Israel, Hezbollah, and the use and abuse of self-defence in international law
By VITOR KATTAN*
Arab Media Watch
(26 July 2006) - MANY PRO-ISRAEL TV pundits are justifying Israel's relentless bombardment of Lebanon as "self-defence." For example, Jerry Lewis, senior vice-president of the Board of Deputies of British Jews, told the BBC's Dateline London programme on Sunday 23 July that Israel was acting in self-defence according to the UN Charter.
Self-defence is specifically mentioned in Article 51 of the Charter, and is effectively a derogation from the prohibition on the use of force contained in Article 2 (4). Whether or not Israel is acting in self-defence in Lebanon according to the Charter is a crucial question, as the implications of its actions could have negative ramifications beyond the Arab-Israeli conflict and spill over into other problem areas. I consider Israel's self-defence argument an abuse of terminology that is not applicable to the facts at hand and has no justification in international law.
On 12 July 2006, a frontier dispute between the Israeli army and the armed wing of Hezbollah rapidly developed into a full-scale armed conflict, leaving hundreds of civilians (mostly Lebanese) dead. According to Israel, the casus belli was a cross-border attack by Hezbollah which led to the capture of two Israeli soldiers and the deaths of eight others. However according to Hezbollah, Israel initiated the conflict by sending its soldiers into Ayta al-Sha'b, a Lebanese village just north of the Israeli border. International reaction to the conflict has mostly condemned both Hezbollah and Israel, with many nations expressing concern over a possible escalation of the conflict. The US, UK, Germany, France and Canada have acknowledged Israel's right to defend itself. The G8 (which includes the countries already mentioned plus Italy, Russia and Japan), blame the upsurge in violence on "extremists," thus accepting the casus belli advanced by Israel and its right to defend its people whilst urging it to be mindful of the strategic and humanitarian consequences of its actions.
Israel responded to Hezbollah's 'provocation' by threatening to "turn back the clock in Lebanon by twenty years," as Israel's Chief of Staff Dan Halutz put it, to the dark days of the civil war, when Israel is alleged to have killed 20,000 civilians. In a fortnight, Israeli missiles and shells caused the deaths of approximately 400 people, mostly civilians, many of them children, and displaced 700,000. The Israeli Air Force -- which according to British Middle East Minister Kim Howells has up to 600 jets flying sorties over Lebanon at any time, dropping U.S.-made "precision-guided" incendiary devices -- has caused massive infrastructural damage to Lebanon. Nothing has been spared: ports, bridges, motorways, power stations, whole neighbourhoods, mosques, churches, the airport, a lighthouse, hospitals and people fleeing in their cars.
Louise Arbour, UN High Commissioner for Human Rights, expressed "grave concern over the continued killing and maiming of civilians in Lebanon, Israel and the occupied Palestinian territory," as has the International Committee of the Red Cross. She suggested that the actions of Israel and Hezbollah may constitute war crimes. Arbour called for Israel to obey the international humanitarian law "principle of proportionality," adding that "indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians. Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable."
In 2000, Israel withdrew from southern Lebanon, which it had occupied for 18 years, apart from an area between Syria, Lebanon and Israel called the Shebaa Farms. Israel remains an occupying power in the Farms, East Jerusalem, the West Bank, Gaza and the Syrian Golan Heights. The UN called upon Israel to withdraw from those territories in 1967 by passing resolution 242. In 1973, it reiterated its demand in a binding UN Security Council resolution that was probably passed under Chapter VII of the Charter, judging by the terminology employed in resolution 338 (during the Cold War, the Security Council refrained from distinguishing Chapter VI and VII resolutions. The former empower the Council to address disputes which in its judgment do not threaten international peace, but which, if continued, are likely to endanger international peace. The latter type of resolution permits the Council to take legally binding decisions under Article 25, directing member states to impose sanctions or use force to maintain international peace). In 2004, the Security Council passed resolution 1559, which calls on "all remaining foreign forces to withdraw from Lebanon," and for "the disbanding and disarmament of all Lebanese and non-Lebanese militias" (the full text is available at http://tinyurl.com/5mkrb). Contrary to what some reports in the media have suggested, this is not a Chapter VII resolution as is clear from the text. Less than a year later, Syria promptly withdrew its armed forces after massive American pressure forced it to in the aftermaths of the assassination of the former Lebanese Prime Minister Rafiq al-Hariri, which is the subject of a UN enquiry.
