ISRAEL, LEBANON AND HIZBULLAH: A JURISPRUDENTIAL ASSESSMENT

An informed appraisal by:

Louis Rene Beres

Professor of International Law

Department of Political Science

Purdue University

West Lafayette IN 47907

Tel (317) 494-4189

Fax (317) 494-0833

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For more than ten years, Hizbullah guerrillas have been firing Katyusha rockets at northern Israel from bases in southern Lebanon. On April 18, 1996, an Israeli self-defense action struck a United Nations-protected site housing Lebanese civilians, killing almost one-hundred persons. What follows is a brief but informed attempt to assess this tragic event from the standpoint of pertinent international law.

Israel launched operation "Grapes of Wrath" in early April 1996 in response to persistent Katyusha bombardments from southern Lebanon. These terrorist  bombardments, unleashed by Hizbullah fighters, had made life in many northern Israeli towns and cities almost unbearable. Indeed, in the wake of rocket attacks fired deliberately at Israeli civilians during the Grapes of Wrath operation, many inhabitants of Kiryat Shmona were forced to evacuate altogether.

The many deaths at Kfar Kana in the midst of an Israeli air and artillery assault on Hizbullah guerrillas who had been firing Katyushas into northern Israel "provoked an international outcry and feverish diplomatic efforts that led nine days later to a halt in the fighting." The Israeli army account states that the incident began when an IDF (Israel Defence Force) reconnaissance force spotting Hizbullah rocket launchers came under rocket and mortar fire, an attack that landed as close as 20 yards from the Israeli soldiers. Both the mortars and rockets were fired from areas near the United Nations base. A reconnaissance drone, helipcopter gunships and warplanes were sent to the area to identify the origin of fire and to silence the enemy attack, but they could not operate because of low clouds.

The IDF resorted to artillery; two batteries fired more than 30 shells within minutes after Israeli radar identified the sources of Hizbullah fire. Israeli gunners were under strict orders not to fire any closer than 350 yards from U.N. positions, but two critical mapping errors, the IDF alleges, caused them to overshoot and hit the U.N. base. The U.N. investigation of the incident rejected Israel's version of the events, concluding instead that Israel's shelling of civilian refugees was deliberate.

As stated by Israel's acting ambassador to the United Nations, the suggestion that Israeli shelling of the camp had been deliberate was "absurd." The U.N. report, compiled by a Dutch artillery officer, acknowledged that Hizbullah had fired two or three rockets from a location 350 yards southwest of the U.N. compound just prior to the Israeli shelling. Moreover, between 5 and 8 mortar rounds were fired from a nearby location only minutes before the Israeli response. Deputy Head of the Israeli delegation at the United Nations, Brig. Gen. Don Harell remarked: "The fire was meant to save one of our forces that was under very heavy attack from mortar and katyusha force originating from a location very near to the U.N. compound. It was defensive in nature....We asked UNIFIL just two days before, and they didn't give us any details about the refugees. Even after the shooting on the 20th of the month, two days after the sad incident, we asked UNIFIL about the location of refugees, and they responded: `It's not our policy to say; it's none of your business.'"

For the Israelis, no possible motive could have generated a deliberate attack upon civilians in a U.N. base. Although the U.N. insists that Israel had a drone aircraft directly above the base at the time of the attack, Israel insists that pictures of this plane were taken after the attack. IDF Chief of Staff Lt. Gen. Amnon Lipkin-Shahak inquired why, indeed, the U.N. force had permitted Hizbullah terrorists to operate so closely to the refugee center. Maj. Gen. Matan Vilnai, the IDF Deputy Chief of Staff, stated: "This was contrary to our intention. Had we fired deliberately at the camp, it would have been destroyed." Former IDF Chief of Staff and now Foreign Minister Ehud Barak also rejected the U.N. report, denying emphatically that Israel would ever have intentionally attacked the civilian refugee center. The OC (Officer Commanding) IDF Artillery Corps, who flew to the United States to meet with U.N. officials, stated that much of the report that he had submitted to U.N. officials had simply been ignored. Israeli Prime Minister Shimon Peres squarely placed the blame for the civilian deaths on both the Hizbullah terrorists and on U.N. carelessness.

There is every reason to believe the Israeli account of the Kana incident that put the blame on mapping errors. The location of the U.N. base was plotted about 100 yards farther than its actual site, and measurements taken from a point designating the camp failed to take into account the area taken up by the base itself - an area that covered five acres. The Hizbullah mortar thought by the IDF to be about 350 yards from the U.N. base was, in actuality, only 180 yards away. The base was hit by three to six shells that landed inside the camp, and perhaps by a similar number of shells of a type that explodes above the ground.

Responsibility for this tragic Israeli artillery bombardment of UN protected civilian refugees in Lebanon lies preeminently with Hizbullah and its Islamic state mentors, Syria and Iran, as well as with Lebanon. To an extent, some responsibility must also be borne by the United Nations, for failing to ensure that Hizbullah not be allowed to fire Katyushas from a site some 350 meters from the UN Headquarters in Kfar Kana. Although it is certainly true that the Laws of War are intended, inter alia, to protect all noncombatants from the sort of Israeli shelling that killed and wounded so many innocents on April 18, these Laws also make it perfectly clear that responsibility for such actions must ultimately rest with the side that engages in "perfidy."

