Israel in Lebanon
The Report of the International
Commission to enquire into reported
violations of International Law by
Israel during its invasion of the Lebanon
Precautions in attack: Civilian objects and population
In addition to requiring that attacks be directed only against military objectives and that civilian objects and population be spared, the international law of war imposes obligations relating to the taking of precautions in attack, with the object of preventing damage to or destruction of non-military objects and civilians.
For example, Hague Convention IV of 1907 requires: ‘The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities’ (Art. 26). In sieges and bombardments ‘all necessary steps must be taken to spare’ various civilian objectives, hospitals, monuments, cultural institutions, etc. (Art. 27). Similarly, Hague Convention IX on Naval Bombardment 1907 required commanders to take ‘all due measures in order that the town may suffer as little harm as possible (Art. 2); that again ‘all the necessary measures’ be taken to spare as far as possible various civilian objects (Art. 5); and ‘If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities’ (Art. 6).
The ICRC Draft Rules 1956 enjoin the ‘person responsible for ordering or launching an attack’ to make sure the objective is duly identified as military in nature; if there is a choice, to ‘select the one, an attack on which involves the least danger for the civilian population’; and ‘whenever the circumstances allow, warn the civilian population in jeopardy, to enable it to take shelter’ (Art. 8(a) & (c)). Article 9 requires that ‘all possible precautions shall be taken’ to mini mise civilian losses or damage. Article 11 requires the parties to ‘take all necessary steps’ to remove civilians subject to their control from the danger of exposure to attack, and Article 13 prohibits parties from placing or keeping civilians near military objectives so as to induce the enemy to refrain from attack.
ICRC Resolution of 1965 and the UN General Assembly Resolution 2444 of 1968 reiterate the injunction to spare the civilian population as much as possible. UN General Assembly Resolution 2675 of 1970 states that ‘every effort should be made’ and ‘all necessary precautions should be taken’ to avoid civilian loss or injury or damage (Art. 3).
In particular, with regard to hospitals, Geneva Convention IV (Civilians) 1949, provides (Art. 19):
‘The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases,a reasonable time limit, and after such warning has remained unheeded.’
With respect to weapons, UN Convention on Excessively Injurious Weapons 1981 requires, with regard to mines, booby traps and other devices and incendiary weapons, that ‘all feasible precautions’ be taken to protect civilians.
The principles and rules of conventional and customary international law are codified in Protocol I Additional to Geneva Conventions 1977:
PRECAUTIONS IN ATTACK
1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) Those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of para. 2 of Art. 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
(b) An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
(c) Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objectives to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.
5. No provision of this Article may be construed as authorising any attacks against the civilian population, civilians or civilian objects.
The Commission concludes above that the IDF attacked objectives which were in large part not military objectives, and that acts of violence were directed either intentionally or at best recklessly against civilian objects and population. Such a conclusion renders unnecessary a consideration of whether the precautions required by international law were taken by the IDF in those cases. But the Commission has received evidence of claims by the IDF and the Israeli political authorities that the IDF did deeply consider the question of the civilian population and ‘agreed not to shell and not to bomb built-up areas, unless it was absolutely crucial’.
Intention and Carelessness
The general principle of customary international law, as expressed in Protocol I of 1977, is that ‘constant care shall be taken to spare the civilian population, civilians and civilian objects’ (Art. 57(1)). The evidence before the Commission establishes that there was a massive amount of damage to built-up areas, and that, as a consequence, there were very large numbers of civilian casualties. The Commission concludes that the IDF violated this general principle of the international law of war. The evidence cited in this Report alone suffices to establish beyond any reasonable doubt that, as many witnesses put it in their testimony to us: even if the bombardment was not intentional, it is evident that the Israelis did not care whether they hit civilians or not, and to that extent the destruction and the casualties were inevitable.
Precautions in Bombardment
One aspect of the legal principle requiring precautions in attack is that those who plan or decide upon an attack should do everything feasible to:
(1) verify that the objective is a military one;
(2) avoid civilian casualties and damage;
(3) refrain from attacks which may cause civilian damage or casualties disproportionate to the military advantage anticipated. (see Protocol I of 1977, Art. 57(2)(a))
The Commission has been presented with overwhelming evidence that there was extensive bombardment causing civilian casualties and damage. Prima facie, this indicates a violation by the IDF of its obligations as listed above. The IDF spokesmen and Israeli political leaders frequently insisted that only military targets were aimed at. For example, a broadcast on IDF radio of 6 September, 1982 claimed that buildings were hit mainly in the southern part of West Beirut, in the area of the (Palestinian) camps. Only 40 buildings in the northern part of West Beirut were said to have suffered hits. The targets bombed and shelled were said to have been identified as ‘terrorist’ headquarters or bases. Similarly, claims were made as to the accuracy ofIDF bombardment. For example, Mr Moshe Yegar, Assistant Director-General of the Israeli Foreign Ministry was quoted as saying: ‘It is accepted, I think, that our Air Force is very accurate.'
The dilemma that results was stated by a Lebanese health official in a report in The Sunday Times: ‘If attacking civilian sites is the Israelis’ intent, then their public statements about going only for military targets are lies. If it is not intentional, then their claims of accuracy are grossly over-rated. They cannot have it both ways.' This was a sentiment expressed to the Commission on many occasions by witnesses who testified in Lebanon.
The obligation to do everything feasible to verify that the objective is a military one requires that target intelligence be of the highest possible quality in the circumstances prevailing. Only if target information is gathered, evaluated and utilised effectively may the attack be both militarily successful and comply with the legal obligation of taking precautions in attack. The questions that arise in the wake of the IDF operations were posed by the Defence Correspondent of the Jerusalem Post, Mr Hirsh Goodman:
‘The battle for Beirut and the application of Israeli air power to that battle will become a compulsory subject for military historians. The strikes were relentless, the aircraft used ultra-sophisticated, the ordnance dropped highly destructive, the delivery systems the most modern in the world. Yet the 11,000-13,000 terrorists and Syrians under siege in the city managed both to survive and to retaliate. .
Why, then, was the air force used so extensively, especially given the diplomatic considerations and the human suffering caused by urban aerial bombardment?
The air force was necessary to help bring the terrorists to agree to leave the city; but why was it used after they had agreed to do so? Sharon has claimed that the goal was to strike at the PLO leadership; but not a single leader of known position or name was killed. There was a rumour that Abu Iyad, Arafat’s deputy, was injured in one strike, but the rumourwas quashed when he made a public appearance a few days later.
If killing off some key PLO leaders was an important enough goal to risk jeopardising the agreement and plummet Israeli-American relations to breaking-point, why did the defence minister wait until the end of the war to achieve that goal? And why through an almost indiscriminate use of force which left hundreds of casualties among civilians but none of any real significance among the terrorists?’
The Commission’s view is that, in the light of the evidence it has received, the answer to the questions posed lies in the violation by the IDF and its political masters of the principles of international law. They did not care to verify that objectives were military ones; they did not care to avoid civilian casualties or damage; and they did not care to refrain from attacks which caused civilian damage or casualties disproportionate to any military advantage anticipated.
Precautions in Strategy
The military objectives of the IDF from the inception of the operation code