Ten-year-old Fatima had just arrived home from her first day in the fourth grade at school. She was in the kitchen when her father’s pager beeped nearby. She picked it up to take it to him just before it exploded and killed her. 

Across Lebanon on 17 September thousands of similar pager explosions occurred at the same time. The next day larger explosions of handheld radios took place throughout the country. One walkie-talkie exploded at a crowded funeral for four victims of the previous day’s pager attack, including an 11-year-old child and a nurse.

Sara Elizabeth Dill, Co-Vice Chair of the IBA War Crimes Committee and a partner at Anethum Global, says we’re ‘seeing a horrific increase [of incidents] where family members or others are being killed simply due to their proximity to a target. This resort to extrajudicial killings by states cannot and should not be the norm in international relations and conflict resolution and states must comply with international law.’

Amnesty International verified that many explosions took place in shops, on busy streets, or in homes. By 20 September nearly 3,500 injuries and 42 deaths had been attributed to the two attacks. The injuries inflicted – whether to civilians or to fighters from the Lebanese paramilitary group Hezbollah – were horrifying, with hundreds of people reported blinded and many having hands or fingers blown off.

Some analysts and technology experts have lauded the ingenuity and intelligence planning involved in the attacks. But there’s a question as to whether it’s right to celebrate audacity and technical skill where it results in the killing and maiming of innocent civilians.

Two fundamental principles of international humanitarian law relating to civilians are distinction and proportionality, both defined by the Geneva Conventions. 

The principle of distinction places a duty on the perpetrator to ensure the targets of an attack are military. Thus, non-combatant medical personnel – such as the medics killed by pager explosions, whether or not they were working at hospitals linked to Hezbollah, as well as workers at Hezbollah-associated charities, teachers and Hezbollah members of the Lebanese parliament – aren’t legitimate military targets. Markus Beham, Co-Vice Chair of the IBA Human Rights Law Committee and currently a professor at the Free University of Berlin, says that, on the information available, ‘the principle of distinction is considered one of the cardinal principles of international humanitarian law and it is hard to see how it was not violated by these attacks’.

Toby Cadman, Member of the IBA War Crimes Committee Advisory Board and joint head of Guernica 37 Chambers in London, offers a scenario. ‘Imagine for a moment that a number of those targets had unknowingly boarded commercial jets carrying explosive devices and imagine they boarded those flights with the explosive devices undetected,’ he says. ‘That could have resulted in countless civilian casualties.’

This is plausible. It’s been reported that when the pagers were purchased, Hezbollah tested their safety as part of a routine security sweep by successfully passing them through an airport scanner despite the presence of explosives. Some airlines have now banned pagers and two-way radios.

The principle of proportionality acknowledges that some civilian harm is often inevitable – and therefore not illegal – in wartime military attacks. But it stresses the obligation to assess and balance the expected military advantage against potential civilian harm, which must be mitigated. 

Craig Martin, a professor at Washburn University School of Law in Kansas, questioned how any proportionality assessment could possibly have been made. ‘If you don’t know where each of these explosives are, and who – in fact – is going to be injured, it’s hard to see how a very granular assessment of proportionality could have been undertaken, either collectively or in relation to each of these individual attacks,’ he said. Dill concurs. ‘The simultaneous nature of the attacks makes distinction of civilian targets or any proportionality analysis essentially impossible,’ she says.

The attacks also appear to breach Amended Protocol II of the Convention on Certain Conventional Weapons, which prohibits indiscriminate use of apparently harmless civilian objects that have been adapted to kill or injure. As Beham says, ‘this prohibition applies in any kind of armed conflict. Outside of the scope of international humanitarian law, such attacks and extrajudicial killings if committed by a state are an obvious violation of the human right to life.’

There’s also a question of the attacks having a purpose beyond harming Hezbollah’s fighters and communications. Daniel Hoffman, a former station chief at the US Central Intelligence Agency, has said that the attacks sent a message. ‘It seeks to drive a wedge between regular folks and Hezbollah [...] The message is, “You don’t want to be around them.”’

A UN panel of human rights experts underscored the illegality of such action. In a statement issued on 19 September, the group said that it’s ‘also a war crime to commit violence intended to spread terror among civilians, including to intimidate or deter them from supporting an adversary.’ The fear and panic the attacks generated spread well beyond Hezbollah supporters to the wider Lebanese population, leading the EU’s High Representative for Foreign Affairs and Security Policy, Josep Borrell, to conclude that the attacks were intended ‘to spread terror in Lebanon’.

What can be done to prevent such attacks becoming normalised? Cadman says the UN General Assembly should establish ‘an international independent impartial investigative mechanism’ to scrutinise the attacks, warning that ‘if there is no effective investigation, if perpetrators are not held accountable, there will certainly be an increase in this kind of modern warfare’.

Law often fails to keep pace with military technology and techniques, which risks such methods of warfare proliferating. But international inaction will mean civilians suffer indiscriminately on a widespread scale. As Dill warns, ‘the risk to civilians in attacks such as this are simply too great to allow impunity.’
 

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