and supermarkets despite the prohibition against targeting objects indispensable to the survival of the civilian population;
– Statements by Israeli military officials indicating that the destruction of civilian infrastructure was indeed a goal of Israel’s military campaign designed to press the Lebanese government and the civilian population to turn against Hizbullah.
As such, the AI report makes it clear that:

The evidence strongly suggests that the extensive destruction of public works, power systems, civilian homes and industry was deliberate and an integral part of the military strategy, rather than ‘collateral damage’ – incidental damage to civilians or civilian property resulting from targeting military objectives… The widespread destruction of apartments, houses, electricity and water services, roads, bridges, factories and ports, in addition to several statements by Israeli officials, suggests a policy of punishing both the Lebanese government and the civilian population in an effort to get them to turn against Hizbullah. Israeli attacks did not diminish, nor did their pattern appear to change, even when it became clear that the victims of the bombardment were predominantly civilians, which was the case from the first days of the conflict.

In other words, by choosing to escalate its war beyond the border area Israel pursued a policy of collective punishment against the Lebanese people as Kofi Annan confirmed, and thus it had “committed grave breaches of international humanitarian law” by causing “death and suffering on a wholly unacceptable scale.” The fact that Israel claims Hizbullah may have also violated international humanitarian laws will doubtlessly be pursued by human rights groups such as AI or HRW who are eager not to be painted with the “anti-Israel” brush. However, allegations of Hizbullah ‘war crimes’—even if they are proven—do not alter or rationalize Israel’s responsibility for its own war crimes.