Israel launched a military campaign in Lebanon after the capture of three of its soldiers. By which law is this campaign governed? Ans: On July 12, 2006 the Hezbollah infiltrated into Israeli territory and attacked two IDF armored jeeps patrolling the border with Lebanon. Three soldiers were killed and two were kidnapped. In response, Israeli ground forces entered Lebanon in the area of the attack. Israel used Article 51 of the UN Charter to launch the attack, i. e. the right to self-defense.
The previous attack by Hezbollah was on June 25 when they kidnapped an Israeli Defence Forces (IDF) soldier, thus taking the number of those kidnapped to three. The armed conflict between Israel and the Hezbollah was governed by international humanitarian law as well as international law; including those applicable to all UN member-nations. Common Article 3 of the Geneva Conventions of 1949, to which Israel is a party, sets forth the minimum standards for all parties engaged in a conflict, between a state party and a non-state party.
It provides the basic protection under international law to non-combatants. The customary rules of engagement between those engaged in an armed conflict are based on established practice. They bind all parties to an armed conflict, whether state actors or non-state armed groups. Within international law and IHL, it is difficult to find a rationale for the large-scale application of force by Israel against Hezbollah targets in Lebanon. There were undoubtedly large-scale civilian casualties in the air strikes and artillery bombardment by Israeli forces.
One must take into account that the Hezbollah is not a state actor and therefore, Israel’s war was against a non-state actor. But by attacking Lebanon, it becomes possible to apply international law as one state launching an attack on another state; in other words there are two contracting parties. Of course, Lebanon did not militarily respond to the Israeli attacks. Therefore, this was not a declared war. It was more a war on terror effort using military force with the aim of disrupting the Hezbollah’s command and control and supply chains.
But the fact is also that the Lebanese government was aware of and permitting the Hezbollah to use its territory to carry out attacks on Israel. Was this not a violation of international law? Therefore, there is a sense in Israeli aggression. One way of viewing the Israeli action in Lebanon is to say that it follows the same action as the US is doing in Iraq. But how do the principles of distinction and proportionality apply in the case of Israel’s attack on Lebanon?
The main point is that by using the argument given in Article 51 of the UN Charter and by saying that the use of maximum force was in response to the terrorist attacks by the Hezbollah, the Israeli state reserved the right to choose the means to attack the enemy. Q- B) It was alleged that Israel was not respecting the principle of proportionality. Explain this principle in respect to ius ad bellum and ius in bello. Ans: When Israel launched an attack on Hezbollah targets they did so using maximum force, thus giving rise to the allegation that in proportion to the military gain, they used disproportionate force.
As a result of the massive Israeli retaliation, there were 1,1,83 fatalities who were non-combatants. But the application of military force does have the risk that in a war with grey areas, the likelihood of collateral damage is always there. The issue at hand is whether the means justify the end and whether the decision to start the conflict itself is justified by international law and practice. Ius ad bellum is the area of law, which governs whether or not it is lawful for parties to go to war. Ius in bello is the law that governs the means of conflict.
In traditional war, between states it is easy to apply these principles. But in this day and age of modern terrorism the situation becomes murky and applying clearly defined norms becomes difficult. Was Israel justified in going to war against the Hamas? Yes, if one considers the right of self-defense and the right to protect her sovereignty and territory are concerned. After all, Israel is a legally recognised international entity with rights that govern international relations. But in terms of means there appears to be a problem.
Here one has to apply the IHL’s of distinction and proportionality to determine where the means adopted to achieve the military goals were justified or not. Also it appears that Israel did not give adequate warning of possible attacks on civilian targets to allow innocents to leave. So the intention may have been there to respect IHL, but in practice it fell by the roadside as the UN Human Rights Commission on the war in Lebanon said in its report in December 2006. It also pointed out that the proportion in which the Israeli Defence Forces used some weapons clearly violated the law.
They noted that Israel used 90 per cent of cluster munitions in the last 72 hours of the war, clearly in excess of the military necessity and utility of such action. What were the aims of Israel in going to war? Did the Israeli’s consider this as a last resort or did they take up action the moment the situation unfolded before them? How does one measure the issue of proportion in this case of a state fighting a non-state actor? And what were the consequences of the Israeli action? Was this massive use of force justified under the principle of ius ad bellum?
Israel wanted to free its soldiers who had been kidnapped by the Hezbollah. But they did not formulate a range of options to ensure the release of their soldiers. Instead they simply attacked Lebanon, almost in a pre-meditated fashion with a view to teaching the Hezbollah a lesson. This meant that the means employed to achieve political goals against a non-state actor were not proportion to the achievable targets. In the long run, Israeli action, though supported by several nations was not beneficial to the Middle East Peace Process and has only set back the chances of international efforts at settlement.