ISRAEL, LEBANON AND HIZBULLAH: A JURISPRUDENTIAL ASSESSMENT

By Louis Rene Beres

An Informed Brief Appraisal

Under pertinent international law, responsibility for the 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 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 Hizbollah 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 Hizbollah 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 Hizbollah 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 Hizbollah perfidy, but also and more fundamentally because it has allowed its territory, for almost ten 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.

Finally, 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 (Hizbollah), an effect that would assuredly increase rather than diminish the overall number of civilian victims in the region.

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