Israel has said it requires full implementation of resolution 1559 (which implicitly calls on Hezbollah to disarm) before it will agree to a ceasefire. However, it is a bit rich for Israel to make this a condition when the Security Council has passed 1,221 resolutions since resolution 338 in 1973, and 1,317 resolutions since resolution 242 in 1967 -- which Israel has yet to implement (and which it is required to implement by the Oslo Accords).
It should not be forgotten that before the conflict between Israel and Lebanon exploded on the international scene, Israel was battling Palestinian militants in the Gaza Strip over their capture of Corporal Gilad Shalit. Making a mockery of its claims that Gaza is "no longer occupied territory," Israel sent its troops back in to rescue the soldier, killing hundreds of Palestinians in the process and increasing its bombing campaign of the Strip (home to 1.4 million Palestinians, and one of the most densely populated places on earth). Israel then kidnapped half the Palestinian cabinet, alleging they were "terrorists" because they belonged to Hamas, even though that organisation won Palestinian parliamentary elections in January which were deemed to be free and fair.
Like all states, Israel has the right of self-defence. This is not in dispute. The relevant provisions in Article 51 of the UN Charter provide:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
Some argue that Israel was subject to an armed attack (if one accepts the Israeli version of events) and therefore it has the right of self-defence under the Charter. This might appear from a strictly textual analysis of Article 51, without considering the negotiating history of the Charter and the context in which it was drafted.
However, there is substantial opinion, doctrine and state practice on the issue. For instance, it is generally accepted that an "armed attack" must be of sufficient gravity taking into consideration its 'scale and effect' to trigger the applicability of Article 51. For instance, whilst the 9/11 attacks would undoubtedly be classified as an armed attack, and were defined as such by the Security Council, it is difficult to see how the capture of two soldiers in disputed circumstances would do so. Writing in the English-language Turkish daily Zaman, Richard Falk, professor of international law at Princeton University, considered that:
"...this outbreak of major two-front violence is not about Israel's right to defend itself against an enemy that is seriously threatening its territorial integrity or political independence, the only grounds for justifiable war. To treat border incidents, involving a few casualties from rockets and the abduction of a single Israeli soldier by a Gazan militia and two by Hezbollah in south Lebanon, as if it were an occasion of war is a gross distortion of well-accepted international law and state practice. To justify legally a claim of self-defense requires a full-scale armed attack across Israeli borders. If every violent border incident or terrorist provocation were to be so regarded as an act of war, the world would be aflame."
Indeed, Israel has been subject to cross-border raids by Hezbollah and Palestinian militias in the past. It has not always responded with such overwhelming force, which might lead some to conclude that Israel has wider aims in the region such as eliminating Hezbollah altogether or crippling Lebanon, rather than protecting itself. Israel has gone way beyond the scope of self-defence which is subject to the international humanitarian law principles of distinction (making a difference between civilian and military targets), proportionality and military necessity. The context in which the Charter and the Geneva Conventions were drafted is important. Their aim was to ameliorate conflict, not exacerbate it. Said Mahmoudi, professor of international law at Stockholm University, writes:
"The same moral and ethical values that led us in 1945 to put a general ban on the use of force in order 'to save succeeding generations from the scourge of war, which twice in our life-time has brought untold sorrows to mankind', should also guide us to resist expanded use of force. We should withstand any effort to go back to the legal situation that prevailed before the adoption of the Charter even if it is in the name of 'human dignity' and 'decency.' International terrorism and human tragedies should not become an excuse for the unwarranted use of force."
Responses to Terrorism
There are many ways Israel can respond to terrorism, the use of force being only one. Had Israel responded by sending its special forces to snatch two Hezbollah guerrillas as bargaining chips, or negotiating over the release of prisoners (as it has done in the past), or even responding by police action, there would have been little criticism. Ideally, Israel should have asked the Lebanese government to take steps in its own territory to free the captured soldiers before resorting to the use of force, which should always be a measure of last resort. If the Lebanese government then failed to act, Israel would be justified in taking proportionate measures to free its soldiers.
But Israel went way beyond its right of self-defence. By threatening to "turn back the clock in Lebanon by twenty years," Israel risks being accused of committing an act of aggression, with all that entails - such as being accused of war crimes and crimes against humanity, which involves individual criminal responsibility. Worse still, Israel's over-reaction could give its enemies an excuse for all-out war by using Lebanon as a battlefield, which if not contained quickly could engulf the entire region.
2. Said Mahmoudi, "Self-Defence and International Terrorism" 48 Scandinavian Studies in Law (2005), p. 212.
* Victor Kattan is the director of Arab Media Watch and visiting fellow at a leading British institute of international law.
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