Flooding South Lebanon - Human Rights Watch

Disproportionate Attacks
In justifying its decision to mount the armed conflict in Lebanon, Israel has said that
the proper way to measure the proportionality of its actions is “not only in respect to
the initial Hizbullah cross-border attack, or even the 4,000 missiles fired at Israel’s
northern towns and villages, but also against the threat of the tens of thousands of
missiles which Hizbullah had amassed and continued to receive from Iran and
Syria.” 356 It is important to recognize that this argument is relevant only to Israel’s
rationale for war (or jus ad bellum) and does not in any measure justify the massive
cluster attacks in the last 72 hours of the war. Those must be weighed by the
principle of proportionality in the conduct of war (or jus in bello), under international
humanitarian law.
International humanitarian law defines proportionality in terms of “attacks,” not the
overall military response to the threat posed by an enemy. 357 “Attacks” mean “acts of
violence against the adversary, whether in offence or defence.” 358 The military
advantage of any given attack must be understood within the context of the broader
strategy of a war. Even legal scholars who judge military advantage in light of the
attack as a whole rather than its specific aspects acknowledge that “‘an attack as a
whole’ is a finite event, not to be confused with the entire war.” 359 Where a given
attack produces disproportionately high civilian harm to low military advantage, it
cannot be justified simply because a party deems the purpose of the overall military
campaign to have value.
In the passage cited above, Israel has also justified the proportionality of its decision
to go to war by citing the threat to its population from the entire Hezbollah arsenal.
But again, this argument has little to do with measuring the proportionality of cluster
attacks, which must be judged not in terms of the overall decision to use force but in
terms of the concrete and direct military advantage anticipated. Cluster munitions
356 Israel’s Response to Accusations of Targeting Civilian Sites in Lebanon During the “Second Lebanon War.”
357 The issue of proportionality also arises in the analysis of legal justification of war, which is not the subject of our analysis
in this paper.
358 Protocol I, art. 49(1). See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949, p. 603 (“In other words, the term ‘attack’ means ‘combat action.’”).
359 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 87.
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