Since forces linked to Hamas staged a raid on an Israeli army post on June 25, killing two Israeli soldiers and capturing IDF corporal Gilad Shalit, the Middle East has seen an escalating crisis.  In the days following Cpl. Shalit's abduction, Israeli forces attacked targets in Gaza, took control of parts of Gaza from which they had withdrawn last year, and seized a number of Hamas officials.  A second front in the conflict was opened on July 12, when Hezbollah forces operating out of Lebanon attacked Israeli military positions, killing eight Israeli soldiers and seizing two more.  Since then, Israeli forces have launched a series of airstrikes against targets across Lebanon, while Hezbollah has fired a series of rockets against towns in northern Israel.

The growing civilian death toll in the fighting between Israel and Hezbollah has attracted international concern and prompted warnings that war crimes may be taking place on both sides.  The U.N. High Commissioner for Human Rights, Louise Arbour, said on 19 July that there was a "supreme obligation" in international humanitarian law to protect civilians during hostilities, and said that there were grounds for thinking this obligation was being ignored. 

"Indiscriminate shelling of cities constitutes a forseeable and unacceptable targeting of civilians," Ms. Arbour said.  "Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable."

The International Committee of the Red Cross has also warned that key principles of the laws of armed conflict may have been violated.  The ICRC's director of operations, Pierre Krähenbühl, said on 19 July that "the high number of civilian casualties and the extent of damage to essential public infrastructure raises serious questions regarding the respect of the principle of proportionality in the conduct of hostilities."

So what are the relevant rules of international humanitarian law, and how do they apply in this context?

What Body of Law Applies?

In general, the laws of armed conflict are divided into two categories: laws that apply in wars between states (such as the Geneva Conventions of 1949), and a more limited set of rules that apply in civil wars and other "non-international conflicts."  The fighting in the Middle East shows how contemporary conflicts are often difficult to accommodate within this division.  Many commentators have characterized the fighting between Israel and Hamas and Hezbollah respectively as non-international conflicts, since Israel's opponent in each case is a non-state group.  However, since Israel has attacked targets across Lebanon and sent its forces into Lebanon, and Lebanon has characterized these actions as "barbaric aggression," it is also arguable that there is an international conflict between Israel and Lebanon, even though Lebanese forces have not responded to Israeli military actions.

In any case, many rules of customary international law apply in both international and non-international conflicts, and these rules establish a framework for assessing the legality of military attacks that is broadly similar across both types of conflict.

The laws of armed conflict recognize that some civilian deaths in war are likely to be inevitable.  The fact that civilians have been killed by a military operation is not enough to mean that it was a war crime.  However the rules of war lay down some constraints that all parties to a conflict must obey. 

The Rules Protecting Civilians

First, it is forbidden to direct an attack against civilians who are not taking an active part in hostilities.  Second, it is forbidden to attack civilian objects unless they make an effective contribution to your enemy's military operations.  Thirdly, it is against the law to launch indiscriminate attacks -- attacks that cannot be directed at a specific military target.  Attacks are also considered indiscriminate if they violate the principle of proportionality.  According to this important rule, the harm to civilians that is likely to be caused by an attack must not be excessive in relation to the concrete and direct military advantage that can be expected.  Forces must also do everything feasible to minimize the likely harm caused to civilians by their military operations.

Violations of these key principles of the laws of armed conflict are considered to be war crimes, for which individuals can potentially be held accountable.

How might these rules apply to the fighting between Israel and Hezbollah?  Hezbollah's rocket attacks against northern Israeli towns seem to have been launched without any attempt to discriminate between military and civilian targets, and thus appear to constitute indiscriminate attacks.  In the case of Israeli attacks on targets such as the Beirut airport, roads and bridges, Israeli forces have claimed a legitimate military justification in seeking to prevent the resupply of Hezbollah or the movement of Hezbollah forces.  Even if these claims are true, the harm caused by these attacks to the Lebanese population would have to be weighed against their military importance, to make sure that the rule on proportionality was being observed.

It is a feature of Hezbollah, as is generally true of terrorist or insurgent groups, that its fighters and weapons are hidden among the civilian population.  This means that attacks against them are likely to cause civilian deaths.  Again, in such cases, Israel would have to obey the rules on proportionality.  The rule does not provide a clear-cut formula for determining precisely what would count as an excessive civilian death toll.  However in making the comments she did, Louise Arbour (who was formerly the chief prosecutor for the Yugoslav war crimes tribunal) appeared to suggest that it might be difficult for Israel to justify some of its military actions according to this standard.

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