The Use of Force in International Law: Whether Israel acted within the law in the Lebanon War of 2006

July 12th 2006, 09:05 local time: Hezbollah launched diversionary rocket attacks on the Israeli settlements of Zar’it and Shlomi. Following these attacks Hezbollah then attacked two armoured vehicles, with the intention of capturing military personnel as prisoners. This was then followed by other skirmishes at border posts which again Hezbollah was attacking and one failed rescue mission launched by the Israeli Defence Force. What followed from this first attack would be known as the Israel-Lebanon war of 2006, lasting thirty-four days and causing the deaths of 1164 people and thousands more injured.

What is of importance, for this writer, is the use of force between states. Particularly the severity of that force when compared to the threat perceived. Another point worth mooting is the international community’s response to conflicts and the differing attitudes towards those involved by differing states. This gives the impression that, diplomacy may in fact legitimise a conflict even when it is not in fact legal, or has encroached on Jus Cogens norms.

In the instant case, Israel sought to defend its sovereign land against an act of aggression. What is interesting here is that Hezbollah is not the Governing political party of Lebanon. Instead it could be likened more to a revolutionary group or even a terrorist group. What Israel used to allow war to be declared on Lebanon was the following. There were two ministers from Hezbollah sitting in the Lebanese cabinet at the time, and secondly that the attacks had originated from Lebanon.

Article 2(4) of the United Nations Charter states:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Although referring to ‘members’ the article has been confirmed as being a rule of customary international law applying to all states. As too, by proxy has Article 51 of the United Nations Charter, which states:

“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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

The Nicaragua case was greatly important as it then made countries that were not party to the UN Charter subject to these fundamental rules of how states should interact with another and avoid military conflict.

Moving back to the instant case, Article 51 allowed Israel to launch their counter-attack on Lebanon, which they began on the same day; after an emergency meeting of Parliament. The initial counter-attacks were air strikes at the heart of Lebanon’s infrastructure and suspected Hezbollah bases. The main sites being bridges, roads and Beirut airport.

It has been argued that Article 51 shouldn’t have been able to have been invoked based on the fact that the attacks were not undertaken by a state. However, there has been some discussion among academics on whether in a post 9/11 world, attacks by non-state actors can be applied:

“Whether the law has changed in the aftermath of the 9/11 attacks so as to apply to non-state actors according to state practice and opinio juris is open to debate. It should be stressed that the practice by states like Israel, the U.S. and even the UK, as highlighted in articles by legal scholars, are not universally accepted as representing the current state of international law on the use of force and self-defense. On the other hand, the fact that the G8 referred Hezbollah specifically, rather than Lebanon, may be evidence of a new custom emerging. In any event, for the sake of argument, it will be assumed that Article 51 permits a state to defend itself in the event of an armed attack by a non-state actor — but only if there is a certain link with a state.”

During the course of the following thirty-three days, Israel continued its tactic of air strikes upon Lebanon, as well as having a Land, Sea and Air blockade of the country. It also increased the number of IDF soldiers at the border and crossed into Southern Lebanon. Hezbollah on the other hand, were primarily attempting to defend against the Israeli incursion into the Lebanese territory, and sporadically fired missiles into the North of Israel with varying levels of success but achieving nothing like the sort of damage Israel was causing.

During the conflict various nations affirmed Israel’s right to self-defence, with George W. Bush claiming it was “Part of the war on terror”. Hezbollah had support in the International community also, but from neighbouring countries with a vested interest in the outcome, and other countries supported Lebanon and criticized Hezbollah.

Some criticism that has befallen on the extent of Israel’s actions have been due to the targets for its air-strikes, and others of a political nature because Israel had just launched Operation Summer Rains; a military campaign in Gaza two weeks prior to the Hezbollah attacks. An example of the feeling being found here:

“For many in Israel, the two fronts are conjoined in a war against a unified “axis of terror and hate created by Iran, Syria, Hizballah and Hamas,” in the words of Tzipi Livni, the Israeli vice prime minister and minister of foreign affairs, “that wants to end any hope for peace.”

