14 Jul Is The Israeli-Hezbollah War an International Armed Conflict?
Here is a nice summary of the present conflict and some basic information about Hezbollah from the Council on Foreign Relations website. Bottom line is this is a political organization in Lebanon that has twenty-three seats in the 128-member Lebanese Parliament and two ministers in the Lebanese government. In this sense it is clearly not like Al Qaeda, but it is not like the Taliban in Afghanistan either.
So are the attacks and counter-attacks between Israel and Hezbollah an international armed conflict? How do we label this war? Is it really a war between two nations or is it more akin to a war between a terrorist organization and a nation state. I am having a hard time getting my head around how to conceptualize this as a matter of international law. Comments most welcome.
UPDATE: Also check out this press summary of the debate at the United Nations. A Lebanese representative described it as a “widespread barbaric aggression waged by Israel at this very moment against my nation” while the “Israeli Government ha[s] held Lebanon responsible for Hizbollah’s acts, even though the Lebanese Government … declared that it was not aware of the incident, that it did not take responsibility for it, and did not endorse what had happened.”
Roger, these are defintely the tough questions that are on the table. I make no claims at answers but I’ll do some thinking aloud (well, figuratively aloud) to pick up the conversation you started. Without revisiting the issue of when/whether combatting a terrorist organization would be international armed conflict (shades of Hamdan), I’ll comment on whether state responsibility can be ascribed to Lebanon for the actions of Hezbollah (of course there’s also the issue of Iranian and Syrian repsonsibility but I will also set those aside for now). The argument against ascribing responsibility to Lebanon is that Hezbollah is an indepndent group that is more like an insurgency within Lebanon than “part” of the Lebanese government (parliamentary seats notwithstanding). This is because the writ of Lebanon’s central government simply does not run in the south, parliamentary seats or no. Hezbollah has effective control and is acting based on its (and possibly’s Iran and/or Syria’s) own wishes. Lebanon is unable to stop Hezbollah and it should not be held responsible for Hezbollah’s acts. The argument in favor of Lebanese responsibility highlights the fact that the Lebanese government has allowed Hezbollah to become intertwined with governmental organs (seats in the Parliament, government… Read more »
Maybe this misses your point, Chris, or perhaps it is too simplistic an analysis on my part, but why would you necessarily need to impute liability to Lebanon for the actions of Hizbullah by looking soley at the actions of the Lebanese? Hasn’t Israel rendered the Lebanese government de facto responsible by attacking the airport at Beirut and infrastructure between Lebanon and Syria. Wouldn’t those attacks against the infrastructure of another sovereign state qualify this as an international armed conflict?
Nonliquet:
I understand your point and, yes, once Israel attacked Lebanon itself it was an attack by one state upon another.
However, I was interested in the issue prior to that which is whether Israel would have been justified, as a legal matter, in blaming Lebanon for the rocket attacks.
If so, then Israel’s bombing of Lebanon may itself be legally justifiable. (I say “may” because issues of proportionality would still need to be assessed.)
If not, then there is an international wrong by the state of Israel vis a vis the state of Lebanon.
Professors Alford and Borgen, I wish I could comment in depth (as this is one of my areas of study), but many other things pressing. I just want to note a few things. First, the Lebanese military is far too weak to disarm Hizbullah. Media pundits seem hell-bent on dragging Iran and Syria into the conflict. Few people in this country have studied Hizbullah (or Hamas for that matter) in depth, hence much of what passes for expertise is just (pardon me) bullshit. As a matter of fact, most Americans, academics included, lack a basic grasp of the history and politics of the Middle East, let alone the history of the Israeli-Palestinian conflict. Notice how dead civilians are talked about: We ‘humanize’ the Israeli death figures (a grandmother and grandson) while the dead Lebanese and Palestinians are cited as mere statistics (over 60 dead). Why is it never reported that this current round of military conflict began when the Israelis shelled a beach in the northern Gaza Strip, killing three children and other civilians? The kidnapping of an Israeli soldier is invoked as the precipating event, but that is simply not the case. Hamas said it would respond to the… Read more »
Legally speaking isn’t the Lebanese government legally responsible for actions occurring within its territory? (Trail Smelter).
