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...
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Had a read of these two article on international law and pager attack
Both are making clear these are preliminary views. The assumption that it was attack by a state- Israel. Which is signed up to some international agreements on war.
Both seem to say what is termed a NIAC - non international armed conflict targeting Hezbollah fighters is allowed.
That armed conflict is taking place.
There are three issues in summary
1. This attack has little precedent. Is use of pagers lawfull?
The article by Boothby says these pagers count as booby traps are not not legal weapons to use.
He uses this to say they are unlawful.
Key prohibitions with regard to the use of booby-traps are to be found in Article 7, paragraph 2, which stipulates as follows: “It is prohibited to use booby-traps or other devices in the form of apparently harmless portable objects which are specifically designed and constructed to contain explosive material
And he says:
The pager is being adapted to convert it into a booby-trap of the sort addressed by Article 7(2) of Amended Protocol II and on that basis it would appear, considering what is currently known and assumed, to be an unlawful weapon.
2. Was care taken to ensure targets were military?
Boothby make point that this is not about what happened but what were the intentions and planning of those involved.
A distinction must be made between military and non military personnel. Hezbollah like Hamas is both a military and non military organisation. So targeting must be of military only.
There is argument within law about this. When a person counts as a combatant and when not. Particularly in a conflict such as this when at some point a member may have taken military action and at later time political non military role. These non state organisations cover both.
The first article by Milanovic says in summary:
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
3, Proportionality - Civilian casualties
The bombs were in pagers to close to the object of the attack. So in that case it could be proportional. However the planners of attack , looking at what happened , would not have been able to predict the circumstances of the triggering of devices.
So Boothby says
The targeting law concern will be more likely to centre on whether adequate consideration was given to the incidental injury and damage to be expected from these explosions, given, as is assumed to be the case, that those planning and conducting the operation cannot have known the circumstances that would pertain where each of the large number of explosions took place.
I take that to read that those planning the attack should be able to show that they have taken into consideration civilian casualties. And it looks like this was not possible given what happened.
Milanovic says:
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.
Boothby is more sympathetic to the pagers being in possession of Hezbollah military wing.
So its not all clear cut. And this extraordinary attack needs investigation if only to further clarify international law and what is and was is not allowed.
The main issues seems to be that this is weapon material hidden in a common device. Which is then detonated in public place that is not part of known war zone. A place where civilians thought they were safe.
Confusingly Israel is signed up to some international agreements on how to conduct a war but not all.