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

Chapter 8

The Law
The Preamble to the Hague Convention IV of 1907 contains what has come to be known as the ‘de Martens Clause’ (reiterated in Resolution XXIII adopted by the International Conference on Human Rights, Teheran, 12 May, 1968):

The Geneva Convention IV (Civilians) 1949 made explicit this protection (Part II – General Protection of Populations Against Certain Consequences of War). Article 13 covers ‘the whole ofthe populations of the countries in conflict’. The Convention singles out for special protection certain categories: e.g. the wounded and sick (Art. 16); persons working in civilian hospitals (Art. 20). It provides generally (Art. 27):

Article 28 does provide, however, that ‘The presence of a protected person may not be used to render certain points or areas immune from military operations’ .

The general customary rules of international law protecting civilians are expressed in a number of instruments. The ICRC Draft Rules of 1956 direct the parties to the conflict to ‘leave the civilian population outside the sphere of armed attacks’ (Art. 1). Article 6 prohibits attacks directed against the civilian population. as such. whether as individuals or  groups. It forhids attacks against ‘dwellings, installations or means of transport which are for the exclusive use of, and occupied by the civilian population’. It reiterates, however, that should members of the civilian population ‘be within or in close proximity to a military objective they must accept the risks resulting from an attack directed against that objective’. ICRC Resolution 1965 and UN General Assembly Resolution 2444 (1968) both repeat that ‘it is prohibited to launch attacks against the civilian population as such’, and insist ‘That distinction must be made at all times between persons taking part in hostilities and members of the civilian population to the effect that the latter be spared as much as possible’. The Institute of International Law, Edinburgh, 1969 declared that the civilian population cannot be considered as a military objective, nor the means indispensable for the survival of the civilian population (Art. 3). It affirmed that ‘Existing international law prohibits all armed attacks on civilian populations as such’ (Art. 4). UN General Assembly Resolution 2675, 1970 insists that ‘a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations’ (Art. 2) and that ‘In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war’ (Art. 3). The UN Convention on Excessively Injurious Weapons 1981 provides specific protection of civilians from the effects of certain weapons (mines, booby traps and other devices – Protocol II, Art. 2; and incendiary weapons Protocol III, Art. 2).

Protocol I Additional to Geneva Conventions 1977 expresses the principles of international law relative to civilian protection as follows (Arts. 50, 51(1-3,6-7)):

ARTICLE 50
DEFINITION OF CIVILIANS AND CIVILIAN POPULATION
l. A civilian is any person who does not belong to one of the categories of persons referred to in Art. 4(a)(I), (2), (3) and (6) of Convention III and in Art. 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

ARTICLE 51
PROTECTION OF THE CIVILIAN POPULATION

l. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. . .
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.

7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.’

The law thus prohibits making the civilian population or individual civilians the object of attack. On the other hand it is recognised that incidental or collateral civilian casualties may be an indirect and unavoidable consequence of a lawful military operation. As with civilian objects, the actions of the IDF need to be assessed to see whether the civilian casualties which resulted from its actions were indirect, incidental and unavoidable consequences of military operations directed at military targets.

The Facts
The evidence is overwhelming that there was a very large number of casualties during the conflict. There are considerable difficulties in the way of arriving at any precise figures. Some of these were outlined to us by the members of a group of professional statisticians, sociologists and demographers in Beirut carrying out a study of casualties. An exhaustive and careful study of hospital records gives some indication, but there are the problems of calculating those victims who never reached hospitals, e.g. those who were buried in graves alongside the site of a building destroyed in bombardment, or buried within the rubble of a collapsed structure, or collected together from an area and buried in mass graves.