Deception can be an essential and acceptable virtue in warfare, but there is a meaningful distinction between deception or ruses (stratagems or Kriegslist) and perfidy. The Hague Regulations in the Laws of War allow "ruses" but disallow treachery or perfidy. The prohibition of perfidy is reaffirmed in Protocol I of 1977 and it is widely and authoritatively understood that these rules are binding on the basis of general and customary international law.

What, exactly, are the differences between permissible ruses and perfidy? The former include such practices as the use of camouflage, decoys, mock operations and ambush. False signals, too, are allowed; as an example, the jamming of communications. Perfidy, on the other hand, includes such treacherous practices as improper use of the white flag, feigned surrender or pretending to have civilian status. It also constitutes perfidy to shield military targets from attack by placing or moving them into densely populated areas or to purposely move civilians near military targets. Indeed, it is generally agreed that such treachery represents an especially serious violation of the Laws of War. The legal effect of such perfidy - the practice now engaged in by Hizbullah in Lebanon - is as follows: Exemption (in this case, for the State of Israel) from the normally operative rules on targets and on humanitarian rules generally. Even if the Hizbullah had not intentionally engaged in treachery, any link between protected persons and military activities would have been legal cause for permissible Israeli disruption of the protective regime.

The recent harms to civilian refugees in Lebanon caused by Israeli shelling are tragic and regrettable, but the legal responsibility for the tragedy lies with those whose perfidious conduct brought about such shelling. In this connection, not only the Hizbullah fighters themselves, but also the governments of Syria and Iran - which support and sustain these fighters - are substantially at fault. So, too, is the government of Lebanon responsible, not only because it failed to prevent Hizbullah perfidy, but also and more fundamentally because it has allowed its territory, for many long years, to be used as a base of hostile operations against the neighboring State of Israel. Pertinent prohibitions of Lebanon's conduct can be found at the UN General Assembly's 1970 Declaration on Friendly Relations (offering an authoritative elucidation of Article 2(4) of the United Nations Charter) and at the UN's 1974 General Assembly Definition of Aggression.

Israel has the peremptory right of self-defense against terrorist attacks from Lebanon, both the post-attack right codified at Article 51 of the U.N. Charter and the customary right of anticipatory self-defense. Regarding the latter, this right has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this incident, the serious threat of armed attack has generally justified militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then United States Secretary of State Daniel Webster outlined a framework for self-defense that did not require an actual attack. Here the framework permitted military response to a threat so long as the danger posed was "instant, overwhelming, leaving no choice of means and no moment for deliberation."

The classical writers also support the principle of anticipatory self-defense. According to Hugo Grotius:

We may also recall Pufendorf's argument in ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW:

Israel has the right and the obligation under international law to protect its population from criminal acts of aggression and terrorism. Should it decide to capitulate to perfidy along its northern borders, the Jewish State would surrender this essential right and undermine this peremptory obligation. The net effect of such capitulation would be to make victors of aggressor states (Syria, Iran and Lebanon) and their terrorist proxies (Hizbullah), an effect that would assuredly increase rather than diminish the overall number of civilian victims in the region.

What are the precise intentions of these state and terrorist actors? Based upon their own repeated public statements, these intentions are incontestably genocidal. In this connection, it is vital to understand, jurisprudentially, that war and genocide need not be mutually exclusive objectives. The war for which various Islamic states and terrorists prepare against Israel would be the means to effect genocide against the Jewish State.

According to Articles II and III of the Genocide Convention, which entered into force on January 12, 1951, genocide includes any of several listed acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such...." It follows that where Israel is recognized as the institutionalized expression of the Jewish People (an expression that includes national, ethnical, racial and religious components), acts of war intended to destroy the Jewish State could assuredly be genocidal. Regarding such intentions, many of Israel's Islamic enemies, state and nonstate, seek Israel's complete annihilation. The words of Islamic Jihad, an Iranian-backed terrorist group responsible for the March 1992 bombing of the Israeli Embassy in Buenos Aires, is representative: "The war is open until Israel ceases to exist and until the last JEW (emphasis added) in the world is eliminated....Israel is all evil and should be WIPED OUT OF EXISTENCE (emphasis added)...."

"Just wars," we learn from Grotius, "arise from our love of the innocent." Recognizing this, the State of Israel - confronted by Hizbullah terrorists who seek to soften the Jewish State for larger forms of aggression - must continue to use all applicable military force within the constraints of humanitarian international law. Although perfidious provocations by Hizbullah might elicit Israeli actions that bring harms to noncombatant populations, it is these provocations, not Israel's responses, that would be in violation of pertinent legal rules.

International law is not a suicide pact! Faced with a terrorist adversary that follows a strategy of attrition as a prelude to one of annihilation, Jerusalem cannot permit egregious Hizbullah manipulations of civilians to preclude essential uses of force. Rather, it must now make the United Nations and the international community aware that perfidy is a crime under international law, and that it is the practicioners of perfidy, not those who are disadvantaged by such practice, that must be identified as not only criminals, but as hostes humani generis, "common enemies of humankind."

In the final analysis, Israel will have no alternative to maintaining lawful self-defense operations against Hizbullah terrorists, including periodic resorts to anticipatory self-defense. Such operations need not be injurious to noncombatant populations so long as the Hizbullah do not seek to hide behind these populations as human shields. Bound by the laws of war of international law, these terrorists, however, whenever they choose to commit perfidy, are the responsible party for all resultant harms done to civilians.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of fourteen books and several hundred journal articles dealing with International Law.

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