‘I entirely understand the desire, and indeed need, for Israel to defend itself properly,’ Tony Blair said on 14 July. ‘As a sovereign nation, Israel has every right to defend itself,’ George W. Bush said on 16 July. By the time these statements were made, the IDF had bombed Beirut ’s international airport, destroyed roads, bridges, power stations and petrol stations, and imposed an air and sea blockade. The Israeli army chief of staff, General Dan Halutz, had promised to ‘turn back the clock in Lebanon by twenty years’. All this in response, ostensibly, to the capture of two Israeli soldiers and the killing of eight others by Hizbullah militants on 12 July.
The right of self-defence identified by Blair and Bush is part of international law. Which makes two conclusions possible: either this area of international law is so elastic as to be inoperative; or it is being interpreted by Blair and Bush in an untenable way.
There are two sets of rules in play: the jus ad bellum, governing the recourse to force; and the jus in bello, also known as 'international humanitarian law', limiting the way belligerents may behave once a conflict has begun. The 1945 UN Charter prohibits the use or threat of force against the 'territorial integrity or political independence' of nation-states. The right of self-defence constitutes an exception to this general prohibition and, until recently, was available only in response to an attack by another state’s armed forces. After 9/11 and the intervention in Afghanistan, which was expressly or tacitly supported by almost all countries, the right of self-defence came to be seen to extend, in certain circumstances, to the use of force against state sponsors of terrorism. But it does not expose countries to military action whenever terrorists are operating from within their territory. Consider, for instance, the position of Germany after 9/11: although the city of Hamburg had unwittingly harboured several of the terrorists, a military response on German soil would not have been justified.
Two years ago, while teaching as a visiting professor in Tel Aviv, I had lunch with a lawyer who works for the IDF. We debated the possibility of air-strikes against Hizbullah, and she argued that attacks in southern Lebanon were permissible because the writ of the Lebanese government didn't extend there. The argument was familiar. My students in the US had sometimes argued that it wasn’t possible to violate the 'territorial integrity and political independence' of a state, such as Somalia, that lacked an effective government.
I suggested to the Israeli lawyer that, even if this 'failed state' argument were valid, Israel would have to limit itself to Hizbullah targets. Strikes elsewhere, such as on roads and airports, would make it more difficult for the Lebanese government to exert control, making her argument self-fulfilling. Moreover, attacking non-Hizbullah targets would breach the centuries-old criteria for self-defence: necessity and proportionality.
During the last three weeks, Israel has breached those criteria. Although Hizbullah poses a threat, as demonstrated by its ability to reach Haifa, there is no evidence implicating the Lebanese government in its attacks. And the threat to Israel should not be exaggerated: its existence is secure, at least for the foreseeable future.
Initially, Israel argued that it was bombing non-military targets in order to put pressure on the Lebanese government to exert control over the south – something it has been reluctant to do in case it triggers another civil war. Israel has stopped making this argument, perhaps because using military force to coerce a non-belligerent is so blatantly illegal. It now argues that the attacks on civilian infrastructure are intended to render Hizbullah immobile.
Israel also claims that its attacks are aimed at removing the longer-term risk posed by Hizbullah's links with Syria and Iran. International law permits 'anticipatory' or 'pre-emptive' self-defence, but only when the need for it is 'instant, overwhelming, leaving no choice of means, and no moment of deliberation'. This test has been generally accepted for more than a century, but in the last four years, Bush has sought to stretch the right of pre-emptive self-defence so as to 'take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.' Only a few countries – India, Israel and Russia – have responded favourably to this; the vast majority have remained opposed, making any change in the rule impossible.
Then there is international humanitarian law, which both Hizbullah and Israel have violated. These rules are set out in the 1949 Geneva Conventions, which Israel ratified in 1951. The direct targeting of civilians is categorically prohibited, and this includes acts or threats of violence intended to spread terror or impose collective punishment. Indiscriminate attacks are proscribed. Above all, individual targets may be selected only if the direct military advantage anticipated from the strike exceeds the expected harm to civilians or civilian objects. Hizbullah’s rocket attacks, which have been aimed in the general vicinity of Israeli cities and towns rather than at specific military targets, are illegal.
So too are many of Israel's attacks. More than seven hundred Lebanese civilians have been killed to date, most of them women and children. Some were struck by missiles as they fled for safety. Others were hit because blasted roads, bridges and petrol stations had made it impossible for them to flee. More died when Israel dropped bombs in densely populated neighbourhoods. Even more are dying now as hospitals, water filtration plants and sewage treatment facilities struggle with power shortages. In no circumstance may attacks on civilians or civilian infrastructure be justified by similar violations on the other side. The horrors of Qana, where dozens of Lebanese civilians died in a single precision air-strike, cannot be balanced by lost Israeli lives.
It has been suggested that Israel's actions are aimed at turning the Lebanese population against Hizbullah. A similar kind of thinking was popular during the Second World War, as evidenced by the firebombing of Dresden, Hamburg and several cities in Japan. It re-emerged shortly before the 2003 Iraq war in the language of 'shock and awe'. But military action undertaken with such an intention was rejected during the negotiation of the 1949 Geneva Conventions, and remains illegal. It's also wrong-headed, since people who have been attacked are more likely to blame their attackers than anyone else.
International humanitarian law forbids methods of warfare that cause 'unnecessary suffering or superfluous injury'. For this reason, Hizbullah's use of rockets packed with ball-bearings is illegal, while Israel's reliance on cluster bombs, fuel-air explosives, white phosphorus (as a weapon rather than for illumination) and depleted uranium is immoral and quite possibly also illegal.
Finally, there's the death of the four UN observers, struck by a precision-guided bomb in a highly visible, long-established post located on a barren hilltop – after Israeli forces had been warned repeatedly that their projectiles were falling perilously close by. It's easy to suspect that the attack was deliberate, perhaps intended to force the UN to withdraw its other observers from the area, which it duly did. It may even have been designed to dissuade countries from offering troops for the international force being championed by Tony Blair – a force that, if it's ever created, will take months to deploy. If the killing of the observers was deliberate, it would constitute a clear violation of international humanitarian law.
Violations of these various rules constitute war crimes, which are subject to universal jurisdiction in the sense that the perpetrators may be prosecuted in any country’s domestic courts. This raises the possibility of trials if they are foolish enough to travel abroad and the local authorities brave enough to arrest them. The Israeli justice minister, Haim Ramon, will wish to be particularly careful. On 27 July, he said that civilians had been given ample warning and 'all those now in south Lebanon are terrorists who are related in some way to Hizbullah.' Unfortunately, there's no possibility of prosecutions in the International Criminal Court, since neither Israel nor Lebanon has ratified the court's statute, and the United States would veto any attempt by the Security Council to use its power to send the matter there.
The absence of a reliable mechanism for prosecuting Hizbullah and Israeli leaders is less serious, however, than the support that Bush and Blair have given to clear violations of international law and the Geneva Conventions. The long-term viability of these rules depends on the willingness of politicians – and the general public – to speak out in defence of international law.
Michael Byers’s most recent book is War Law. He holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia in Vancouver.