On 2 September 1982, two Beirut newspapers published figures for the number of victims based on the records of Lebanese hospitals and civil defence and police reports (an-Nahar and L’Orient le Jour):

Dead ? 17,825
Wounded ? 30,203

Various other calculations abound in the reports of the international press and those of Lebanon and Israel. The former tend to assess the casualties in the thousands; the Israeli sources, in the hundreds. Estimates of casualties in particular areas may be obtained by a detailed survey of the daily newspaper coverage of the conflict in Beirut newspapers. This has been done by the Commission and the results confirm casualties in the thousands. Those collected by authorities in particular localities also offer a guide. For example, the figures issued by the Municipality of Sidon, based on a survey reaching only 65-75% of the Greater Sidon population (excluding Ain el Hilweh), were as follows (dated 12 July 1982):

Dead and Lost – Lebanese
– 666 registered by families + 300 burned bodies   =  966
Victims and Lost – Lebanese and Palestinians  = 1,000
Wounded – Lebanese and Palestinians = 2,800

Mr David MacDowell, an Oxfam representative testifying before the Commission in Beirut on 2 September said his figures from the Municipality of Sidon for Lebanese citizens only were 1,278 dead and 600 missing, presumed dead.

For the purposes of the international law of war, the precise figures are secondary to the number and proportion of civilians among the casualties. The figures quoted above, published in the two Beirut newspapers, give a partial breakdown of the casualties as between civilians and combatants outside Beirut. For example, the detailed breakdown in an-Nahar (2 Sept, 1982) is:

Al Chouf, Aley and West Beka’a:
Lebanese civilians: 458 killed 797 wounded
Joint Forces ? Palestinians and Syrian Army: 3,348 killed 5,169 wounded
Khalde, Ouzai, Al Naame:
Lebanese civilians: 346 killed 589 wounded
Joint Forces ? Palestinians and Syrian Army: 587 killed 989 wounded
Sidon, Mieh Mieh, Ain el Hilweh, Rmila, Jiyeh, Saadiyat, Damour, Siblin, Wadi al Zeine, Al Dalhamiya:
Lebanese civilians: 1,239 killed 1,588 wounded
Joint Forces Palestinians and Syrian Army: 4,137 killed 6,851 wounded

Tyre, Al Bas, Bourj el Shamali, Rashidiyeh, Adloun, Tyre village region:
Lebanese civilians: 470 killed 697 wounded
Joint forces, Palestinians: 1,725 killed, 2,384 wounded

This produces the following proportions:

	Lebanese civilians	Military and Palestinians
Dead	2,515	9,797
…(ratio)	1	3.89
Wounded	3,666	15,393
…(ratio)	1	4.19
Total casualties	6,181	25,190
…(ratio)	1	4.0

These figures register the magnitude of the civilian casualties among the Lebanese population alone – for the Palestinians, civilians and combatants were lumped together. They thus indicate that for every four combatants, at least one (but probably more) Lebanese civilians died or were wounded. (In World War I, 5% of the killed were civilians; in World War II, 50%; in the Korean War, 60%; and according to the estimates of the US Government for killed and wounded in the Vietnam War, 70%).[33]

A contrast may be made with the report of an IDF spokesman on the number of civilian casualties in Lebanon: 65 Lebanese citizens and Palestinians were killed in the Tyre area, 256 in Sidon and 10 in Nabatiyeh; 95 were injured and hospitalised in the Tyre area, 1,000 in Sidon and 15 injured in Nabatiyeh. The report did not account for civilian casualties in the Hasbayya, Jezin, Al Chouf, Aley, Beka’a and Rashaya regions, but the spokesman said the figures there were no more than marginal: ‘Only little damage was caused in the eastern sector’.[34]
It needs to be noted that these figures do not include the casualties in Beirut. These were stated in an-Nahar (2 Sept, 1982) to be:

