On September 17th, thousands of pagers exploded across southern Lebanon, Beirut, and Syria. The explosions, followed the next day by exploding walkie talkies, killed dozens, including two children, and injured thousands more.
Although no entity has publicly claimed responsibility, the available information points squarely at Israel as having planned, organized, and conducted the action. Based on reporting by the New York Times and other news organizations, it appears that Israel specifically manufactured pagers to incorporate explosives (reportedly the batteries of the devices were laced with the explosive PETN) and distributed them to Hezbollah via a front company registered in Europe. Axios cited a former Israeli official who said Israeli intelligence services had originally planned to use the modified pagers as a “surprise opening blow in an all out war to try to cripple Hezbollah.” Three unnamed U.S. officials told Axios that Israel decided to detonate the pagers due to fears Hezbollah had discovered they had been altered and thus Israel had to “use or lose” the capability.
As sketched out in Just Security last week, the exploding pagers raise several factual and legal questions related to the law of war. Based on the information that has emerged since the event, one of the law of war issues we are now better able to address is whether the pagers violated Article 7(2) of the Amended Protocol II of the Convention on Certain Conventional Weapons (to which Israel, Lebanon, and the United States are parties). The analysis under Article (7) of Amended Protocol II is more straightforward than many other law of war inquiries, which tend to be fact intensive. That is because the rule imposes a per se ban on certain weapons no matter how they are used.
As I flagged on the day of the attacks, one of the most salient law-of-war rules relevant to the exploding pagers is the categorical prohibition on certain exploding booby-traps under Article 7(2). In the days following the attacks, Article 7(2) has been cited in connection with the exploding pagers by some commentators as well as the Republic of Korea at the UN Security Council and Congresswoman Alexandra Ocasio-Cortez (D-NY) on social media. (The tweet by Representative Ocasio-Cortez also prompted a response from New York Times columnist and former Army Judge Advocate General David French.) Writing in Articles of War, William Boothby analyzed a number of legal issues raised by the exploding pages and with respect to Article 7(2) observed “[t]he information in the early reports suggests that once the arming signal has been sent, the devices used against Hezbollah in Lebanon fall within Article 7(2) and are therefore prohibited on that basis.”
Given the volume of atrocities alleged to be committed by the parties in the hostilities since October 7th—starting with Hamas’s precipitating attack on Israeli civilians—the focus on a prohibition implicated in attacks that could have primarily harmed lawful targets may appear odd. But the ban reflects the United States’ own experience with booby traps in past wars, putting a fine point on the extent to which its observance implicates U.S. as well as global interests.
Based on the currently available information and subject to change in light of new facts, there is a strong basis to conclude Israel violated Article 7(2) of Amended Protocol II.
Amended Protocol II
The scope of Amended Protocol II is reflected in its title: “Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices.” Over 100 other states are parties to the agreement which applies in both international and non-international armed conflicts. Importantly, these prohibitions and restrictions on the use of specific weapons apply in addition to the law of war rules governing the conduct of hostilities (contra David French’s strained interpretation). Therefore, even if the use of one of the covered weapons might otherwise be consistent with the law of war, it may nonetheless be restricted or prohibited by Amended Protocol II.
As defined in Article 2(4) of Amended Protocol II, a “‘Booby-trap’ means 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.”
Based on the text of this definition, the relationship between the unexpected function of the apparently harmless object and actions by the victim (“an apparently safe act”) is temporal not causative. That is the unexpected function—such as an explosion—need only happen while a person performs an apparently safe act. It need not be triggered by a person performing such an act.
This conclusion is reinforced by the French and Spanish texts of the agreement which also use temporal rather than causative language in their definitions, “quand” and “quando” respectively.
Moreover, in contrast to this definition of “booby-trap,” Amended Protocol II clearly specifies that some other devices do require action by the victim to trigger them. The definitions of both “mine” and “anti-personnel mine” provide that they are “exploded by the presence, proximity, or contact of a person.” The absence of any similar formulation in the definition of “booby-trap” reinforces the conclusion that it is not necessary for the victim to trigger the device for it to constitute a booby-trap.
In addition, Article 2(5) defines “other devices” under Amended Protocol II 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.”
Article 7(2)
Article 7(2) provides that “it is prohibited to use booby-traps or other devices in the form of apparently harmless portable objects which are specifically designed and constructed to contain explosive material.”