If Hizb. is a non-state armed group and the Lebanese government is incapable of preventing cross border attacks I believe Israel is justified in use of force against Hizb. but not the Lebanese govt.
If the Lebanese government has provided even passive support for Hizb. however, I thought the supportive government was liable for the actions of the armed group located on its territory thus justifying Israeli action against both Hizb. and the Lebanese government?
Also, has Israel reported its actions to the SC as per Art. 51?
Roger, I’ve posted a response to your question, solely on the IHL, jus in bello issue on my blog, here.
Professor Borgen, thank you for the clarification. If I now understand your reasoning (and to oversimplify it in the process): In your first comment you proposed a binary. The first is if Lebanon could exercise control and failed to exercise that control then it is liable. The second is if Lebanon could not exercise control then it is not liable. If (1) is true then Lebanon can be attacked. If (2) is true then only Hizbullah can be attacked. But what if there is a third which is: (1) The government of Lebanon is a separate and distinct entity from Hizbullah and (2) the government of Lebanon cannot control Hizbullah (3) however, bureaucratic minsitries and instrumentalities of commerce have a commingling of Hizbullah/Government control. If those conditions are true, then can those mixed targets be attacked? Let me make it a little more specific. For example, you have the Beirut airport that is controlled by the Lebanese government. However, Israel claims shipments of arms from Iran and Syria are coming in through that airport which go to Hizbullah. Lebanon cannot shut down those shipments to Hizbullah without creating a civil war. Otherwise, Lebanon has complete control over the airport and… Read more »
Chris, Your analysis of the law on state responsibility is to me of great interest, especially as it intersects with the jus ad bellum and the jus in bello. The road you take is one that I fundamentally methodologically disagree with, however, even though I think most scholars (and the ICJ in Oil Platforms, for example) would instinctivelly opt for your approach. Your approach basically joins the law of state responsibility with the law on self-defense, thereby disregarding the distinction between primary and secondary rules, with the law on self-defense belonging to the former, and the law on state responsibility to the latter. I personally don’t think it is necessary for a State to be responsible for an act of a non-state actor operating in its territory, in order for another State to lawfully respond in self-defense to an attack by that non-state actor. If Israel could take Lebanon to the ICJ, for example, I don’t think Lebanon should be held responsible for abducting the two soldiers (Article 9 of the ILC Articles would not be sufficient – that is not the sort of situation contemplated by the commentaries, cf. the Yeager case before the Iran-US Claims Tribunal). However, I… Read more »
It seems to me that there are quite a few mixed-up concepts in the comments so far. First, as to IHL, it matters only if the armed conflict is between two or more states. This could have been the case at the stage where only Hezbollah was doing the fighting, but then only on the grounds that their actions were attributable to Lebanon. But seeing as Israel has now attacked Lebanon (and not just its territory, but also installations of the state), this question is largely academic. There is now an international armed conflict in the sense of IHL. This does not mean that Israel has in any way rendered Lebanon de facto responsible for Hezbollah’s actions (contra Non liquet). It couldn’t possibly do that. Israel has created an international armed conflict, but it has in no sense determined the – jus ad bellum – question of whether it was right to attack Lebanon, on the basis of the right of self-defence, Lebanon being responsible for the ‘armed attack[s]’ (Article 51 of the Charter) of Hezbollah. (This is assuming that the Article 51 claim rests on state responsibility for the armed attack. The ICJ has said as much also in… Read more »