Dead: 5,515
Wounded: 11,139

Again, in contrast, an IDF spokesman in Beirut estimated that ‘fewer than 3,000 people were killed in the fighting in Beirut since 6 June, and 80% of the casualties were PLO terrorists or members of other armed groups’. [35] The same report goes on to say that this claim contradicts figures mentioned the previous week. Joshua Brilliant reports that ‘A doctor in the surgical departments of the American University Hospital in West Beirut told the Jerusalem Post their morgue contained four civilians for every fighter. His estimate tallied with the calculations of a British reporter who had been in West Beirut throughout the fighting and who said 80% of the casualties were civilian’ .
It should be noted further that the an-Nahar figures are distorted to the extent that Palestinian civilian casualties are lumped together with military casualties so as to inflate these latter, instead of being added to the Lebanese civilian casualties. Given the intensive bombardment of Palestinian refugee camps, districts and PLO offices, it is to be expected that the true ratio of civilian to combatant casualties is much higher than 1:4.
The Commission concludes that the evidence indicates that the number of civilian casualties during the conflict registered in the thousands, and that the proportion of civilian to military casualties was also high. The next step is to establish whether these civilian casualties were the consequence of violations by Israel of the laws of war.

Civilian and Combatants
The prohibition on attacks directed against civilians implies that care must be exercised by the attacker in distinguishing between civilian and combatants. The distinction needs to be directed at two levels:

(a) that of individual civilians, where the operating principle is as stated in Protocol I Additional to Geneva Conventions 1977, Article 50(1): ‘In case of doubt whether a person is a civilian, that person shall be considered to be a civilian’.
(b) that of civilian populations generally, where the principle expressed in Protocol I, Article 50(3) applies: ‘The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character’.

The degree of care needed to be exercised by the attacker is contingent upon the ease or difficulty with which civilians can be distinguished from combatants, and to this extent is dependent upon whether combatants take steps to distinguish themselves from civilians (see, e.g., Art. 44(3) of the Protocol I). Lack of care in the attacker, coupled with lack of such steps on the part of combatants will lead to disastrous consequences for the civilian population.

Individual civilians
Insofar as in the zone of actual combat care is not taken by the combatants to distinguish themselves from civilians, the attacker will be hard put to avoid civilian casualties where the decision to direct fire needs to be made quickly. See, for example, the account of an IDF soldier involved in the battle for Ain el Hilweh refugee camp.[36]

Also the evidence of Lt Yaron Pik to the Commission in Jerusalem:

The Commission nonetheless concludes that, on the evidence presented to it, there were a number of instances where indiidual civilians may have been the subject of direct attack, either intentional or due to lack of care on the part of the IDF. Dr R (who requested anonymity) gave testimony to the Commission about the entry of IDF tanks into Sidon. He testified that the tanks fired indiscriminately; not distinguishing civilians from combatants. In one incident, a Dr Ahmed Ghader was coming out and when he saw the tanks was frightened and tried to run away. He was shot dead. A Mr Shouhari, a 65-year-old man, lost both his legs in a similar incident.

The Chief of Staff of the Palestine Liberation Army in Amman, Lt Col Mohamed Qudsia, described to the Commission the strafing by the Israeli Air Force of a long line of civilian vehicles on the Beirut-Damascus road. Members of the Commission subsequently witnessed large numbers of burned out civilian vehicles on this road.

Civilian population
These individual civilian casualties are vastly overshadowed by the evidence of IDF attacks which caused enormous casualties to civilian populations generally. The evidence before the Commission was indisputable that the IDF bombardments caused death and injury to thousands of people, Palestinians and Lebanese. Were these casualties the result of violations by the IDF of the laws of war?

Palestinians: combatants, civilians and ‘terrorists’
Acts of violence are permitted against combatants. Combatants are those who are ‘members of the armed forces of a Party to the conflict’, i.e. ‘have a right to participate directly in the hostilities’ (Protocol I of 1977, Art. 43(2)).

The Commission received evidence that the PLO carries out extensive military training for the Palestinian people – men, women and children. The Commission also has evidence that similar training is the rule amongst the population of Israel. That does not, of course, transform all those individuals into combatants who are subject to lawful attack. Many of the casualties were caused by IDF bombardment of civilian areas ? refugee camps, urban centres, etc. (described above). The vast majority of the population of these areas was not, in any sense, participating directly in hostilities.

