Last week, Israel staged two waves of attacks via wireless electronic devices in Lebanon. On Sept. 17, hundreds of pagers distributed to Hezbollah operatives emitted a series of beeps, then exploded, killing at least a dozen people and wounding an estimated 2,700 more. The next day, walkie-talkies also exploded around Lebanon, killing another 20 people and wounding hundreds more. Many of those harmed were not part of Hezbollah. Four of the dead were children.
Isaac Herzog, Israel’s president, has publicly denied that the country was behind the attacks. However, defense officials confirmed to my Times colleagues Sheera Frenkel, Ronen Bergman and Hwaida Saad that Israel was responsible.
Since the explosions, a fierce debate has raged about whether the attacks violated international law. Much of that argument has centered on targeting decisions: whether Israel took sufficient care to attack only members of Hezbollah who were engaged in combat operations, (the only group within Hezbollah that could legally be targeted at home), and whether Israel complied with the law on proportionality by weighing the likely civilian harm of each detonation against the likely military advantage. (Marko Milanovic, a law professor who is also an adviser to the International Criminal Court, has written a useful explainer of some of those issues.)
I’m going to focus on a different legal issue: a 1996 United Nations treaty that specifically bans explosive devices that have been manufactured to look like “apparently harmless” portable items. Israel signed it 24 years ago.
Mines, booby traps and other devices
The treaty in question is the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices, usually referred to as “Protocol II,” because it’s an addition to the 1980 United Nations Convention on Certain Conventional Weapons.
The treaty language is helpfully clear. Article 7(2) states, in its entirety:
“It is prohibited to use booby-traps or other devices in the form of apparently harmless portable objects which are specifically designed and constructed to contain explosive material.”
Such devices were banned because they posed a particularly serious danger to the civilian population, U.S. secretary of state Warren Christopher wrote in a memo to President Clinton in 1996, recommending that the United States join the treaty.
The U.S. Military’s Law of War Manual also states in its section on Protocol II that covert explosive devices might be excessively dangerous if put into circulation en masse, in objects that are particularly attractive to civilians. It lists “watches, personal audio players, cameras, toys and the like” as examples of objects that would violate the rule.
Is a booby trap ever allowed?
Protocol II does sometimes permit modifying existing items to convert them into booby traps. “The classic example is the booby-trapping of a door or of a drawer,” said William Boothby, a former deputy director of legal services for the British air force, who has written extensively on weapons control law. Using that kind of booby-trap to slow an enemy’s advance would be allowed, because such improvised devices on the battlefield pose relatively little danger to civilians, the Law of War Manual states.
Some categories of objects are always off-limits, however, including children’s toys, wounded people, dead bodies, and items carrying Red Cross or other humanitarian emblems. And there are additional limits on where that kind of booby-trapping can be done — the explosives must be in the close vicinity of a military objective, for example.
In last week’s attacks, Israel manufactured thousands of pagers to contain small amounts of an explosive called PETN concealed within their batteries. It then distributed them to Hezbollah through a front company, Times reporting found. Hezbollah purchased the pagers to avoid using cellphones, which they thought could be vulnerable to spying.
The devices were reportedly signaled to emit a series of beeps before detonating. Nine-year-old Fatima Abdullah was in her kitchen in Lebanon when a pager on the table began to beep, her aunt told the Times. She picked up the pager to bring it to her father, but it exploded in her hands, killing her.
“If Israel was indeed responsible for these exploding pagers and in fact manufactured them, it would seem to violate this prohibition in this agreement,” said Brian Finucane, a former legal adviser to the U.S. State Department who is now a senior adviser with the International Crisis Group.
While many of the laws of war turn on complex questions of knowledge and intent, Protocol II’s ban on manufacturing portable explosive devices does not: The rule is simply that such devices are prohibited.
Some facts remain uncertain, and as they emerge that could affect whether the pagers fall within the treaty’s definitions of “booby traps” or “other devices.”
Boothby and Finucane both said that based on the information currently available, the devices appear to be booby traps, which the treaty defines as “any device or material which is designed, constructed, or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.”
“Other devices,” which the treaty also bans, are “manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are activated manually, by remote control or automatically after a lapse of time.” If new facts emerged that suggested the devices had been triggered automatically, Boothby said, then they might fall within that category instead.
Israel might in theory try to defend the pager attacks, he suggested, by claiming that the pagers fell outside the definition of “other devices.” That legal strategy could rely on an argument that Hezbollah members “manually emplaced” the devices after receiving the shipment rather than Israeli personnel doing so directly.
However, that interpretation would lead to the odd conclusion that an illegal device would become legal if it was moved by anyone other than the state using the device, including the civilians that the treaty intends to protect.
Under the rules of international law, treaties should not be read in a way that would frustrate the “object and purpose” of the agreement — a rule that might undermine that defense.
Laurie Blank, a professor of international law at Emory University Law School, said via email that in her view, the pagers could fall outside the treaty’s prohibition because they were working pagers, rather than just being manufactured to “look like” them.
But that interpretation could also potentially frustrate the object and purpose of the treaty, because it would create a significant loophole for the portable objects most attractive to unwitting civilians — as long as they at least temporarily perform their expected function.
Booby traps vs. airstrikes
To some, the ban on the manufacturing of booby traps may seem counterintuitive when it comes to minimizing harm to civilians. Defenders of Israel have argued that the pager and walkie-talkie explosions were a relatively targeted means of attacking Hezbollah, a militant group designated as a terrorist organization by the United States and Britain.
And certainly the pager and walkie-talkie explosions caused less harm than Israel’s aerial bombardment of southern Lebanon, which began a few days later. The airstrikes, which appear to have used conventional weapons that are not banned under Protocol II or other weapons treaties, killed 558 people on Monday alone, according to the Lebanese health ministry. The figures do not distinguish between civilians and combatants, although Lebanon’s health minister said that dozens of women and children were among those killed.
An Israeli military spokesman, Rear Adm. Daniel Hagari, told reporters that Israel was striking Hezbollah targets in Lebanon with “high intensity” because it sought to have “as short a campaign as possible.”
But Protocol II reflects a judgment by Israel and the 106 other signatories that some types of weapons are harmful in ways that go beyond casualty counts alone. Signing such treaties is voluntary, but once a country joins, it is legally bound by the treaty’s provisions.
Violating Protocol II may have no immediate consequences for Israel. But the attacks come at a moment when Israel’s allies are facing increasing pressure to limit or halt weapons transfers. Evidence suggesting that Israel violated an important arms treaty could add further weight to that campaign.
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