Hezbollah is responsible

One of the commenters at Harry's Place has created a summary of the situation in international law regarding the current war between Israel and Hezbollah in this thread, since you cannot link to an individual comment I'm going to post it in full.

I'm fairly certain there is something in the Geneva Conventions about it being valid to kill civilians, when the enemy is hiding amongst them. I'm researching it further to find the exact wording. - Monica

The exact wording is that it isn't. -dsquared

Both Protocol I and Article 28 of the Geneva Convention (IV) make clear that "the deliberate intermingling of civilians and combatants, designed to create a situation in which any attack against combatants would necessarily entail an excessive number of casualties is a flagrant breach of the Law of International Armed Conflict." In short, Hezbollah is in violation of the laws of war when it places missiles and rockets in villages and homes in order to shield them from Israeli attack.
  
Article 51(7) of Protocol I states: "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 attempts to shield military objectives from attacks or to shield, favour or impede military operations."  And the Geneva Convention (IV) holds that "The presence of a protected person may not be used to render certain points of areas immune from military operations."  (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, Laws of Armed Conflicts, 495, 511.)  Moreover, the Rome Statute is clear that "utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations is recognized as a war crime by Article 8 (2) (b) (xxiii)".

At the same time, the principle of proportionality applies even in such cases when a belligerent has committed the war crime of using a civilian objective to shield its military forces or weapons from attack. However, even if that is the case, the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that -- if an attempt is made to shield military objectives with civilians -- civilian casualties will be higher than usual. Legal scholar L. Doswald-Beck wrote the following regarding Israel's original Lebanon War in the Journal of Peace Research: "The Israeli bombardment of Beirut in June and July of 1982 resulted in high civilian casualties, but not necessarily excessively so given the fact that the military targets were placed amongst the civilian population." 

The above considerations pertain to the norms deriving from treaty law (e.g., the Geneva Conventions). But there is another set of standards which are relevant to the question of proportionality which derive from another source of international law, known as customary international law. Together with treaties, customary law is one of the main sources of international humanitarian law (IHL), or the laws of war. Customary international law is certainly more rigorous than the [Geneva] Protocol on this point.  It has traditionally been perceived that, should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent [party] placing innocent civilians at risk.  A belligerent...is not vested by the laws of international armed conflict with the power to block an otherwise legitimate attack against combatants (or military objectives) by deliberately placing civilians in harm's way."  In short, Hezbollah is legally (and morally) responsible for any Lebanese civilian casualties which result from Israeli bombardment of villages, homes or urban areas containing missiles, rockets or armed Hezbollah guerrilla forces—so long as Israel is aiming at these military targets, as it has.

An obvious breach of the principle of proportionality would be the destruction of a whole village--with hundreds of civilian casualties--in order to eliminate a single enemy sniper.  In contrast, if -- instead of a single enemy sniper -- an artillery battery would operate from within the village, such destruction may be warranted" under the laws of war.

Bridges and Civilian Casualties

Israel has bombed bridges in parts of Lebanon in order to prevent the movement of missiles into firing range of Israeli population centers, to obstruct the re-armament of Hezbollah, and to prevent Hezbollah from spiriting its captured soldiers to the Iranian Embassy, to Syria or Iran. Under the international law of armed conflict, "most bridges qualify as military objectives by purpose, use or above all, location...As long as they are apt to have a perceptible role in the transport of military reinforcements and supplies, their destruction is almost self-explanatory as a measure playing havoc with enemy logistics." Moreover, "given the significant military advantage that can generally be gained from the destruction of a strategically located bridge, relatively high civilian casualties would ordinarily be deemed reasonable collateral damage." 

Advance Warning Before Attacking Military Targets in Areas Affecting Civilians

Article 57(2) of Protocol I of the Geneva Convention, like the Hague Convention of 1907, "prescribes that effective advance warning must be given of attacks affecting the civilian population, 'unless circumstances do not permit'...Warnings are designed 'to allow, as far as possible, civilians to leave a locality before it is attacked.'" Israel has repeatedly given advance warning to civilians in areas containing military objectives it plans to target:  in south Beirut, before it attacked the Hezbollah stronghold, it gave at least 48 hours advance warning via airdropped leaflets, and it did the same with civilians in southern Lebanon, an area from which Hezbollah has been indiscriminately launching rockets at Israeli civilians within Israel, and where Hezbollah guerrillas have built fortifications and store arms.  