The Commission received considerable evidence that bombardment was directed on Palestinian centres of population without regard to whether the targets were combatants or civilians. The objective appeared to be to destroy not combatants, but ‘terrorists’. This term, as used by IDF spokesmen and their political commanders, does not appear to distinguish between combatants and civilians. The Commission’s review of transcripts ofIsraeli broadcasts reveals innumerable references to: e.g.

– ‘annihilation of the PLO terrorists’ – Mr Yitzhak Shamir, Israeli Foreign Minister, IDF radio, 8 June, 1982.
– ‘destroy the terrorist infrastructure’ – General Rafael Eitan, IDF Chief of Staff, interview of 14 June, 1982.
– ‘destruction of the terrorists’ infrastructure’ – Mr Ariel Sharon, Israeli Minister of Defence, on Israeli television, 14 June, 1982.

The objective to be destroyed was clearly not confined to combatants. E.g.:

– the IDF Deputy Chief of Staff, Moshe Levi, in an interview with the Israel Home Service, 10 July, 1982: ‘It seems to me that we are dealing with an organisation ai-military establishment which conducted a wide range of activities, beginning with acts of sabotage or incitement and demonstrations which, although not involving weapons, disturb life in our territories through acts of terror and has relations with terrorist organisations throughout the world’.
– Director-General of Israel’s Foreign Office, Mr David Kimche, on the Israel Home Service, 19 July, 1984: ‘this terrorist movement called the (PLO) is a security risk, has been active in subversive activities, in undermining regimes, and therefore it has to be dispersed and dismantled and broken as a military and terrorist machine’.
– Israel’s Foreign Minister, Mr Yitzhak Shamir, on 11 August, 1982: ‘the PLO which should be liquidated and removed from the political arena. . .’

Nor were these sentiments confined to the upper echelons. Their effects are revealed in an interview given by an Israeli soldier to Mr Robert Fisk and quoted in The Times of 17 June, 1982:

The Commission heard detailed evidence from Mr Gideon Spiro in Jerusalem, a reserve sergeant in the paratroops, as to the’ dehumanisation of the Palestinians’ in Israeli society and the Hebrew language itself.

The view that the Palestinians, including civilians in Lebanon were deserving of the punishment inflicted upon them was expressed by Prime Minister Menachem Begin in a debate in the Israeli Knesset on 12 August:

Question: However, the enemy must first be accurately identified.
Mr Begin: A soldier does not have such a problem. The problem is whether we go to war or not.
Question: But what happens when we meet a civilian population?
Mr Begin: It is a civilian population known to have provided active aid to the terrorists; that is a historical fact, and it will not help, post facto, to call them beautiful people. . . Why has that population of southern Lebanon suddenly become such a great and just one?
Question: Your claim is that that population should be punished.
Mr Begin: And how! I am using Sabra language: And how! Not even for one moment did I have any doubts of this, that the civilian population deserves punishment. Are you asking me about the population of Naqurah, from where Katyushas were fired at Nahariyya and inside which, with all its terrorists, I saw, from an observation point, how the terrorists sat in a central house with a green roof and were nourished by the population around them. I will continue: The decision to enter southern Lebanon in such power was a political-strategic decision which I approved. . . a decision to use planes and artillery and tanks. I knew what I was doing. When I said. . . bring in tanks as quickly as possible and hit them from far off before the boys reach a face-to-face battle, did I not know what I was doing? I gave that order. Of course that was not the first time that I had given that order. For 30 years, from the war of independence to this day, we have been fighting against a population that lives in villages and in towns and the question that accompanies us endlessly each time from the beginning is whether or not to hit the civilians. . . We have never aimed fire, the IDF, under our orders, against a civilian population.

These were by no means the views of all the soldiers who took part. See the statement by a soldier who took part in the battle for Ain el Hilweh:

The Commission concludes that in its bombardment of targets the IDF did not attempt to distinguish combatants from civilians. Rather, it considered as -legitimate targets ‘terrorists’ associated in whatever capacity with the PLO. This was a clear violation of the laws of war.

