Two weeks ago, Lebanon accused Israel of exploding pagers and walkie-talkies across the country. Hezbollah used those pagers and walkie-talkies to communicate amongst themselves and to my knowledge, no one unconnected to Hezbollah[1] was directly provided with one of the explosive devices. U.S. officials confirmed the allegation, though Israel has not acknowledged responsibility. Collectively, the two waves of attacks killed at least 37, wounded over 3,000 individuals, and caused numerous residential and commercial fires. The explosions occurred in a wide variety of locations including homes and grocery stores. Relatedly, many civilians were in close proximity, with two children and two health workers among the fatalities. Some contend the attacks were precise and lawful, aimed at and almost entirely killing or injuring targetable members of Hezbollah. Others conclude the opposite, that the attacks were indiscriminate and lacking in reasonable care to protect civilians.
International humanitarian law, which governs these attacks, rests on a few basic principles. First, under the necessity principle, combatants may lawfully kill or destroy military targets. Second, in achieving their lawful ends, combatants must distinguish between lawful targets, such as enemy combatants and military objects, and unlawful targets, such as civilians and civilian objects. Third, combatants may lawfully cause anticipated proportionate harm to civilians and civilian objects as they attack lawful targets but may not lawfully cause anticipated disproportionate harm. Fourth, even lawful targets must not be subject to superfluous or inhumane suffering. Thus, in the weapons settings, the right of parties to choose means and methods of warfare is not unlimited, but rather constrained by these basic principles. Both international custom and international treaties reflect these principles, give direction as to their interpretation in specific instances, and may provide additional protections to civilians or combatants.
In this post about the walkie-talkie and pager attacks, I focus on questions raised distinctively by the Convention on Conventional Weapons (CCW), an international humanitarian law treaty. While questions of discriminateness, proportionality, and sufficient care for civilians are equally relevant, some CCW issues may add additional complications beyond general IHL prohibitions and permissions. While this attack may be the first mass[2] communication device strike of exactly this kind, I believe it will not be the last, so we should try to pin down what the CCW dictates before another strike occurs. In particular, I want to address the definition of “booby-trap” under article 2, whether the prohibition against using apparently harmless objects as booby traps under Article 7(2) applies to this attack, and the limitations on booby-traps in high civilian areas in Article 7(3). Other provisions might be relevant as well, but these three articles are the ones most often referenced in the ongoing public debate. While I am an expert on landmines, I have significantly less knowledge about booby-traps, so this is really a first cut in untangling some of the CCW issues.I welcome thoughts from those more conversant in these provisions.
Background on Convention on Conventional Weapons
States drafted the CCW to regulate conventional weapons and have met routinely since to develop further guidelines and rules. Some additional protocols to the CCW deal with then-emerging technology like blinding laser weapons while others address more long-standing and commonly used weapons such as landmines and booby-traps. Because the negotiating framework for the CCW relies on a consensus process, significant prohibitions on weapons currently in use are unlikely. Frankly, many of its members embrace this reticence for wholescale bans of existing weapons as a feature, rather than a bug of the process. Hence, states viewed the CCW as a more military-friendly venue to negotiate over landmines and booby-traps than the competing Ottawa Process (which ultimately resulted in a total anti-personnel landmine ban). I raise this background because it may help inform whether a more or less aggressive interpretation of the relevant provisions in the Amended Protocol II (APII) to the CCW is the likelier.
Amended Protocol II, which entered into force in 1998, governs the use of landmines, booby-traps, and other devices, in both international and non-international armed conflicts. Israel ratified AP II to the CCW in 2000 which would apply to the Israel-Hezbollah conflict. Israel has been a vocal supporter of APII (likely because it prefers this formulation to the landmine ban) and has consistently submitted annual reports confirming training on CCW legal issues.
Article 2(4): What is a booby-trap?
What does APII say about booby-traps and how ought that apply (or not) to the pager and walkie-talkie attacks? To begin, Article 2(4) of APII defines booby-traps 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.” Notably, neither APII, nor any other IHL per se bans all use of booby-traps. Rather, Article 3 of APII applies basic IHL principles in this setting by prohibiting the direction of booby-traps against civilians or civilian objects, the indiscriminate use of booby-traps, and their use when designed or of a nature to cause superfluous injury. The CCW also directs that using parties must take all feasible precautions to protect civilians from their effects. And as we will see below, APII adds additional protections that might not be dictated by pre-existing IHL custom and treaties.
