International Law at the Vanishing Point

Richard Falk and Aslı Ü. Bâli

Richard Falk, professor emeritus of international law and practice at Princeton University, is a visiting professor at the University of California-Santa Barbara. Aslı Ü. Bâli is the Irving S. Ribicoff Fellow at Yale Law School.

In the summer of 2006, two border incidents were invoked by Israel, with strong US diplomatic support and material assistance, to justify a prolonged military offensive in Gaza and a crushing “shock and awe” assault on Lebanon. The main international response, effectively orchestrated by Washington, was built around the bland assertion that Israel has the “right to defend itself.”

Of course, it does. But in the summer the unasked questions were “how,” “with what limits” and “by what means”? It is the role of international law to provide answers to such questions, sometimes not very precise answers, but at least guidelines, which commanders and sovereign governments have considerable latitude to interpret with reference to considerations of “military necessity.” What this means in practice is a rather broad margin of discretion in the international law of war that makes unlawful only clearly outrageous and unreasonable behavior, whether by states or by non-state actors engaged in armed struggle.

In the case of Israel’s summertime conflicts on its southern and northern borders, the international community, again led by Washington, swiftly condemned the actions of Israel’s “extremist” adversaries, and acquiesced in the tightening of existing sanctions upon them by legal and other means. Yet although Israel’s actions in both Gaza and Lebanon were plainly unlawful by international legal standards, there was less condemnation and no material sanction imposed upon Israel, least of all by the chief arbiter of international peace and security, the UN Security Council. The imbalance in the international response has gravely undermined the credibility and, ultimately, the enforceability of international legal norms, which are only norms to the degree that they are enforced without fear or favor.

Lawful Limits of Self-Defense

On June 25, 2006, fighters belonging to three Palestinian factions, including Hamas, tunneled under the fence separating the Gaza Strip from Israel at the Kerem Shalom border crossing and attacked the army post on the Israeli side. The Palestinians killed two soldiers and snatched a third, whom they spirited back into Gaza, where he presumably remains captive. In an announced attempt to retrieve the soldier, Israel has bombed bridges and a power plant in Gaza, stepped up artillery and aerial bombardment of sites believed to house the ineffective rocketeers of Hamas, launched multiple tank incursions into Gaza, arrested tens of Hamas parliamentarians without charge and locked down the sole point of transit for people and goods between Gaza and the outside world. According to the UN, over 300 Palestinians have been killed in the ongoing Israeli offensive.

Global media attention shifted northward on July 12, when Hizballah militants crossed into undisputed Israeli territory, killing three Israeli soldiers and abducting two others, with five additional soldiers being killed on Lebanese territory in the course of an attempted rescue operation. In the ensuing month-long war, Israel bombed bridges, roads, power plants and other civilian infrastructure in Lebanon, and conducted multiple strikes on Beirut neighborhoods and southern villages it dubbed “Hizballah strongholds.” Israel also imposed a comprehensive land, sea and air blockade upon Lebanon. Upwards of 1,000 Lebanese were killed, and nearly one million displaced, in the course of the bombardment, while 39 Israeli civilians were killed, and hundreds of thousands compelled to flee their homes, by Hizballah’s retaliatory rocket fire. The UN Security Council brokered a “cessation of hostilities” between Israel and Hizballah in mid-August, but not between Israel and the fighters in Gaza, where a low-level war continues to rage.

Against the background of these events, a nasty mind game emerged: Israel’s right to defend itself was improperly merged with Israel’s supposed right to act in “self-defense” as generally understood in international law. The trouble here was that the UN Charter and international law have restricted valid claims of self-defense to situations where a major “armed attack” has occurred, precisely to avoid authorizing wars or excessive force as legal responses to border incidents. Indeed, the World Court found US claims of collective self-defense unlawful in the important 1986 case of Nicaragua v. the United States, on the grounds that Nicaraguan assistance to the armed insurgency in El Salvador fell short of an “armed attack.” Understood in this context, Israel’s claimed right to large-scale attacks on Gaza and Lebanon in response to border skirmishes involving the capture of three soldiers is certainly invalid under the international law of self-defense.