Civilian population as ‘incidental’ victims
It is a clear principle of customary international law that, as expressed in Protocol I of 1977, Art. 51(2): ‘The civilian population, as such, as well as individual civilians, shall not be the object of attack.’ At the same time, it is accepted that unavoidable collateral civilian casualties may result from attacks against military targets. It is clear that the presence of combatants among the civilian population jeopardises the safety and security of that population, since combatants are a legitimate target of attack. There are clear international legal obligations on parties to a conflict to avoid subjecting the civilian population to such risks. For example, as expressed in Article 51(7) above. This is aimed at one party intentionally using civilians as a shield for military objects. Additional to this is the principle expressed in Article 58:

‘The Parties to the conflict shall, to the maximum extent feasible:
(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;

(b) avoid locating military objectives within or near densely populated areas;
(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.’
This is an obligation rather less strict than the absolute injunction contained in Article 51(7). Nonetheless, it needs to be noted that a failure by one party to the conflict to observe even the latter principle does not mean the other party is free to harm civilians (Art. 51(8)). Also applicable are the restraints imposed by the principles of proportionality and discrimination (see below).

The Commission has much evidence of the assertion by the IDF that the intermingling of combatants with civilians and the location of military targets within civilian areas made civilian casualties unavoidable, an indirect and collateral result of attacks upon those legitimate military objectives. As stated above, there is no doubt that stores of arms were located in civilian areas – and the Commission condemns this as a violation of customary international law. However, this transgression does not justify the massive attacks upon civilian objects. The temptation to presume that such objects were legitimate targets appears to have been all too easily succumbed to. See e.g., the report of the Defence Correspondent of the Jerusalem Post: ‘The Palestinians and the Lebanese looked the same and shared the same environment. Villages were arsenals and hospitals fortresses. A terrorist hiding in a house with an RPG was as deadly as a Syrian tank, and like a Syrian tank the house had to be destroyed.’

The IDF position was explained in that article as follows:

Bringing about the death of the terrorists would not have been a problem. Israel has huge forces in the area, not to mention the resources of its air force, navy and artillery. . .
However, the indiscriminate destruction of an area of a town was not an act a Jewish army could perpetrate. The terrorists would have to be fought on a house-to-house basis.    .
This was not possible either. Too many lives had been lost already. A compromise had to be found, and by definition this meant both Israeli and civilian casualties.

That the IDF opted for a solution by way of long-range bombardment by artillery and aerial bombing is evident (see the above-quoted Knesset debate). Testimony on this was given to the Commission by an Israeli reserve soldier, Mr Shimshon Roth, in Jerusalem on 8 September, 1982. Mr Roth was in service in a heavy artillery battery in the Eastern district during the war in Lebanon. He testified that he was ordered to shell a populated village. The reason given was that an Israeli unit had been attacked in the vicinity of the village, and that there was a military presence in the village. The village, at a distance of perhaps some 20-30 kilometres, was hit by very heavy shelling. Mr Roth appeared before the Commission because he ‘felt so strongly that it was improper’. When asked why, he said it was ‘very obvious. . . If you fire on somebody who did not do anything to you, it’s improper’. He testified that the orders were that the shelling was in retaliation for the attack on the Israeli unit. Mr Roth was extremely reticent about the details and conscious of the need not to reveal information of a military character. This reinforced the impressiveness of his evidence as to the nature of the bombardment.

The consequences of this policy of bombardment are apparent in the enormous numbers of civilian casualties resulting. The implications in terms of the legal principles of proportionality and discrimination are examined below. Here the Commission takes the view that the ‘dilemma’ facing the IDF is not unique. Recent history is replete with instances of guerrilla warfare – where a technologically advanced and superbly equipped military force is confronted with a resistance or liberation movement some members of which are resident in civilian areas and intermingle with the civilian population. The consequence will be that a number of combatants