As usually, I find myself in agreement with what Tobias says. Lebanon is responsible for failing to discharge its positive, due dilligence obligation to prevent Hezbollah from attacking Israel. It is not, however, responsbile for the attacks by Hezbollah themselves. How this analysis of state responsibility figures into the jus ad bellum is a different matter. Take 9/11 and Afghanistan as an example. Suppose that the US action in Afghanstan was lawful as a matter of self-defense, regardless of the Security Council. As far as I’m concerned, that does not automatically mean that Afghanistan was (and still is!) responsible as a state for the 9/11 attacks. It is responsible “only” for allowing Al Qaeda to operate from its territory. Or take the fact of the Caroline and transpose them to the present as another example of a lawful instance of self-defense against an attack by a private actor, even if it impacts another state. As Tobias notes, a similar factual pattern emerged in Congo v. Uganda, but the ICJ decided to avoid the issue, contrary to Judges Simma and Kooijmans. The lawfulness of the present Israeli actions depend on Israel’s respect for the principle of proportionality, which exists separately both… Read more »
‘The lawfulness of the present Israeli actions depend on Israel’s respect for the principle of proportionality, which exists separately both in the realms of the jus ad bellum and in the jus in bello.’ That speaks volumes. I cannot see how anyone could make an argument that Israel has any respect whatsoever for the principle of proportionality. Let’s not forget what is still going on in the Gaza Strip. No small bit of irony in Israel calling upon Lebanon to recognize UN resolutions when Israel has historically demonstrated contempt for same in its own case. And I’m touched about all of the concern for the question of Israeli self-defense: where is/was such concern for the Palestinian right to self-defense, particularly given the fact that they have been denied the right to self-determination and the asymmetrical nature of the conflict in general. As Richard Falk reminds us, ‘Since 1967, Israel has administered a military occupation of the West Bank, the Gaza Strip, and East Jerusalem in consistent and relentless defiance of the overwhelming will of the organized international community.’ Why the comparative silence about the applicability of International Humanitarian Law in the Occupied Territories? Fortunately, some folks care about such things,… Read more »
I find the comments very interesting and enlightening. A few comments and queries based on the discussion so far: First, Marko writes: I personally don’t think it is necessary for a State to be responsible for an act of a non-state actor operating in its territory, in order for another State to lawfully respond in self-defense to an attack by that non-state actor. I agree but the crux of my comment has to do with the question of who Israel may claim a right of self-defense against. As I said, if responsibility can only be imputed to Hezbollah then only Hezbollah’s assets may be attacked. This would call into question the bombing of, say, the Beirut airport. That is not a Hezbollah asset; bombing its runways is clearly an act against the government of Lebanon as a whole. If Israel is claiming a right of self-defense vis a vis the government of Lebanon, then it needs to be shown that that government can be reasonably viewed as responsible for the attack. (This also applies to Marko’s later comment regarding Afghanistan: if Afghanistan is “only” responsible for allowing al Qaeda to act, then what is a proportional response? Did the U.S.… Read more »
One other point: regardless as to the proper party against whom Israel may claim a right of self defense–only Hezbollah or Lebanon more broadly–I do think there is a serious question as to the proportionality of the response undertaken.
Thank you all for your latest comments. I quite agree that there is a serious proportionality problem on any view. I am not at all sure I agree with Mr Milanovic’s interpretation of Article 51, under which the ‘armed attack’ does not have to come from a state for there to be a right of cross-border self-defence, but I do accept that such an argument can validly be made, and all the more so with the support of recent state practice (including the criticism of the Israeli actions by other governments, which has largely focussed on the proportionality point). For my part, I would think that, because Article 51 operates as a justification for a breach of Article 2(4), any case of self-defence must first engage Article 2(4). This is not necessarily the case, as where the acts of self-defence are directed against private aggressors in the defender’s own territory, in occupied territory or on the high seas. Also, I take it that State C cannot act in self-defence against State B, if State A was the original aggressor and unless State B itself attacks State C. If so, why would C’s right of self-defence require any less than a… Read more »
Apologies for repeating the ‘forcible countermeasures’ point. I meant to delete the second reference after adding the first, but forgot.