So question one is whether the explosive walkie-talkies and pagers themselves (or the explosive material inside the walkie-talkies and pagers) ought to constitute booby-traps. One important possibility that I have seen mentioned only in passing is that perhaps the cell phones and walkie-talkies are not designed, constructed, or adapted to kill or injure, but rather the explosives are designed, constructed, or adapted to destroy the pagers and walkie-talkies themselves. Israel might have lawfully concluded that the communication devices were a military objective, since they were used to convey information about attacks and other information to coordinate and communicate among fighters. Disrupting communication across fighters would easily and obviously be a legitimate military objective. In a somewhat similar setting, William Boothby has argued that a kill switch in a computer that operates unexpectedly when a user of the computer undertakes a usually safe act of switching on the computer might constitute a booby-trap. But he emphasizes that states could conclude that if the kill switch is designed to disable electricity supplies to facilities essential to life support it would not count as “only devices that kill or injure as the immediate or first order effect come within the Protocol II definitions.” (emphasis added).So here too, perhaps, Israel conducted the strikes with a first-order effect is to destroy communication lines and thus determined second-order effects of killing or injuring members of Hezbollah do not bring the attack within the Protocol II definition. Given the very limited blast range of the explosives used and the relatively small number of casualties, such an argument about the intent of the strike seems at least possible on its face. If, and this is a very big if, Israel’s objective of the attacks was to destroy the pagers and walkie-talkies and the harm to Hezbollah members was merely incidental or collateral, Israel has a plausible argument that their attack did not use booby-traps as defined under 2(4) and thus the attacks were not subject to provisions 7(2) or 7(3) discussed below. The attacks would, of course, still have to satisfy more general IHL principles, but there would not be a stand-alone CCW APII violation.
Assuming to the contrary, if the goal of the attacks was to kill or injure members of Hezbollah,, would Article 2(4)’s definition of booby-traps be satisfied? To answer that question, we must turn to the second part of the booby-trap definition, which limits the devices to those that “function[] unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” From existing news reports, the pagers and walkie-talkies did not seem to function unexpectedly when a person disturbed or approached them or performed acts like transporting, holding, or reading messages. Rather they all appeared to detonate nearly simultaneously and regardless of the actions of the person closest to them. As far as is currently reported, a sent message triggered the explosions independent of what a user or transporter or handler was doing with the device. But if further investigation shows that someone had to, for instance, read the message or access the device in some way for detonation, then it would seem to satisfy the “performs an apparently safe act” language. .
A related argument might be that the walkie-talkies and pagers fall under the Article 2(5) definition of “other devices.” APII defines other devices as “manually emplaced munitions and devices including improvised explosive devices designed to kill, injure, or damage and which are actuated manually, by remote control or automatically after a lapse of time.” While the pagers are set off by remote control, scholars such as William Boothby have concluded “manually” is designed to distinguish between munitions that are individually and directly emplaced by a person and those that are mechanically emplaced. . . The munition [here] is not being manually emplaced in the manner required by the “other device” definition.” But of course, Boothsby has provisionally concluded that pager satisfied the booby-trap definition.” So perhaps reading 2(4) and 2(5) together, perhaps we might be in a position where the pagers and walkie-talkies ought to fall under one of the two provisions as the animating concern of the provision is satisfied. By that I mean a spouse or child could pick up their relative’s pager and would not have any reason to fear harm from the pager itself. The same would be equally true for a targetable member of Hezbollah who would not know the risk of pager explosion.
Article 7(2): What is covered by “the form of apparently harmless portable objects”
If one concludes that the walkie-talkies and pagers were indeed booby-trapped or constitute other devices under Article 2, what follows, given the CCW APII does not outright ban their use? I will leave it to others to discuss the discriminateness, proportionality, and feasible care provisions in order to focus on Article 7(2) and 7(3) of APII. Article 7(2) does specifically prohibit the use of booby-traps or other devices in “the form of apparently harmless portable objects which are specifically designed and constructed to contain explosive material.” This provision is designed to protect civilians from objects that they are likely to be attracted to or to use in daily life.
For what it is worth, none of Israel’s recent state reports to the CCW discuss provision 7(2), though I hope its next report will address its legal justifications for its interpretation of this provision. Relatedly, Israel submitted no reservation, declaration, or understanding to Article 7(2), though it did for Article 7(f)(1). For the latter, Israel reserved the right to use other devices to destroy food or drink “that is likely to be used by an enemy military force, if due precautions are taken for the safety of the civilian population.” So we are left with plain meaning and reasonable interpretations of the text.
I find the U.S. position here instructive. The U.S. Department of Defense Law of War Manual seems to view Article 7(2) as a complete prohibition saying, “It is prohibited in all instances to use booby-traps or other devices[3] in the form of apparently harmless portable objects that are specifically designed and constructed to contain explosive material.” It gives examples of booby-traps manufactured to look like “watches, personal audio players, cameras, toys, and the like.” That said, the U.S. further indicates that the rule allows field-expedient adaptation to retard an enemy advance because such improvisation “does not pose the same sort of danger to the civilian population as the mass production of objects specifically designed as booby-traps.” Such adaptation can occur ahead of time so long as the device is not specifically designed or constructed for use as a booby-trap. But even then, the U.S. clarifies “it is the mass production of apparently harmless portable objects specifically designed as booby-traps (such as those used by Soviet forces in Afghanistan) toward which this provision is directed—not towards the ad hoc adaptation of devices, for example, by U.S. special operations forces.” I do not think this exception, even if a legitimate interpretation of APII, would apply to the widescale alteration of the pagers and walkie-talkies since among other reasons, the Israeli attacks were offensive rather than defensive in nature and might pose the same danger to the civilian population as fake pagers or walkie-talkies constructed as booby-traps.