But there is a second layer of concern. It is assumed in diplomatic discourse and the media that once Israel invokes its right of self-defense, then anything goes. This negates the role of the law of war and international humanitarian law, the function of which is to set limits and provide guidelines for belligerents in wartime situations. That is, even if Israel had a valid basis for declaring war on Lebanon, its conduct of that war would have to be constrained by the requirements of the laws of war.

More than international law is at stake here. To validate the Israeli responses to the Palestinian and Hizballah raids is to defy the rule of reason, which underpins world order and international law in crucial respects. It takes only a modest imagination to envision regions in flames if incidents of this, or even greater magnitude, were to be seized upon by the targeted country as occasions for general war.

If, then, Israel has a legal right to defend itself, but not a right of self-defense to justify acts of war, what was it entitled to do? A truly satisfactory answer to this question requires a consideration of the context, including the degree to which the Palestinian and Hizballah raids were unprovoked rather than being part of a prolonged series of border incidents. But leaving aside context, Israel’s right to defend itself clearly encompassed steps, including border crossing, to catch and punish the perpetrators, and quite possibly to destroy their immediate base of operations. As Israel exceeded these measures within a day in both Gaza and Lebanon, the actual Israeli responses to the raids were grossly excessive, even if Israel is given the benefit of every doubt, by excluding context.

Mind games also emerged surrounding the proper body of applicable law. Israel has always maintained that Articles 47-78 of the Fourth Geneva Convention, laying out the duties of an occupying power, do not apply to its actions in the territories taken in the 1967 war. Though Israel is alone in this interpretation, it considers its legal argument greatly strengthened, with regard to Gaza, following its summer 2005 withdrawal of settlers and soldiers from the strip. Further, it is Israel’s claim that in both Gaza and Lebanon its enemy is not a state, but a non-state actor who is not a party to the four Geneva Conventions that constitute the body of international humanitarian law (IHL).

The First Geneva Protocol on the Protection of Victims of International Armed Conflict (1977) supplements IHL by extending legal coverage to conflicts between a state and a non-state actor. Israel has not signed this widely ratified treaty, and so is not directly bound by it. But here also most of these obligations are now regarded as customary international law, which, like IHL itself, binds a state whether or not it has accepted a particular treaty. The 1977 protocol also binds non-state entities such as Hamas and Hizballah whenever they become participants in international conflicts. Therefore, if the conflicts are understood as being between Israel and Hamas on one front, and Israel and Hizballah on the other, then both sides in both settings are bound at least by IHL recognized as customary.

Israel also insisted that the failure of Lebanon, as distinct from Hizballah, to deploy its army against the Israeli attack confirmed its claim that the Geneva Conventions were not applicable. This line of argument is contrary to international law as embodied in Common Article 3 of these treaties, which declares that the conventions shall apply in “any armed conflict…even if the state of war is not recognized by one of them,” and that parties to the conventions remain bound “even if the…occupation meets with no armed resistance.”

The behavior of the various parties is all subject to customary international law of war (CILW), which has evolved over the centuries from its origins in the just war tradition, and has long been a recognized part of international law alongside treaties and conventions. There are four principles of CILW: the principle of proportionality, by which a legally valid military response must be proportional to the provoking occasion; the principle of necessity, by which a legally valid use of force must be necessary to achieve a lawful goal; the principle of discrimination, by which a legally valid use of force must discriminate between military and civilian targets; and the principle of humanity, by which a legally valid use of force must not rely on tactics that are cruel or widely perceived as inhumane. Obviously, these principles offer only very general guidelines that must be adjudged in specific circumstances, and whose proper application depends on a judicious application of the rule of reason.

The Gaza Offensive

Since its 2005 “disengagement” from Gaza, Israel has retained complete border control, including rigid regulation of entry and exit from the strip, and control over Gazan airspace and offshore waters. It has also mounted frequent armed incursions into Gaza and launched air strikes at will. Given these realities, it would seem appropriate to consider Gaza as still subject to Israeli occupation until a withdrawal occurs that is fully respectful of Gaza’s autonomy.

