I have chosen to respond to Professor Michael Kelly’s article on “Israel v. Hezbollah: Article 51, Self-Defence and Pre-emptive Strikes” because I do not agree with all he has to say on the matter. In particular, I dispute both his understanding of the facts and the scope of Article 51 of the UN Charter regarding the right of individual or collective self-defence if an armed attack occurs against a member of that body.

The facts which led to the deaths of eight Israeli soldiers and the capture of Ehud Goldwasser and Eldad Regev are unclear. Israel claims that the casus belli was a cross-border attack by Hezbollah into Israel. However, according to Hezbollah, Israel initiated the conflict by sending its soldiers into Ayta al-Sha'b, a Lebanese village just north of the Israel-Lebanon border. Whilst these facts may be contested, what is not in dispute is the fact that this is a frontier incident between a state and a non-state actor.

In Nicaragua v USA the World Court specifically excluded ‘mere frontier incidents’ from the scope of an “armed attack” (one reason for this, one might surmise, is because of the inherent difficulty of ascertaining culpability in cross-border disputes). Therefore, even if one believes the Israeli version of events it is difficult to understand how the capture of two Israeli soldiers by Hezbollah would amount to an armed attack justifying the wholesale bombardment (and possibly invasion) of the Lebanon. As professor Richard Falk wrote in the leading English-language Turkish daily Zaman:

“…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”.

http://www.zaman.com/?bl=commentary&alt=&trh=20060721&hn=34951

Furthermore, it is not entirely clear that Hezbollah initiated the rocket fire or whether this was in retaliation to Israel’s reprisals against Lebanon and its people. In fact, the bombing of Lebanon’s ports, bridges, motorways, power stations, Beirut neighbourhoods (in both Christian and Muslim areas), mosques, churches, the airport, a lighthouse, hospitals, and people fleeing in their cars could be described as an act of aggression prohibited by Article 2 (4). Israel’s chief of staff, Dan Halutz, was quoted on the record as saying that this was an attempt by Israel to “turn back the clock in Lebanon by twenty years”. In fact, the term ‘aggression’ was how the Chargé d’affaires of the Permanent Mission of Lebanon to the UN described Israel’s actions to the Security Council on 17 July:

“The Lebanese Government announced from the first instance when the events broke, that it had no prior knowledge of what happened. Nor did it endorse the operation carried out by Hizbollah, which led to the abduction of the two Israeli soldiers. That did not stop the aggression from escalating. Under no circumstances does Israel have the right to destroy Lebanon, displace its people and demolish the country's infrastructure. This experience forces us, more than ever before, to insist on the right of the Lebanese Government and its obligation to defend Lebanon and protect its citizens against aggression or threat. Lebanon cannot re-emerge if its Government is the last to know and the first to be held accountable”.

http://domino.un.org/unispal.nsf/22f431edb91c6f548525678a0051be1d/e9d436d243cb1548852571b000516cf3!OpenDocument

Whilst this statement does not absolve the Lebanese government of complete responsibility, it should be recalled that Israel did not give Fouad Siniora’s government any opportunity to investigate, arrest and detain the alleged Hezbollah suspects in an attempt to release the detainees before resorting to the use of force, which should always be a measure of last resort. I also question whether an act carried out by a group of individuals could amount to an act of state for the purposes of international law. Rather, it could be argued (and this is perhaps how it is perceived by many in the Arab world) that the abduction was used as a pretext by Israel to put into effect long-term military plans (that were probably prepared in advance) to crush Hezbollah once and for all.

Even if one accepts that Israel’s aggressive tactics in Lebanon are legitimate, that it was subject to an armed attack and therefore covered by Article 51, its actions must be both proportionate and necessary. In the Caroline incident, US Secretary of State Daniel Webster called upon the British government to show a “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”.

As a regional superpower, Israel had plenty of means and the time necessary to respond to Hezbollah’s provocation in any manner it sought fit (if one accepts that Hezbollah started the conflict). Its existence - in contrast to Lebanon’s - is not at threat. It would seem to me that Israel simply did not have to react in the way it did. Instead, it deliberately chose to up the ante. In the past, Israel has negotiated with both Hezbollah and Palestinian guerillas over prisoner exchanges. This time, for whatever reason, Israel chose to respond differently. As a result, there is a risk that what began as an insignificant incident (bearing in mind that these events occur with relative frequency in the region, as it did in Gaza the week before) could risk leading to all-out war, which if not contained quickly could engulf the entire region (as Syria has a defence pact with Iran). The whole raison d’être of the Charter is to prevent the scourge of war “which twice in our life-time has brought untold sorrows to mankind”. By lowering the threshold of what amounts to an “armed attack”, we risk going back to the legal situation that prevailed before the adoption of the UN Charter in what one US Senator predicts could be World War Three.

I would proffer that the lessons to be learned from this episode, contrary to what is expressed by Professor Kelly, is that states should think seriously before going to war and explore all avenues before countenancing the use of force. I disapprove of his statement that the lesson from all this is “to be careful which beehive you whack with a stick. The larger one will produce more stings in response and Article 51 allows for that”. Instead I would agree with Jean Allain’s thesis that international law in the Middle East “is closer to power than justice”. Perhaps if the Charter rules were applied with equanimity in the Arab world, many of these so-called terrorist/resistance movements that plague the region would not exist in the first place? It should be not be forgotten that whilst it is easy to start wars, it is difficult to end them, as is clearly evident from our country’s involvement in Iraq and Afghanistan where our troops are still fighting and dying.

Victor Kattan is a Visiting Fellow at British Institute for International and Comparative Law, Russell Square, London, United Kingdom and is the assistant editor of the Yearbook of Islamic and Middle Eastern Law. The views expressed here are his own and do not necessarily reflect those of the institute. Email: v.kattan@biicl.org

August 01, 2006