Perhaps more important, some scholars and members of the military seem to have long understood Article 7(2) not to apply to booby-trapping actual miliary objects themselves. For instance, Wing Commander U.C. Jha wrote in reference to the same provision in an earlier Protocol II that “It is not forbidden to booby trap a transistor, for example, but it is forbidden to manufacture booby-traps which appear to be transistors.” Similarly Michael Schmitt argues that Article 7(2) “does not bar the booby-trapping of actual harmless objects such as cameras. . . .The prohibition only applies when the booby-trap is intentionally designed to look like a camera.” Does the fact that the pagers and walkie-talkies were first manufactured as functional communication devices, but were then altered to contain explosives mean they would fall under such an understanding? And is such an understanding consistent with the treaty language, and does it matter that Israel has, to my knowledge, submitted no specific reservation or understanding to this effect? Would it count as mass production if Israel knew that the pagers and walkie-talkies would almost exclusively be in the hands of Hezbollah as opposed to available to all consumers, or is this undertaking better understood as akin to field-expedient adaptation?
Article 7(3) Regulation of booby traps and other devices in high civilian concentration areas
Article 7(3) bans the use of booby-traps or other devices in “any city, town, village or other area containing a similar concentration of civilians” if “combat between ground forces is not taking place or does not appear to be imminent” unless they are “placed on or in the close vicinity of a military objective” or measures are taken “to protect civilians from their effects.” Justifications offered for this provision include the observation that in the absence of combat or imminent combat, “soldiers though not insulated from attack were at least entitled to assume that the enemy would not place booby-traps in purely civilian areas. After all, doing so would dramatically increase the likelihood of innocent civilians being killed.” As the walkie-talkies and pagers exploded throughout Lebanon, at least some of the communication devices were verifiably located in cities and other relevant locations.
So the relevant potentially contested clauses are (a) whether combat between ground forces is taking place or appears imminent and (b) whether the devices were placed on or in the close vicinity of a military objective. As for actual combat between ground forces, the answer seems to be no. Since October 8, Israel and Hezbollah have exchanged mostly low-level fire across the border, but this probably does not constitute combat between ground forces under a plain meaning of the text nor a purposive one. It seems like the allowance of booby-traps related to concerns about the need for defensive use of booby-traps when forces might need to retreat quickly because of possible direct contact between ground forces. I would be very surprised if the drafters meant to allow booby-traps in civilian areas where ground forces had not entered and had no immediate plans to do so. Hence the language about “appears to be imminent”. And as to that contingency, as of September 22, Israel officials indicated that Israeli ground forces may enter Lebanon, though they did not do so until October 1. Since it is Israel using the booby-traps or other devices, they knew that combat was not imminent as of the time of the walkie-talkies and pager strike. A colleague suggested an intriguing alternate example where Hezbollah attacks on Israel forces in the Galilee might have been imminent, but those Hezbollah discussions about an invasion occurred as a response, rather than prior to, the walkie-talkie and pager attacks. Even if the discussions had instead been imminent plans prior to the attacks, I think such attacks would speak to the potential lawfulness of booby-traps or other devices where Israel believed strikes to be imminent in Israel where ground combat was anticipated, not in Lebanese cities more generally.
That gets us to “whether the devices were placed on or in the close vicinity of a military objective.” Here, I think Israel might reiterate a variation of its possible Article 2 argument. As discussed above, the walkie-talkies and pagers themselves may have been the military objective. If that’s right, then it seems the exception to the prohibition is satisfied and then the legal conversation returns to more general IHL conversations about discrimination and proportionality. Under this thinking, this would be no different from booby-trapping a military vehicle, something scholars such as Kevin Jon Heller, have argued would be lawful outside an active combat zone in a civilian area. If, instead, the military objective is the members of Hezbollah themselves, then we are again, I think, returned to larger IHL questions about which members of Hezbollah are targetable, whether the walkie-talkie distribution and pagers were reasonably anticipated to be limited to such members, and then the more CCW specific question of whether putting explosives in the communication devices which had not yet been distributed ought to count as “place[ment] on or in the close vicinity of a military objective.”.
Conclusion
I’m afraid I may have left this post with more questions than where I started, but hopefully this introduction to the CCW issues raised by the pager and walkie-talkie strike will help point in the direction of answers.
[1] There are of course significant factual and legal questions about whether every person who received a pager or walkie-talkie was targetable under the Geneva Convention. My point is that someone with no connections to Hezbollah would not have been able to purchase such a pager or walkie-talkie and that Hezbollah seemed to only be providing these devices to those individuals with a significant connection to it.
[2] It is not the first modern communication device explosion, as the Shin Bet remotely detonated a rigged cellphone in 2006 to kill Hamas bomb-maker Yahya Avyash.
[3] Article 2 defines other devices that are manually emplaced munitions and devices including improvised explosive devices designed to kill, injure, or damage and which are actuated manually, by remote control or automatically after a lapse of time.”