This conclusion bears upon the legal treatment of the border incident that Israel relied upon to launch its sustained Gaza offensive. The narrow legal issue is whether the Kerem Shalom raid was an act of terrorism or not. There is a strong basis in international law for affirming a Palestinian right of resistance, given the prolonged occupation by Israel, the refusal by Israel to respect UN resolutions calling for withdrawal to the 1967 borders, and Israel’s persistent violation of IHL inflicting great hardship on the Palestinians subject to the occupation.[1] Such a right of resistance does not accord impunity to Palestinian militants who use violence directly against Israeli civilian targets, of course. Such methods of resistance are criminal violations of the law of war. Since the targets on June 28 were military personnel, this incident does not qualify as an act of terrorism or a violation of the law of war.

At the same time, it is a violation of IHL and CILW to use the abducted Israeli soldier as a “bargaining chip,” held illegally as a “hostage” for the sake of negotiating a prisoner release, especially if combined with a threat to his life. The severity of this violation by the Palestinian militant groups is somewhat diminished by their reiterated willingness to negotiate his release, the refusal of Israel to engage in diplomatic discussion with elected Palestinian leaders and the fact that Israel has itself frequently abducted Palestinians whom it continues to detain without charge.

The big legal issue arises from the disproportion, excessiveness and indiscriminate character of the Gaza offensive. Even if the Israeli interpretation of the abduction incident is fully accepted, there is scant legal justification for the Israeli response, either from the perspective of Common Article 3 of the Geneva Conventions requiring respect for the sanctity of civilian life or by the wider standards of CILW. There are two relevant norms set forth in the Hague Conventions that provide a basic standard against which to judge belligerents. First, Article 22 of Hague Convention IV on Land Warfare states that “the right of belligerents to adopt means of injuring the enemy is not unlimited.” This norm incorporates a measure of proportionality between the scale of provocation and response that was clearly absent from Israeli actions. Second, the so-called Martens clause in the preamble of the Hague Convention declares that “[u]ntil a more complete code of the laws of war has been issued…the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.” On this basis, responding to the following questions provides a legal assessment until, if ever, a duly constituted tribunal assesses the situation: Was the Gaza offensive a reasonable response, given the surrounding circumstances? Did its particular uses of force violate the limits imposed by IHL and CILW? The logical assessment is that it was unreasonable with respect to scale, scope, duration and impact on the civilian population of Gaza, as well as with respect to targets and methods.

Such an assessment is reinforced by several other considerations. Treating the Kerem Shalom incident as “the cause” of Israel’s offensive ignores prior and frequent Israeli provocations in the form of unlawful uses of force in Gaza. For instance, on June 9, 2006, Israel fired artillery shells that struck Palestinian civilians on the beach, killing eight and wounding 32; on June 13, Israeli aircraft fired missiles at an ordinary van, in a supposed targeted assassination of a Hamas leader, killing nine Palestinian civilians; on June 20, in another assassination attempt that misfired, three Palestinian children were killed and 15 wounded. Even aside from the civilian casualties, these Israeli tactics are violations of Article 10 of the Universal Declaration of Human Rights that categorically prohibits extrajudicial executions and punishments. Moreover, with the Gazan population already beleaguered by denial of humanitarian foreign assistance for several months, the offensive is most convincingly regarded as an extreme form of collective punishment endangering civilian health and life. Article 33 of Geneva IV categorically prohibits collective punishments inflicted on civilians under occupation. The conclusion that Israel knowingly engaged in collective punishment is strongly reinforced by the deliberate bombardment of Gaza’s only power plant, which provided an estimated 60 percent of Gaza’s electricity and was crucial for the maintenance of the water purification system. Surely, this strike was a flagrantly unlawful act of war that could also be considered a crime against humanity.

