No, Mr. Panetta, the Radio Bombs Were Legal

The Hezbollah terrorist organization recently suffered a severe military setback with astonishingly few civilian casualties. And it was done by the book.

Two weeks ago, numerous one-way and two-way radios exploded in Lebanon and Syria. The detonations killed or maimed over 3,000 Hezbollah members but killed only six civilians. Although no one took responsibility for the high-tech attack, many observers, including the United States government, attributed the action to Israel. “Human rights” advocates (including a notable non-expert in this area – one Rep. Alexandria Ocasio-Cortez – who has never found occasion to protest Hezbollah’s campaign of rocket attacks against Israeli citizens) called for an investigation under international humanitarian law (IHL). Surprisingly, former Defense Secretary and CIA Director Leon Panetta went further, calling the operation “a form of terrorism.” However, Mr. Panetta’s use of that term in this context is mistaken, both as a matter of law and of common sense.

A 1980 treaty known as the Convention on Certain Conventional Weapons (the CCW) standardized the wartime use of landmines, booby-traps, and other improvised explosive devices. The law’s purpose was to ensure that users of these hidden weapons would minimize harm to civilians and avoid excessive injury to combatants. The CCW defined “booby-trap” to include any device built or modified to injure a person who unwittingly tried to use the device for a safe purpose. Because the above weapons might harm both combatants and civilians, the CCW emphasized the distinction between “military objects” and “civilian objects.” A military object is one which makes an effective contribution to military action and whose destruction offers a definite military advantage. The use of a civilian object such as a car or communications device for a military purpose would convert the item into a military object.

A 1996 update of the CCW called Amended Protocol II (Protocol II) adds more specifics on the wartime use of booby-traps. Protocol II, Article 7 divides booby traps into two categories. Booby-traps listed in category one, which are “prohibited in all circumstances,” are those assembled from items such as medical equipment, children’s toys, or religious books. In category two, the term “prohibited in all circumstances” is missing, so the determination of lawfulness impliedly depends on the circumstances. Category two booby traps are those fashioned from “apparently harmless portable objects.” Such an object, as interpreted by Israel’s war manual, could be a radio. To decide whether the radios in this case were employed under circumstances that converted them to military objects and thereby rendered them available for use as booby-traps, one must ask whether they effectively contributed to miliary actions and whether destroying them would offer a definite military advantage, as noted above.

News reports confirm that Hezbollah acquired the sabotaged radios to guide its operatives in the militant group’s war on Israel. Accordingly, the radios effectively contributed to the group’s military actions. The destruction of the radios gave Israel four military advantages. The counteroffensive killed or incapacitated thousands of Hezbollah terrorists, crippled their ability to communicate, threw their military plans into disarray, and sowed mistrust over their supply chain. Therefore, the radios were military objects available for booby trapping under Protocol II, Article 7.

The other relevant provisions of Protocol II incorporate the IHL principles that govern all types of warfare. First, the booby-trap strategy must observe the principle of “distinction” by targeting combatants as opposed to civilians. Considering the compromised radios were distributed to Hezbollah fighters, not civilians, the rule of distinction was met. Second, the booby-trap plan must be “proportional,” meaning the expected harm to civilians must not be excessive in relation to the expected military advantage. In this case, if the expected harm to civilians amounted to only six civilian deaths, those tragic casualties were certainly not excessive in relation to the four above-described military advantages. Third, the military exploit must include “practically possible precautions” to minimize civilian harm. Here, the amount of explosive charge placed in each radio bomb was miniscule, ensuring most or all of the blast would be absorbed only by the targeted Hezbollah individual. Finally, the initiative must not subject combatants to unnecessary suffering. This standard was met because once each radio bomb exploded it destroyed the radio, thus precluding any risk of further suffering.

The radio bomb attack was unprecedented and deadly. But it fully complied with international law. There is simply no basis to call it an act of terrorism.