The United States has interpreted Article 7(2) of Amended Protocol II to ban the “mass production” of booby-traps, but not field-improvised exploding booby-traps constructed on an ad hoc basis. When the United States submitted its consent to be bound by Amended Protocol II, it did so with the formal understanding that “the prohibition contained in Article 7(2) of the Amended Mines Protocol does not preclude the expedient adaptation or adaptation in advance of other objects for use as booby-traps or other devices.” That understanding was reflected in the Department of State legal analysis of the agreement provided to the U.S. Senate when the Clinton Administration sought advice and consent for the treaty:
Paragraph 2 prohibits the use of any booby-trap or other devices in the form of an apparently harmless portable object which is specifically designed and constructed to contain explosive material. This does not prohibit expedient adaptation of objects for use as booby-traps or other devices that are not designed or constructed for such use, and an understanding should be adopted at the time of ratification to make that clear. Such improvisation of booby-traps, for example to retard enemy advance, does not pose the same sort of danger to the civilian population as the mass production of objects specifically designed as booby-traps toward which the provision was directed.
For its part, the Senate offered this commentary on the U.S. understanding in its report on the treaty:
This understanding states the view of the United States that the prohibition against the deliberate construction of booby-traps in the form of apparently harmless objects does not preclude U.S. military personnel from booby-trapping items, either in advance or in the field, as long as those items are not specifically designed and constructed to serve as booby-traps. 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.
Although the Department of Defense’s Law of War Manual may not necessarily represent the legal views of the U.S. government as a whole on certain issues, its commentary on Article 7(2) (included in Representative Ocasio-Cortez’s tweet) is noteworthy.
This prohibition relates to booby-traps manufactured to resemble items, such as watches, personal audio players, cameras, toys, and the like. This prohibition is intended to prevent the production of large quantities of dangerous objects that can be scattered around and are likely to be attractive to civilians, especially children.
This rule does not prohibit the use of booby-traps in connection with non-portable objects, such as a door or gate. This rule does not prohibit field-expedient adaptation, or adaptation in advance, of objects for use as booby-traps or other devices that are not designed or constructed for such use. For example, it would not be prohibited to improvise a booby-trap using a trip-wired hand grenade in the form of an apparently harmless portable object. Such improvisation of booby-traps, for example, to retard an enemy advance, does not pose the same sort of danger to the civilian population as the mass production of objects specifically designed as booby-traps.
Israel did not submit a reservation, understanding, or declaration in connection to Article 7(2) when it consented to be bound by the Amended Protocol II.
As elaborated in a footnote in the Manual (and cited in an Editorial by the Guardian), the types of exploding booby-traps prohibited by Article 7(2) were akin to those used by Japan and Italy during the Second World War. “The Japanese manufactured a [tobacco] pipe boobytrap with a charge, detonator, and springloaded striker. The Italians had a booby-trapped headset containing an electric detonator connected to the terminals on the back. The connection of the headset into the line communication line initiated detonation.”
Applying this interpretation to the available information regarding the exploding pagers in Lebanon, there is a strong basis to conclude that the pagers—or perhaps more precisely their batteries—were booby-traps prohibited by Article 7(2). Israel is reported to have mass-produced batteries for thousands of pagers, batteries which were specifically designed and constructed to incorporate the explosive PETN. The pagers and their batteries were not field-improvised devices constructed on an ad hoc basis. Instead, the development, construction, and deployment of these devices was reportedly a years-long undertaking.
That Israel, not the users of the pagers (and their batteries) in Lebanon and Syria, triggered the detonations does not afford any additional room for maneuver under Article 7(2). As discussed above, “booby-traps” for the purposes of Amended Protocol II do not require activation by the victim, merely that unexpected function occurs “when” a person “performs an apparently safe act.” Certainly the act of exploding would qualify as “functions unexpectedly” under the definition of booby-trap while carrying or handling the pagers and their batteries would constitute—“apparently safe act[s].”
Potential Criminal Implications Under U.S. Law
Under certain circumstances, a violation of Article 7(2) could amount to a federal offense under U.S. domestic law.
As with law of war treaties such as the Geneva Conventions and the First Additional Protocol to the Geneva Conventions, Amended Protocol II requires parties to criminally penalize certain violations. Article 14 of the treaty provides that:
1. Each High Contracting Party shall take all appropriate steps including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on territory under its jurisdiction or control.
2. The measures envisaged in paragraph 1 of this Article include appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring such persons to justice.