The Attack on Lebanon

Unlike in the Palestinian case, Hizballah’s raid was not immediately preceded by Israeli provocations, although Israel has repeatedly engaged in military operations inside Lebanon in alleged retaliation for Hizballah actions and hundreds of Israeli violations of Lebanese sovereignty have been documented by the UN Forces in Lebanon (UNIFIL) since the Israeli withdrawal from southern Lebanon in 2000. Under the terms of Security Council Resolution 1559 (2004), the Lebanese government was under an international obligation to disarm militias operating within its territory—which it had failed to do. As the hostilities in Lebanon confirmed, Hizballah possessed an extensive stockpile of weaponry as well as the skill needed to inflict considerable harm on Israeli civilian society and military capabilities. So, the security threat posed to Israel was more substantial and more closely linked to the Hizballah initiating attack than in Gaza. With these conditions in mind, Israel could present a strong case under international law for a significant cross-border response designed to redress the July 12 raid and address the longer-term Hizballah threat.

And yet, the magnitude and scope of the Israeli response constituted clear violations of principles of proportionality and discrimination, and raised major concerns about the principle of humanity. Israel carried out heavy bombings and shelling to hobble the overall infrastructure of Lebanon, inflicted indiscriminate damage on villages and southern residential sections of Beirut where the Shi‘i population was concentrated, and imposed a massive air, land and sea blockade on the entire country. To claim, as Israel did, that such targets were linked to the border incident because Hizballah had to be stopped from transporting the two abducted Israeli soldiers northward or outside Lebanon seems fatuous given the scale of destruction and the level of civilian suffering.

There were also credible reports of deliberate targeting of civilians, including people warned to leave villages who were later attacked from the air while fleeing in northbound convoys. The Israeli military’s chief of staff, Gen. Dan Halutz, reportedly ordered ten multi-story buildings in Beirut bombed for every rocket fired on Haifa.[2] This reported (and officially denied) order is a vengeful tactic that qualifies as terrorism, a collective punishment of intentionally disproportional character that deliberately targets civilians in an urban setting. Finally, Israel used weapons—including cluster bombs and phosphorus bombs—that inflict cruel injuries, raising serious questions about legality under the principle of humanity. According to the head of an Israeli rocket unit, Israeli forces fired projectiles containing over 1.2 million cluster bomblets at southern Lebanon. “What we did was insane and monstrous,” he said. “We covered entire towns in cluster bombs.”[3] UN officials believe that 90 percent of the bomblets fell in the last 72 hours before the war ended, meaning that many were fired in the two days between the passage of the UN ceasefire resolution and its implementation.[4] Possibly hundreds of thousands of the bomblets failed to detonate on impact, and lie unexploded in Lebanon.

Israel claimed that the government and the people of Lebanon were legally responsible for the Hizballah attacks because, without their militia having been disarmed in accordance with Resolution 1559, Hizballah members hold seats in the Lebanese parliament and two cabinet positions. The Lebanese government clearly lacked the capacity to disarm Hizballah, and the departure of Syrian forces in 2005 removed what had been an effective control over its military operations. It is a notable fact that, after Israeli soldiers left Lebanon in 2000, not a single Israeli civilian was killed by Hizballah rockets, and only one by indirect Hizballah fire (an anti-aircraft round loosed at an Israeli jet in Lebanese airspace), until the summer 2006 hostilities commenced.[5] Beyond this, there is evidence that a major military attack on Lebanon was long in the works, and that the July 12 incident provided a pretext.[6] In any event, the World Court in the Nicaragua case set the bar very high in attributing to a state and its government responsibility for an armed movement, even when it has been financed, trained and otherwise supported by the accused state, which is manifestly not the case with regard to Hizballah and Lebanon. From this perspective, the Israeli insistence on attributing accountability to Lebanon and its people seems completely without legal foundation, especially in view of the disproportionate response to the provoking July 12 incident.