However, it would appear that this criticism was based on the fact that it appeared that Israel had ‘taken a handgun to a knife fight’. Essentially that their reaction to the initial Hezbollah attack was too severe. The response being that the air-strikes and military incursion into Lebanon were anticipatory of another wave of attacks.

The doctrine of ‘Anticipatory self-defence’ has been part of International Law for more than one hundred years and has allowed a series of attacks to be made legal on this basis. The leading case being, The Caroline Case  which concerned British Forces attacking a US ship, firing it and sending it over Niagara Falls to it’s destruction. During this attack, two American nationals were killed and A British man was detained. What resulted was a series of correspondence between the countries in an attempt to secure the release of the prisoner. During these discussions the U.S. Secretary of state said the United Kingdom had to show the existence of:

“…necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities in Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.”

Applying this to the instant scenario it also allows for the use of force against Lebanon based on the actions of Hezbollah, given that Israel would be justified in believing that it could not rely on Lebanon’s military to intervene. A point worth illustrating given that the Lebanese government did openly condemn the initial attacks by Hezbollah, making clear that those were being done without the consent or knowledge of the state of Lebanon.

In the Oil Platforms Case U.S. ships were attacked in Kuwaiti territorial waters and three and four days later the U.S. attacked Iranian oil platforms, claiming that these acts were in self-defence and therefore did not violate a Treaty between the U.S. and Iran.

During the judgement it became clear that in order to invoke the right to self-defence in customary international law the main issues of concern were, necessity and proportionality:

“The United States claims that it considered in good faith that the attacks on the platforms were necessary to protect its essential security interests, and suggests that “A measure of discretion should be afforded to a party’s good faith application of measures to protect its essential security interests”. … The Court does not however have to decide whether the United States interpretation of Article XX, paragraph 1 (d), on this point is correct, since the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any “measure of discretion”. …”

“… One aspect of these criteria is the nature of the target of the force used avowedly in self defence … the United States has … presented evidence directed to showing that the platforms collected and reported intelligence concerning passing vessels, acted as a military communication link coordinating Iranian naval forces and served as actual staging bases to launch helicopter and small boat attacks on neutral commercial shipping …”

The U.S. failed to invoke self-defence for these attacks, and given the similarities between this case and the instant scenario it is hard to see why the Israeli attacks were allowable in International law. Perhaps one of the reasons could be the relatively short time of the conflict? If that is to be the case then, we must turn to The Armed Activities Case. This case was concerned with Ugandan forces having an extended military incursion in the DRC, without the permission of its government.

In this case, similar to the instant case; Uganda claimed to be fighting rebels who would seek to enter its own sovereign territory and claimed self-defence. In the judgement a number of reasons were cited for the exclusion of Ugandan military forces but in response to self-defence, the length of time seemed to be paramount.

Israel, being allowed to invoke Article 51 was probably based upon a number of factors which together create the jurisprudence that allowed its actions to be within the law. This is expressed as a legal doctrine; the Nadelstichtaktik (Needle Prick) doctrine basically takes the concept of an individual attack as being like a needle pricking a person. Individually these are not very harmful, merely an annoyance. However, after many of these it is a much more painful experience. Meaning that an individual terrorist attack upon a state can’t be called a state’s act of aggression, but a number of these could therefore be amalgamated together to having the same severity as one.

In 1974 the UN General Assembly adopted a resolution which defined aggression. The issue with this was that it did not universally bind all states and has since been used merely as persuasive of how aggression should be defined.

Turning to the question at hand, which is: the use of force, and whether Israel acted within the law in the Lebanon War of 2006. The answer is based on the theories, cases and treaties above. The answer however is not complete, due to the very nature and size of international law. It is also based on diplomacy, how the images are displayed to the world at large in the media and how actions are commentated on.

In this case it is obvious – given it occurred four years ago that, Israel was within its rights to invoke Article 51 (right to self-defence) against Lebanon based on the actions of a separate group working to its own agenda and without notice. This will be based most heavily, this writer would say on the Nicaragua Case and The Armed Activities Case. These cases gave the ratio decidendi that it appears has followed in the minds of those looking into the actions. Also worth pointing to is the Nadelstichtaktik doctrine. This is where the media’s influence begins to become apparent. Without previous Hezbollah attacks, and the publicity they received, the thirty day war may just have been called illegal.