(emphasis added)
Israel submitted an understanding to Article 14 that reads in pertinent part
Article 14 of the Amended Protocol II (insofar as it relates to penal sanctions) shall apply only in a situation in which an individual-
1) Knew, or should have known, that his action was prohibited under the Amended Protocol II,
2) intended to kill or cause serious injury to a civilian; and
3) knew or should have known, that the person he intended to kill or cause serious injury to was a civilian.
(emphasis added)
For its part, the United States submitted an essentially identical understanding to this provision.
Article 14 of the Amended Mines Protocol (insofar as it relates to penal sanctions) shall apply only in a situation in which an individual –
(i) knew, or should have known, that his action was prohibited under the Amended Mines Protocol;
(ii) intended to kill or cause serious injury to a civilian; and
(iii) knew or should have known, that the person he intended to kill or cause serious injury was a civilian.
(emphasis added)
Even prior to becoming a party to Amended Protocol II, the United States passed domestic implementing legislation to comply with its prospective obligations under Article 14 of Amended Protocol II. In his 1996 testimony to Congress, Principal Deputy Legal Adviser to State Department Michael Matheson stated that the yet to be enacted War Crimes Act would need to incorporate penal sanctions as required by Article 14. Although the 1996 War Crimes Act did not originally include the necessary provision, the following year Congress amended the law to impose criminal penalties for certain violations of Amended Protocol II. (See Beth Van Schaack’s excellent history of the War Crimes Act.)
The War Crimes Act, 18 U.S. Code § 2441(c)(4) provides for jurisdiction over
a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
(I have not surveyed whether and to what extent the other 100+ parties have enacted similar domestic criminal legislation to fulfill their obligations under Article 14 of Amended Protocol II.)
Originally the War Crimes Act provided for jurisdiction only over offenses involving U.S. nationals or aliens lawfully admitted for permanent residence as offenders or victims as well as members of the U.S. Armed Forces. But in January 2023, the law was amended further. Prompted by Russian atrocities in Ukraine and the prospect that the United States might lack jurisdiction to prosecute Russians for war crimes there even if they later traveled to the United States, Congress working closely with the Biden administration enacted the Justice for Victims of War Crimes Act. (This 2023 amendment filled a longstanding hole in the legislation and was necessary to comply with the United States’ obligations under the Geneva Conventions.) This 2023 legislation provides for jurisdiction under the War Crimes Act if an alleged war criminal is present in the United States regardless of their nationality.
Although additional details about the devices have emerged in the week following the pager explosions, many of the factual law of war questions raised by the event have yet to be fully answered—including facts that would be necessary to evaluate whether the apparent violation of Article 7(2) also amounts to a criminal offense under U.S. law. Axios has reported that “Israeli Prime Minister Benjamin Netanyahu, his top ministers and the heads of the Israel Defense Forces and the intelligence agencies decided” to trigger the explosions due to concerns Hezbollah had detected booby-trapped devices. But whether this is sufficient to create legal jeopardy in the United States is unclear. That might turn, for example, on the extent to which the pagers (and explosive laced batteries within them) were directed only toward Hezbollah fighters or whether the Israeli officials involved with the operation also intended that civilians would also receive the devices. A key question in that regard is whether Israeli officials intended to kill or cause serious injury to members of the non-military wing of Hezbollah (including the status of reservists). In sum, there is insufficient information to assess whether relevant officials possessed the requisite mens rea, despite the fact that civilians were in fact killed by the explosions.
Conclusion
The prospect that Israel may have violated Article 7(2) of Amended Protocol II should prompt serious scrutiny by the United States government—including to determine whether a violation occurred. More broadly, it should prompt further consideration of the extent to which U.S. military support to Israeli military operations is consistent with domestic and international law as well as the Biden administration’s own policies such as the Conventional Arms Transfer Policy and National Security Memorandum-20. Such reevaluation is particularly necessary given that this action was reportedly authorized by senior Israeli officials, including the Defense Minister who provided assurances to the United States that Israel would use U.S. defense articles consistent with international law. Although the pager attacks may not have involved U.S. defense articles, a deliberate plan to violate a per se prohibition on the use of certain weapons would be relevant to the assessment of any assurances.
Finally, this Israeli action should be yet one more reminder to the Biden administration of the need to calm hostilities in the Middle East and avert further escalation—including that which could further involve U.S. armed forces. The administration’s ceasefire diplomacy has failed to halt the fighting in Gaza, and Hezbollah has made clear that without a Gaza ceasefire, it will continue to attack Israel. The U.S. government needs to finally use the leverage afforded by its military support to Israel to try to bring about a ceasefire in Gaza and hopefully quiet fighting elsewhere.