Some analysts have suggested that among Israel’s objectives in attacking Lebanon was the completion of the “unfinished business” from the May 2000 withdrawal from Lebanon, namely the weakening of Hizballah on the domestic Lebanese political scene.[7] The goal of altering the domestic political balance of a sovereign country as a corollary to a military engagement is, in effect, a policy of regime change by another name. To the extent that such contentions concerning Israeli objectives are correct, they would support the claim that the Israeli attacks on Lebanon were an aggressive war in violation of Article 2(4) of the UN Charter. In addition, Israel’s wartime tactics violated fundamental rules of IHL, as well as infringing severely on CILW.

Resolution 1701

After a month of Israeli aerial bombardment and shelling of Lebanon, and the introduction of Israeli ground forces on Lebanese soil, there appeared to be little prospect for Israel achieving its goals, namely the military defeat of Hizballah and the weakening of the party’s political position within Lebanon. Contrary to repeated Israeli assertions, there was little evidence that Hizballah had either depleted its weapons stock or been significantly hampered in its operations. Further, the outrage provoked by the Israeli assault among the Lebanese civilian population had actually strengthened Hizballah’s domestic stature and support. Having failed to secure its objectives through “shock and awe,” Israel was left with two options: a protracted military campaign in Lebanon, for which the Israeli public appeared to have little appetite, particularly in light of Hizballah’s retaliatory rocket attacks on northern Israel, or a negotiated ceasefire. Accordingly, Israel and the United States were forced to turn to the UN to generate a diplomatic exit strategy. The Israeli objectives were, however, unchanged. The idea was now to accomplish through diplomacy and US leverage at the UN what Israel had been unable to accomplish with the gun.

An initial draft ceasefire resolution was presented to the Security Council on August 5, following negotiations between the US, acting as Israel’s proxy, and France, apparently acting on behalf of the Lebanese.[8] The key features of the draft were that it did not call for an immediate withdrawal of Israeli troops from Lebanese territory, that it demanded the cessation of all attacks by Hizballah but permitted Israel to continue military operations deemed to be “defensive,” and that it deferred to a second resolution the authorization to deploy, under Chapter VII of the UN Charter, an international force on Lebanese territory to implement the ceasefire. By August 6, the Lebanese government had rejected the resolution as a capitulation document. By contrast, the Israelis indicated that they were very pleased with the terms of the resolution. In what was seen as a clear attempt to position the Lebanese government as the rejectionist party, Secretary of State Condoleezza Rice commented upon the release of the draft that reactions would demonstrate “who is for peace and who isn’t.” Following strong protest from the Arab League, the French withdrew their support for the maximalist Israeli position contained in the original draft and negotiations resumed. The modifications to the resolution over the next week were, however, more a reflection of Israel’s ongoing failure to achieve military victory than any diplomatic dynamism.

The process that ultimately yielded UN Security Council Resolution 1701, passed on August 11, reflects the failure of the international legal order. First, the 34-day delay in calling for an immediate ceasefire, despite pleas from the Lebanese government, represents the Security Council’s complicity in permitting an aggressor to wage a military campaign unfettered by the obligations of the UN Charter and the prohibition on aggressive war. Indeed, even after the resolution was passed, Israel was afforded another 48 hours to accomplish further military objectives in Lebanon, enabling it to greatly increase its ground forces in Lebanon prior to putting the ceasefire into effect. This 48-hour window was contrary to Security Council practice, whereby resolutions come into effect immediately unless a specific timeframe is contained in the text of the resolution. No such timeframe is mentioned, suggesting that the 48-hour window was simply a final effort by the US to provide political cover for Israel to attempt to seize some vestige of military victory from the jaws of its defeat. Israel was not censured in any way for using the runup to the ceasefire to further escalate its military presence in Lebanon. In this sense, the UN proved not only unable to restrain Security Council permanent members and their allies from violating the Charter, but actually seemed to collaborate with the violations. The circumstances of the passage of Resolution 1701 reflect the reality, especially acute in the post-September 11 era, that the UN is all too frequently a geopolitical tool for powerful states rather than an instrument for the enforcement of international law.

