Is it Cake? On Boobytrapped Pagers, IHL and Scenario-based Thinking

[Dr. Lucas Roorda is Assistant Professor of International and European Law at Utrecht University, and a researcher at the Utrecht Center for Accountability and Liability Law (UCALL)]

It sounds like an operation straight out of a spy movie: intercepting a shipment of pagers destined for use by an armed group, rigging them with explosives and a mechanism for triggering these explosives remotely, sending the pagers to their eventual users and then detonating them. Except this is not a spy movie, it is at least approximately what happened on 17 September 2024, when thousands of pagers owned and likely used by Hezbollah members exploded simultaneously across Lebanon, killing at least 12 and wounding thousands. Amongst the victims were several persons standing close to persons wearing the pagers, and at least one child was killed. While many details are still unclear, including how many pagers where intercepted and rigged, when and how many are still in circulation, it is generally assumed that the operation was carried out by Israeli agencies to disrupt Hezbollah organization in Southern Lebanon.

The attack raises several issues under IHL, including the status of the targeted individuals, the potential effect of spreading terror amongst the civilian population, and generally whether it adhered to the principles of distinction and proportionality. In this post I will however focus on whether the attack specifically violated the prohibition of certain types of boobytraps under article 7(2) of Amended Protocol II of the Convention on Certain Conventional Weapons (CCW). This question was subject to some social media discussion between Prof. Aurel Sari and myself, and also addressed by Prof. Stefan Talmon on Verfassungsblog. Both Prof. Sari and Prof. Talmon take the position that because the devices were created by modifying existing pagers, they do not fall within the prohibition of art. 7(2). I argue such an interpretation creates a legal gap that runs counter to the other provisions and the purpose of the Protocol, distorts the practice of using boobytraps in warfare and is generally at odds with underlying principles of IHL. 

Applicability of Amended Protocol II

Protocol II to the CCW was adopted in 1980 and amended in 1996; the original Protocol remains in force for a limited number of states that have not ratified the Amended Protocol. Both Israel and Lebanon are parties to the Amended Protocol. It applies to both international armed conflicts (IAC) and non-international armed conflicts (NIAC). As Prof. Talmon has remarked, Israel has issued a special declaration limiting the applicability of the Protocol to NIACs on the territories of the High Contracting Parties, which may call into question its applicability here. This declaration should not be understood as a formal reservation, and therefore has no legal effect. But even if it would have legal implications, I would still argue that the pager attack occurred in the context of an ongoing NIAC between Israel and Hezbollah, and that this NIAC takes place on the territory of both Lebanon and Israel. That would mean the Protocol is applicable to the attack, even following Israel’s declaration.  

There is also some argument regarding the legality of the intended targets. For the sake of clarity of this post, I will make two assumptions: first, that the targets were all Hezbollah members with a continuous combat function as defined by the ICRC’s guidance on direct participation in hostilities. Second, that this would make them lawful targets under IHL by virtue of their status. I should nevertheless note that these assumptions can be disputed, as discussed in Marko Milanovic’ recent reflection on the attack.

Amended Protocol II regulates (the use of) various forms of landmines, as well as boobytraps and other explosive devices. Article 2(4) defines boobytraps 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” (emphasis added). “Other devices” as defined by article 2(5) are munitions and explosive devices which are “manually placed” and ““are actuated manually, by remote control or automatically after a lapse of time.”

The Ambiguous Prohibition of Boobytraps and Other Devices

The first point of contention is whether the pagers should be considered boobytraps or “other devices”. In that respect, Prof. Talmon points out they were likely triggered remotely and not by operating the devices or proximity of the targets. They thus appear more like remote-controlled IEDs than ‘classic’ boobytraps triggered by tripwires or proximity fuses, which would put them in the category of “other devices”. I would argue the detonation mechanism does not exclude them from the category of boobytraps, as the use of the word ‘when’ in art. 2(4) implies the mechanism is triggered during operation, not necessarily because of it. Compare the definition of anti-personnel mines in article 2(3) the same Protocol, which specifically uses the word ‘by’ – indicating proximity or disturbance needs to cause the mechanism to trigger for something to be considered a landmine.

This distinction may seem mostly academic considering boobytraps and “other devices” are principally regulated by the same provisions under the Amended Protocol, but it matters once it comes to applying the relevant prohibitions of article 7. Art. 7(1) first prohibits the use of boobytraps and other devices “in any way attached to or associated with” a number of objects specially protected under IHL, including protective emblems, medicine, food and drink, objects of cultural significance or children’s toys. Article 7(2) then prohibits using boobytraps and other objects “in the form of apparently harmless portable objects which are specifically designed and constructed contain explosive material.” This prohibition reflects the principle of distinction, and the prohibition of methods are means that cannot be directed at a specific military objective (as prohibited by art. 51(4)(b) Additional Protocol I).