The Assessment of Proportionality 

Several conclusions follow from this review of the international law of armed conflict. First, the international laws of war permit considerable civilian casualties and harm to civilians of various kinds within the ambit of lawful combat, so long as a combatant fulfills its conditions.  Second, the principle of proportionality prohibits an attack on a legitimate military target only if the collateral civilian casualties would be disproportionate in relation to the specific military gain anticipated from the attack.  An attack against a legitimate military target is a war crime if the incidental loss of civilian life is "excessive in relation to the concrete and direct military advantage anticipated."  (Article 51 (5) (b) of Protocol I; Article 8 (2) (b) (iv) of the Rome Statute of the International Criminal Court). Even extensive civilian casualties may be acceptable, if they are not excessive in light of the concrete and direct military advantage anticipated." The Protocol refers to expected injury to civilians and to anticipated military advantage....what ultimately counts in appraising whether an attack which engenders incidental loss of civilian life or damage to civilian objects is 'excessive,' is not the actual outcome of the attack but the initial expectation and anticipation."

Anticipated vs. Actual Outcome of Military Actions and Proportionality

In making judgments as to the proportionality of an attack, if an extensive air campaign is undertaken, it would be mistaken to focus on the outcome of an isolated sortie. It has been rightly emphasized that, pursuant to Article 8 (2) (b)(iv) of the Rome Statute, assessment of what is excessive is to be based on 'overall' military advantage anticipated. By introducing the word 'overall', the Statute 'somewhat broadens the scope of military advantages which may be taken into account': it permits looking at the larger operational picture and not merely at the particular point under attack. It seems clear that the anticipated military and strategic gains, which include better protecting from rocket and missile attack more than 2 million Israelis--and with Tel Aviv and central Israel, virtually the country's entire population of 7 million--must be factored into any judgments about the proportionality of Israel's operations against Hezbollah. 

Finally, from all this it follows that it is a categorical mistake to simply count the number of civilian Lebanese casualties, and then ask--is this too many in relation to whether Israel can "destroy Hezbollah", as the appropriate way for evaluating the proportionality of Israel's military actions in Lebanon.   It is a mistake for at least two reasons:  first, because it is arbitrary and unreasonable to treat "the destruction of Hezbollah," and Israel's inability to attain this objective, as the sole military advantage which should enter into the calculus; and second, because the absolute number of civilian casualties resulting from Israel's actions, while not irrelevant to that calculus, is not the primary determinant of proportionality in international law. This is so because the moral and legal responsibility for many of those casualties under international law falls squarely on Hezbollah. Many more of those civilian casualties are also permitted as proportionate under the laws of war even though they sometimes represent a considerable number, in absolute terms.

Posted by: left, but not antizionist at July 24, 2006 06:20 PM

Israel attempts to target militants, Hezbollah attempts to target civilians. Israel attempts to warn civilians to get out of an area that it is about to attack, Hezbollah gives no warning about its' indiscriminate attacks. Israel clearly shows who is in it's military and who isn't, Hezbollah deliberately hides amongst civilians to use them as human shields. Israel wants to protect it's borders and has always accepted that there be a Palestinian state, Hezbollah and and the other Islamists (such as like Hamas or Iran, plus other non-Islamist funders such as Syria) have never accepted Israel's right to exist. Israel is the only true democracy in the region and the only country that has any respect for it's citizens, the goal of Hezbollah and the Islamists (after they have destroyed Israel and driven the Jews into the sea) is the creation of an Islamic State which, like all other Islamic States, will not even give the slightest pretense at accepting diversity or equality. Israel is reacting to a threat, but Hezbollah went out of their way to provoke them.

If Israel's response is stronger that might be wise perhaps this is because a large number of its citizens remember the results when another fascist group that openly stated it wanted to exterminate them. Hezbollah, the de facto government of southern lebanon, knew any response would be harsh before they picked a fight with Israel. Just as did Hamas, the actual government of Palestine in Gaza. Hezbollah and Hamas have then used every trick to make sure that the will be the maximum number of civilian casualties, so both legally and morally they are responsible for them. A ceasefire would be good, but a ceasefire requires that both sides cease firing. Something that Hamas has explicitly said that it will never do

"The resistance groups will not accept a political end to this," [Palestinian ambassador] Zavavi said. "They will not put down their weapons."

and there is no reason to think that Hezbollah would be any less intransigeant.