Beyond the process by which Resolution 1701 was negotiated, the terms of the resolution itself serve to undermine the UN’s own authority. The very one-sidedness of the resolution is detrimental to the foundational principle of the UN Charter, which prohibits the waging of aggressive war. Resolution 1701 favors the country that blew up a border incident into an all-out war and attacked civilian targets in Lebanon in flagrant violation of the laws of war. The qualitatively discriminatory nature of the resolution, particularly when coupled with the failure to criticize Israel’s tactics, appears to repudiate the central tenet of the international security system the UN was established to uphold.

Imbalances

Resolution 1701 adopts the Israeli narrative by singling out Hizballah as having initiated hostilities through a border attack on a single Israeli military patrol, while failing to criticize the disproportionate aerial bombardment and artillery campaign directed at all of Lebanon by the Israeli military. By identifying Hizballah as responsible for the initiation of the conflict, the resolution, which designates the conflict as a “threat to international peace and security,” suggests that the Chapter VII authorization of UNIFIL to assist the Lebanese army in implementing the terms of the ceasefire might include a mandate to deal forcibly with Hizballah as the source of the threat to international security. This formulation not only fails to censure the party principally responsible for escalating the conflict, it actually rewards Israeli use of force by suggesting that the Israeli response may have been within the bounds of legitimate military action. Whereas Resolution 1559 made reference to the disarming and disbanding of militias operating in Lebanon, the relevant provision was not governed by the Council’s Chapter VII powers and could not be interpreted as permitting the use of force to accomplish such disarmament. By contrast, Resolution 1701 authorizes a peace enforcement operation that is, by its nature, an exercise of the Council’s Chapter VII powers. Despite subsequent indications by UN Secretary-General Kofi Annan that the resolution does not place the disarmament of Hizballah under a UN mandate,[9] the reference to disarmament in a resolution which itself is at least partially under Chapter VII authority provides fresh ammunition for the Israeli argument that intervention to disarm Hizballah might be authorized. Further, by failing to acknowledge the distinction between Israel’s “right to defend itself” against border raids and the Israeli escalation of the July 12 skirmish into an all-out assault on Lebanon, the resolution comes dangerously close to turning an invocation of the right of self-defense into a license to use force aggressively and indiscriminately.

Another respect in which the resolution favors Israel is by prohibiting all attacks by Hizballah while requiring Israel only to stop “offensive military operations.” A holdover from the previous draft, this imbalance permitted the Israelis to not only leave their troops on Lebanese soil despite the ceasefire but to also continue engaging in military activities in Lebanon, such as the “commando operation” conducted in the Baalbek valley a week after the ceasefire went into effect. Annan has identified this raid as a violation of the cessation of hostilities, along with the numerous airspace violations by Israeli military aircraft that have been documented by UNIFIL. The Israeli response, however, has been that these actions are in compliance with Resolution 1701 because Israel deems them to be “defensive” operations. By failing to provide a definition of “offensive military operations,” the resolution invites this kind of expedient self-justification.

Indeed, Resolution 1701 further favors the Israelis by imposing a disarmament obligation on Hizballah with no restriction of any kind on Israeli military policies. Arguably, with its Chapter VII authority and inclusion of an obligation to disarm Hizballah, this resolution is designed to be an implementation mechanism for Resolution 1559. The Lebanese domestic context that led to the passage of 1559 in 2004 has changed dramatically since then, not least as a result of Israel’s war on Lebanon. Any attempt to forcibly disarm Hizballah today using the Lebanese army would risk a civil war by driving a wedge between the Lebanese government and the Shi‘i community, which represents over 40 percent of the Lebanese population. Attempts to disarm Hizballah are doomed unless the party itself, together with its supporters, consents. But in the wake of a war that demonstrated that an armed Hizballah may be the only force in Lebanon capable of deterring Israeli aggression, such consent is hardly likely. Further, to the extent that it could be secured, it would be through a process of national dialogue and not by deploying the Lebanese army or an international force to complete Israel’s mission.

