The exploding wireless devices that targeted members of the Lebanese armed group Hezbollah this week have set off a debate among experts in international law: Are such attacks legal?
Specifically, legal scholars and advocates are asking whether it violates the laws of war to detonate secretly installed explosives in thousands of pagers and walkie-talkies when it is virtually impossible to know who else might be in the vicinity.
At least 37 people have been killed since Tuesday and thousands of others wounded in Lebanon by coordinated explosions of pagers and walkie-talkies believed to have been booby-trapped by Israel. Those killed appear to largely to have been members of Hezbollah, but also include several children.
“The explosions in Lebanon seem to have been targeted, but had heavy, indiscriminate collateral damages among civilians: children were killed,” the European Union’s top diplomat, Josep Borrell Fontelles, said in a statement condemning the attacks.
Other governments have reacted more cautiously. Secretary of State Antony J. Blinken said on Wednesday that the United States was still “gathering the facts” about the blasts.
The legal debate is complicated by the fact that while Hezbollah has blamed the Israelis for the attacks and American officials and many international experts say they are responsible, Israel itself has not publicly claimed responsibility.
Volker Türk, the U.N.’s high commissioner for human rights, on Wednesday called for an investigation, saying the people behind the attacks could not have known who might be holding the devices when they exploded.
A 9-year-old girl, Fatima Abdullah, was killed on Tuesday when she picked up a pager that was beeping on her kitchen table to take it to her father, the girl’s aunt said. A second child was also killed, Lebanon’s health minister said on Wednesday.
“Simultaneous targeting of thousands of individuals, whether civilians or members of armed groups, without knowledge of who was in possession of the targeted devices, their location and their surroundings at the time of the attack violates international human rights law,” Mr. Türk said in a statement.
In practice, no one is likely to be prosecuted under international law, given the secretive nature of the operation and the long history of covert actions in the Middle East — many ascribed to Israel — whose perpetrators have escaped accountability.
That has not hindered a lively debate.
Some experts on the law of armed conflict, or international humanitarian law, argue that Mr. Türk’s analysis overlooks the fact that the laws of war apply in this situation.
“Human rights are always present but are superseded in this case by the very specific laws intended for armed conflict,” Gary Solis, a retired Marine and Marine judge advocate who ran West Point’s law of war program. He is the author of “The Law of Armed Conflict: International Humanitarian Law in War.”
Although it may seem callous, Mr. Solis said, the reality is that international humanitarian law attempts to minimize civilian harm in war but allows for “collateral damage.”
The first question, he said, is whether the fighting between Hezbollah and Israel constitutes an armed conflict. He contends that it does, based on continual exchanges of fire between the two over the past 11 months.
But Mr. Solis also noted that analyzing these incidents is “like walking through a thick forest and trying to push aside a bunch of brambles” to answer questions that depend on specifics that are not known.
The key questions surrounding the legality of the attacks mainly relate to civilian harm.
Brian Finucane, a senior adviser with the International Crisis Group research institute and a former State Department legal adviser, said several factors could determine whether the attacks had violated the law of armed conflict or international humanitarian law.
In a post on the Just Security blog, Mr. Finucane wrote that among the factors were whether the carriers of the pagers were the intended targets and whether they were legal targets. Other considerations are whether the expected harm to civilians was excessive in relation to the military advantage, he said, and whether feasible precautions were taken to protect civilians from harm.
“Did this action constitute an indiscriminate attack or a series of such attacks?” Mr. Finucane wrote.
Mr. Solis, who is critical of Israel’s conduct of the war in the Gaza Strip, argued that in this case, the remote device attacks seem to be legal because the weapons did not cause “superfluous damage” or “unnecessary suffering” — both legal terms — and appeared designed to target individual Hezbollah operatives.
“Were they lawful targets?” asked Mr. Solis. “Probably, based on what we know. But we’re operating in the land of shadows.”
He noted, too, that the legality of booby traps may depend on how they were made.
“In World War II, we’d booby trap binoculars,” Mr. Solis said. “The Nazis would pick them up and they’d explode.” But it would have been illegal to build a factory that manufactured booby-trapped binoculars, he said.
It is a fine distinction but a critical one. “A combatant may booby-trap a camera which is in fact a camera, but he may not manufacture booby traps that appear to be cameras,” he said.
Eugene Kontorovich, a law professor at George Mason University in Fairfax, Va., defended the legality of the attacks against Hezbollah, saying they were a “classic act of sabotage.” To argue otherwise, he said in a social media post, would also call into question acts of sabotage against the Nazis, said Mr. Kontorovich, who is Israeli.
Human Rights Watch questioned the legality of the attacks.
“The use of an explosive device whose exact location could not be reliably known would be unlawfully indiscriminate, using a means of attack that could not be directed at a specific military target and as a result would strike military targets and civilians without distinction,” the group said in a statement.
There are other concerns.
There is widespread fear in Lebanon that, beyond pagers and walky-talkies, other devices may be rigged. Instilling this kind of fear also raises legal questions, some experts said.
“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited,” Alonso Gurmendi Dunkelberg, a fellow in human rights at the London School of Economics, wrote on social media.
— Anushka Patil contributed reporting
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