I have a question regarding the analysis that is being developed in this discussion. As I understand it, following Marko Milanovic, there is a distinction between Hezbollah’s actions being attributable to the state of Lebanon and the state of Israel having a right to act in self-defence against Hezbollah in a way that impacts on Lebanon. (I realize that not all participants in the discussion share this view.) But then there seems to be a separate implication that on this analysis, only Hezbollah’s assets should have been attacked, and a related suggestion that by attacking “non-Hezbollah” Lebanese assets, Israel has widened a non-international armed conflict between Israel and Hezbollah into an international armed conflict between Israel and Lebanon. Hence various posts talk about attacking “Lebanon itself” or attacking state infrastructure etc. However is it not the case that any Israeli military action within Lebanese territory, even against purely Hezbollah targets, would initiate an international armed conflict if it was carried out against the wishes of the Lebanese government? In that case, the key question as regards the nature of the conflict (international vs. non-international) would not be the nature of the targets struck by Israel but whether the Lebanese government… Read more »
Anthony, The way I see it, the existence (or not) of an international armed conflict is separate from the legality of Israel’s use of force in the first place. It is an entirely factual matter, and as soon Israel attacked assets of the Lebanese government and protracted armed violence occurred, a state of international armed conflict came into being. Now, you make quite a good point – any response by Israel to the attack by Hezbollah necessarily impinges on Lebanese sovereignty. My take is that Lebanon would have to live with that as it is either unable or unwilling to deal with Hezbollah itself. The main issues, again, are necessity and proportionality. Even though Israel would be within bounds of IHL/jus in bello to attack Lebanese military facilities, even those unaffiliated with Hezbollah in any way, it would violate the jus ad bellum if it did so, as that would not be an act of self-defense against Hezbollah. I do want to make another point, though – is not at all clear what is the legal justification professed by Isreal before the international community – is it self-defense against a terrorist non-state actor, or is it self-defense against an armed… Read more »
Does it make a difference to any of this if the two soldiers were abducted on Lebanese soil rather than Israeli or disputed territory? I ask this per the account in Asian Times online: ‘It all started on July 12 when Israel troops were ambushed on Lebanon’s side of the border with Israel. Hezbollah, which commands the Lebanese south, immediately seized on their crossing. They arrested two Israeli soldiers, killed eight Israelis and wounded over 20 in attacks inside Israeli territory.’
Given the fact that the Lebanese, whether they support Hizbullah or not, tend to be grateful for their role in compelling the Israelis to leave their country after a twenty year occupation, the abduction of these soldiers in Lebanon might be seen as an act of self-defense, yes? How is this understood from the perspective on international law? How should have Hizbullah dealt with the incursion onto Lebanese land by the Israelis?
please read ‘of international law’
Just as a note responding to the very interesting comments of the day. Tobias, I was in no way suggesting that jus ad bellum could be assumed merely based on the fact that there was an international armed conflict. Please pardon the lack of clarity in my writing. What I was confused about, and what was subsequently corrected by Professor Borgen, was that I believed the jus ad bellum argument had no bearing on the status of whether there was an international armed conflict. Professor Borgen pointed out that he was asking a different question. As you and Marko have subsequently established, the facts on the ground rather than the jus ad bellum would be determinative of the conflict’s status. And that was really the main point my question was driving at. (Part of me suspects that I didn’t clarify anything at all in that paragraph. Let’s just say I agree with you.) Marko, I agree with your analysis about the lawfulness of attacking a third-party terrorist group when it might impinge upon the sovereignty of a country. Professor Borgen suggested an interesting development of that theory in state practice with Afghanistan. I also think you can see some of… Read more »
Marko – With regards to Israel’s justification I think you are somewhat mistaken in your categorization. Israel didn’t hold Lebanon responsible for the abductions, rather it blamed Lebanon for not acting against Hizbullah earlier as Lebanon was required to by UNSC 1559. As such it seems to fit more into the category of arguments based on a state failing to exercise due diligence, rather then a state initiating an attack. In any event, whether Israel’s attack on Lebanon (as a state) can be adequately described as self-defence is a moot point. In a number of statements throughout the crisis, and indeed for some time now, Israeli officials have claimed to act in self-defence against a non-State actor. While this may be against the formalism expressed by the ICJ in recent opinions, I think it is in line with the customary development of the law of self-defence. While disallowed by Nicaragua throughout the 1990s there have been numerous examples of states invoking force in self-defence against non-state actors. Above, Tobias notes the treatment of previous Israeli actions which were criticized for being disproportionate. This is a significant shift from how similar behaviour was treated in the 1970s and 80s. Moreover, in… Read more »