These considerations point toward another significant failure of Resolution 1701, namely the ill-defined mandate given to the more “robust” UNIFIL authorized by the resolution. The new authorization for UNIFIL appears to have been issued under the Security Council’s Chapter VII authority, and as such may require the force to become involved in the disarming of Hizballah, designated by the resolution as the responsible party for the “threat to international peace and security” that arose from the war. The ambiguous mandate and the possibility that the force would be drawn into conflict with Hizballah or fired upon by Israel made it very difficult to persuade countries to participate in the mission. The French, who were initially expected to lead the force, were reluctant to commit a large contingent, and Israel vetoed the participation of contingents drawn from countries with which it does not have diplomatic relations, such as Indonesia, Malaysia and Bangladesh, all traditionally strong contributors to UN peacekeeping operations. The Israeli conditions on peacekeepers, coupled with the European desire for clear ground rules, led to significant delays in the deployment of an international force.

The corollary to the failure to deploy a strengthened UNIFIL force rapidly was the Israeli refusal, until September, to lift the embargo it imposed on Lebanon, prolonging the war’s burdens on Lebanon’s civilian population. Indeed, arguably, the ceasefire was mainly designed to spare Israeli civilians the costs of war. Since the only threat Israeli civilians faced during the war was Hizballah rocket attacks, the danger to them has been eliminated. While the implementation of the ceasefire brought aerial attacks by all sides to an end, the presence of Israeli troops on Lebanese soil left Lebanese civilians vulnerable to shelling from ground forces, particularly since Israel interprets the resolution as permitting “commando operations” in residential areas. The unexploded munitions scattered across the southern Lebanese landscape also imperil civilians there.

Indeed, Resolution 1701 did not address the use of prohibited weapons by Israel, or the use of certain permitted weapons in unlawful ways. Human Rights Watch and other human rights organizations have been able to document the use by Israel of white phosphorus, not as an illumination device, but as an offensive chemical weapon. Israel has subsequently conceded that it deliberately used phosphorus shells offensively during its 2006 attack on Lebanon.[10] The Israeli use of cluster munitions in densely populated residential areas is another example of a prohibited usage of a weapon in violation of the laws of war. Indeed, the use of so many cluster bombs was equivalent to mining those civilian areas, because so many munitions normally do not explode on impact. As of September 28, Human Rights Watch had documented 18 deaths and 108 injuries from unexploded munitions in Lebanon after the cessation of hostilities. UN humanitarian chief Jan Egeland described the Israeli use of cluster munitions in Lebanon as “shocking and completely immoral.” Despite these post-conflict denunciations of Israeli use of cluster munitions, the deafening silence of the Security Council about Israeli attacks on civilian infrastructure and residential areas in violation of the laws of war and using prohibited weapons remains a deep indictment of the organization. Whether subsequent efforts, such as Amnesty International’s call for a comprehensive and independent UN investigation of possible war crimes committed during the conflict, will correct this failure is yet to be seen.[11]

The remaining imbalances embedded in Resolution 1701 relate to the treatment of prisoners held on both sides and the failure to address the root causes of the conflict. First, the resolution demands the unconditional release of two Israeli soldiers held by Hizballah but only “encourages efforts at settling the issue of Lebanese prisoners detained in Israel.” These prisoners include four whose release Hizballah negotiated in 2004 only to have the Israelis renege at the last minute, and the numerous Lebanese who were captured by the Israelis during the 2006 war. While no precise number is yet available for the latter category, at least a half dozen were abducted during an Israeli commando raid on a hospital in Baalbek on August 1. Those seized included the unfortunately named Lebanese grocer, Hassan Dib Nasrallah, and his son, Bilal, who were quietly released by Israel after their interrogation revealed that the resemblance of the grocer’s name to that of the Hizballah leader was purely coincidental. The others abducted in that raid have joined the ranks of Lebanese detainees held in Israel. (The Khiam Rehabilitation Center for the Victims of Torture, a Lebanese NGO, has a list of another two dozen Lebanese who “disappeared” during the 1982–2000 Israeli occupation of southern Lebanon and may also still be in Israeli custody.) The failure to impose symmetrical obligations with respect to prisoners and the failure to note that the Israelis being held are soldiers, while Israel abducted Lebanese civilians prior to and during the war, make a mockery of the Geneva Conventions’ rules of detention. Taken together, the failures of Resolution 1701 reflect the UN’s inability to protect a state that is the victim of aggressive war waged by the US or its close allies. In effect, Resolution 1701 demonstrates that where the permanent members and their allies are concerned, the Security Council will collaborate with the aggressor in the post-conflict situation to ratify the effects of the aggression.