It is hard to dispute that the pagers should be considered “apparently harmless portable objects”. The difficulty lies in the qualification “specifically designed and constructed”, which is at the core of my disagreement with Prof. Sari and Prof. Talmon. The pagers were manufactured by a Taiwanese company with no other known relation to any of the parties in the conflict, and were only turned into explosive devices after interception by (allegedly) Israeli agents; i.e., they were adapted from an existing object, not specifically constructed. As both Prof. Sari and Prof. Talmon argue, this excludes them from the prohibition of article 7(2). Support for this reading can be found in a declaration of understanding made by US at the adoption of the original Protocol, stating that the prohibition does not cover adapted objects that do not otherwise violate article 7(1) (then 6(1)(b)). A similar declaration was made by the US Senate at the ratification of the Amended Protocol, that 7(2) does not apply to “expedient adaptation” of objects, nor objects adapted “in advance”. As an alternative reading, a 1998 report from the US Senate Committee on Foreign Relations suggests that the prohibition of art. 7(2) was intended to prohibit specifically mass production of innocuously-looking explosive devices. The report cites the use of such devices by the Soviet Union in Afghanistan as an example of this practice.

There are four reasons why I consider this reading unpersuasive, and problematic in light of the object and purpose of the CCW. Firstly, it is at odds with the aforementioned definition of boobytraps of art. 2(4), which does include adapted devices in its definition of boobytraps. It seems unlikely that these were intended to be covered by the definition itself and the prohibitions of art. 7(1), only to then be excluded from the much narrower prohibition of art. 7(2)). Secondly, even if we assume adapted objects are not covered by art. 7(2), it does not automatically follow that ‘constructed’ can only mean from raw materials. We can infer as much from the definition of “other devices” under art. 2(5), which does not mention adaptation and is generally understood to refer to IEDs. Reading ‘constructed’ to exclude any form of adaptation would thus exclude the – very common – practice of building IEDs out of existing ordnance like grenades from the prohibition of art. 7(2). This seems overly restrictive, as it would rob art. 7(2) from much of its meaning when it comes to restricting and prohibiting IEDs. In fact, proliferation of existing munitions to be repurposed as IEDs is an ongoing significant concern, as we can read in recent state and expert comments regarding challenges to Protocol II.

History and Hypothetical Scenarios

The third problem concerns the scenarios that supposedly informed the drafting of art. 7(2). Those scenarios are primarily derived from comments and declarations made by US and UK representatives to the conferences drafting the original and Amended Protocols. I will focus mostly on the 1998 US Senate committee report, because it is most elaborate on how the US understands the art. 7(2). I will first note that this understanding is not expressed in a reservation to the Protocol or any other instrument intended to have legal effect; moreover, as already alluded to this only reflects the views of one or two parties to the Protocol, primarily the UK and US. While other states refer to this in their military manuals, no other state has issued a similar reservation, interpretative declaration or understanding, even though there is a wealth of declarations considering technical understandings of other aspects of the Protocol. 

To reiterate, according to the US Senate report the scenario envisaged during the drafting of art. 7(2) was that of a state designing and mass producing innocuously looking objects rigged with explosives, as the Soviet Union supposedly did in Afghanistan. There are however three issues with this example alone. First and foremost, it is an incorrect representation of the facts, as the Soviet Union did modify existing objects, in particular children’s toys. It did not have a designated toy bomb production line specifically for this operation. Secondly, even those bombs had been made from raw materials, that particular scenario would already have been prohibited by article 7(1), as the Soviets used toys and food items as boobytraps. There is no legal gap here that article 7(2) needed to close. Thirdly, even if the Soviet Union had specifically designed and built boobytraps and this was on the mind of the drafters, it still does not mean this should be the exclusive understanding of article 7(2). Given the ambiguities in the Protocol and contradiction with art. 2(4) as discussed above, surely other states would have clarified that art. 7(2) was meant to apply to this scenario only.

That art. 7(2) should be read to categorically exclude pre-adapted devices from its scope, seems even more unlikely given the long list of historical examples of such devices. Adapted devices have ranged from the ridiculous to the horrifying – from the Vietcong rigging motorcycles to the CIA attempting to provide Fidel Castro with an exploding cigar, and indeed to the Soviets tricking children in Afghanistan with rigged toys. Conversely, the only possible instance of mass-produced, pre-made boobytraps is the Soviet example above; otherwise, it is an entirely hypothetical scenario. It is not hard to imagine why real objects are vastly preferrable to original designs, at least from the perspective of the attacker. It is a lot easier and cheaper to modify existing devices, than it is to build facsimiles from scratch. A real object adapted to contain a bomb is also much more convincing than a dummy or replica, especially to an adversary who is alert to being a potential target of attack. The pager attack would probably not have worked with fake, built-for-purpose versions replacing the original shipment. Unless they functioned exactly as the originals (up to using the same phone numbers), these replicas would be easily uncovered for what they were on first use, and might not have reached (most of) the intended targets. 