*It is worth noting that other central issues could not be included in this work, such as the question of Civilian sites being attacked, and the question of War Crimes. Articles on these topics are included in the bibliography for further reading.

Bibliography

Text Books

• Ian Brownlie, Principles of Public International Law, (7th edition OUP, Oxford 2008)
• Antonio Cassese, International Law, (2nd edition OUP, Oxford 2005)
• Malcom N. Shaw, International Law, (5th edition CUP, Cambridge 2003)
• David Harris, Cases and Materials on International Law, (7th edition Thomson Reuters, London 2010)
• Ian Brownlie, Basic Documents in International Law, (5th edition OUP, Oxford 2002)
• Judith Palmer Harik, Hezbollah: The Changing Face of Terrorism, (2nd edn I.B. Tauris & Co Ltd, London 2005).

Journal Articles

• Human Rights Watch, ‘Why They Died: Civilian Casualties in Lebanon During the 2006 War’ [2007] Volume 19, No. 5(E) <http://www.hrw.org/en/reports/2007/09/05/why-they-died-0> accessed November 2nd 2010.
• Victor Kattan, ‘Israel, Hezbollah and the Conflict in Lebanon: An Act of Aggression or Self-Defense?’ 14 (1) Human Rights Brief (2006), pp. 26-30.
• Robert Blecher, ‘Converging Upon War’ [2006] MERIP <http://www.merip.org/mero/mero071806.html> accessed 4 November 2010.
• N M Feder, ‘Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack’, 19 N.Y.U. J. Int’l L. & Pol. 415 (1986- 1987).
• Amnesty International – AI Index: MDE 18/007/2006, Israel/Lebanon–Deliberate Destruction or Collateral Damage? Israeli Attacks on Civilian Infrastructure, <http://www.amnesty.org/en/library/info/MDE18/007/2006> (August 23, 2006).
• Jörg Kammerhofer, ‘Uncertainties of the Law of Self-Defence in the United Nations Charter’, 35 Netherlands Yearbook of Int’l Law 143, 178- 187 (2004).
• Iain Scobbie, ‘An Intimate Disengagement: Israel’s withdrawel from Gaza, the Law of Occupation and of Self-Determination’,Yearbook of Islamic and Middle Eastern Law, Volume 11 (2004-2005). Brill, pp. 3-31.
• Stephen Kay, ‘International terrorism: a Special Tribunal for Lebanon – Syria, Lebanon, and the assassination of former Premier Rafik Hariri’, UCL Juris. Rev. 2007, 13 Supp (Supp), 11-26.
• Paul Salem, ‘The Future of Lebanon’, Foreign Affairs
Vol. 85, No. 6 (Nov. – Dec., 2006), pp. 13-22
• Kimberley N. Trapp, ‘Back to basics: necessity, proportionality, and the right of self-defence against non-state terrorist actors’, I.C.L.Q. 2007, 56(1), 141-156

News Articles

• D Clark ‘How can ‘terrorism’ be condemned while war crimes go without rebuke?’ Guardian (London 31 July 2006) <http://www.guardian.co.uk/commentisfree/2006/jul/31/foreignpolicy.usa> accessed 5 November 2010
• David Frickling, The Guardian, “Amnesty report accuses Israel of war crimes,” <http://www.guardian.co.uk/world/2006/aug/23/israelandthepalestinians.syria> accessed 5 November 2010

International Documents

• Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945 – Aricle 2(4)
• UNGA Res 3314 (1974) Definition of Aggression, UN GOAR, 29th sess, 2319th plen mtg (1974).

Case Law

• Nicaragua Case (Nicaragua v United States) (Merits) [1986] ICJ Rep 94
• The Caroline Case 29 B.F.S.P. 1137-1138; 30 B.F.S.P. 195-106
• Oil Platforms Case (Iran v United States) (Merits) [2003] ICJ Rep 2003 p.161
• The Armed Activities Case (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 2005 p.168

About the author

Graham Kerr is a recent LLB Graduate, currently in the midst of setting up Legal Media Solutions a company aiming to help small legal firms with IT solutions and is currently setting up a new program developed specifically to help those trying to find a Traineeship in Scotland.