But perhaps the most glaring failure is the absence of any consideration of the root causes of the conflict between Israel and its neighbors as part of any meaningful or tenable ceasefire. By failing to address the ongoing and related Israeli aggression in Gaza, the absence of a framework for a comprehensive peace settlement between Israel and Palestinians, and the continuing occupation of Syrian Golan Heights (including the Shebaa Farms), the ceasefire resolution ensured that it could not be the basis for anything more than a stalemate.

New Avenues

The implications of Resolution 1701, coupled with the course of hostilities between Israel, Hizballah and armed Palestinian groups in the summer of 2006, suggest severe consequences not only for the civilian populations caught up in the conflicts but also for the enforceability of the international laws of war. In addition to the obvious need for a cessation of Israel’s attacks in Gaza, further measures are required to address the violations of the laws of war that took place in these conflicts. The obvious inability of the Security Council to take effective steps to uphold the most basic norms of international law must be addressed with creative international proposals to supplement the Council when the arbiters of geopolitics undermine its authority to act.

Rather than retreating cynically from the limits imposed on the conduct of war by international law, concerned parties should look for new avenues for pursuing the implementation of international humanitarian law and the international customary laws of war. Three potential avenues are readily identifiable. First, the parties to the Fourth Geneva Convention should be convened to fulfill their obligation under Article 1 to protect the civilian populations of Lebanon and Gaza, and explore the grounds under Article 147 for the criminal prosecution of grave breaches of the convention. Second, a detailed request should be submitted to the prosecutor’s office of the International Criminal Court to investigate all credible allegations of violations of the laws of war and commission of crimes against humanity during the Lebanon war. Indeed, this call was forcefully issued by the UN chief war crimes prosecutor for the former Yugoslavia, Carla del Ponte, who complained of international double standards in conflicts where “according to credible reports, serious violations of international humanitarian law were committed, for instance during the recent Israel-Lebanon conflict, but no independent criminal investigation is taking place.”[12] Finally, an emergency session of the UN General Assembly should be called to explore these allegations and establish an international commission of eminent persons to assess the legality of Israel’s response to border incidents, possibly including reference to the World Court for a relevant advisory opinion on the applicability of international customary laws of war to the Gaza offensive and the war in Lebanon.

Endnotes

[1] See Richard Falk and Burns H. Weston, “The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada,” Harvard International Law Journal 32/1 (1991); and Richard Falk, “International Law and the al-Aqsa Intifada,” Middle East Report 217 (Winter 2000).

[2] Jerusalem Post, July 24, 2006.

[3] Ha’aretz, September 12, 2006. Human Rights Watch has documented two instances where Hizballah fired cluster munitions, contained in Chinese-made rockets, at the Israeli town of Maghar.

[4] Washington Post, September 26, 2006.

[5] Augustus Richard Norton, “The Peacekeeping Challenge in Lebanon,” MIT Electronic Journal of Middle East Studies 6 (Summer 2006), p. 76.

[6] San Francisco Chronicle, July 21, 2006.

[7] Patrick Seale, “Why Is Israel Destroying Lebanon?” al-Hayat, July 21, 2006. [Arabic]

[8] The draft was printed in the New York Times, August 5, 2006.

[9] Annan stated explicitly that “disarming Hizballah is not the direct mandate of the UN” in an interview on Israel’s Channel 2 television station. Jerusalem Post, August 16, 2006.

[10] Ha’aretz, October 22, 2006.

[11] Amnesty International, Deliberate Destruction or “Collateral Damage”? Israeli Attacks on Civilian Infrastructure (London, August 23, 2006).

[12] Agence France Presse, October 6, 2006.