Taken together, this means that the ‘mass manufacture from raw materials’ reading is highly unlikely to have been the only situation article 7(2) was meant to regulate. So what then is the actual purpose of the “designed and manufactured” qualifier? To me, the more plausible reading is also mentioned in the US Senate report: it excludes improvised or ad hoc boobytraps made in the field. This would for example refer to scenarios where retreating forces rig objects left behind, which are expected to fall into the hands of the enemy. There is certainly an argument to be made for not unduly restricting soldiers in the field here, as they operate far away from civilians and under time pressure. But note the contrast with modifying several thousand pagers into explosive devices: instead of being prepared ad hoc, on the battlefield and under time pressure, the pager operation was geographically and temporally far removed from the actual fighting, with ample time to consider what objects to use, how they would be spread and the potential impact on civilians. It thus much more closely resembles mass production akin to what the Soviets supposedly did in Afghanistan, than it does ‘expedient’ adaptation.

Pagers and the Purpose of the Protocol

This brings me to the last and perhaps most important point, the object and purpose of the Amended Protocol and how it informs its provisions. Recall that the purposes of the CCW and its protocols include limiting the humanitarian impact of armed conflict and protecting civilians. This is further reflected in the specific rationale for prohibiting “apparently harmless portable” devices: they may well end up in civilian hands. Regardless of how you think of boobytraps generally, in terms of risk to civilians they are not created equal. A stash of weapons left at a depot is not just going to be given to a neighbor or co-worker; a broken car or piece of infrastructure is not easily transferred from person to person; some leftover tools at a military compound are not going to be handed to someone’s children to play with. But a pager, especially if it does not just look the part but fully works as intended, can easily be sold, given or borrowed to someone. That person would have no idea that they would be carrying around a potentially deadly object; if they are a civilian they should have no expectation to be the target of attack.

Conversely, the burden is still on the attacker to verify whether the object of attack is a lawful target at the time of the attack, and the extent to which the attack would cause incidental harm to civilians. These obligations are difficult to abide by, when well-disguised devices are spread in their thousands and detonated much later. It is not yet known how many of the pagers were in the hands of Hezbollah fighters when they detonated. It is however very clear that many civilians were killed or injured, including several children – either because they had the pagers at the time, or because they were close to whomever was carrying them. 

Taken together, it is hardly conceivable, bordering on the absurd that art. 7(2) of Amended Protocol II should be read to prohibit the use of explosive devices that look like pagers, but not explosive devices that are pagers. It would incentivize parties to make their boobytraps as realistic as possible – and therefore much more likely to harm civilians, frustrate the ability to take precautions in attack, and generally undermine the principles of distinction and proportionality. It would be like prohibiting the painting of protected emblems on military vehicles as perfidy, but not prohibiting the use of actual ambulances for troop transport. In other words, it would go against the object and purpose of the CCW and its protocols.

Is it Cake? An Ethical Question for International Lawyers

There is a broader point to be made here. Distinguishing harmless objects from bombs is not a game of “is it cake”. It is not reality TV. Participation is not voluntary, it is forced upon people who did not ask for this conflict, let alone to be part of it – which in case of some victims of the pager attacks, they were barely aware of. Guessing right does not win them a trophy, it gives them a chance to live another day – in terror of what every day object might explode around them tomorrow. Compared against the terrible toll already exacted on civilians in this conflict, and the developments since this particular attack occurred, it may not stand out as the most pressing problem. But still, it cannot be the case that we endeavor to conclude treaties and protocols to protect civilians from armed conflict as much as possible, only to then read them down to allow some a macabre guessing game.

We should also look at our profession as legal academics, and our role in enabling or legitimizing certain practices – even if it is unintentional. This point was also quite forcefully made by Dr. Tamsin Paige on a recent episode of the Called To The Bar podcast. Yes, as lawyers we are expected to consider the exact meaning of legal language, even when we do not necessarily like the outcome. And yes, as international lawyers in a positivist system, we should consider states’ actual intent when they agreed on certain rules and restrictions – which is often less than utopian. But if the text itself is indeterminate or internally conflicting, and states’ original intent unclear or ambiguous, we should not overlook the ethics – and more importantly, the human cost – of capitalizing on linguistic ambiguity. It is easy to have these discussions purely in the abstract, without properly accounting for the consequences. But states and other parties to this conflict are reading along. They have, through their words and actions, made abundantly clear how they balance the principle of humanity against their own strategic and military interests, and how they value the lives of Others. They do not need an additional excuse to cause more harm, and we should not provide it for them.