Question on 2007 Strike Against Syria and Anticipatory Self-Defense

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

There was, of course, a great deal of international opinion offered concering the legality of the Israeli strike on the Osirak reactor in 1981.  But as two recent articles stress — see this piece by Georgetown student Leah Schloss and this piece by Australian professor Andrew Garwood-Gowers [which can also be found here if that link doesn't work] – there has been virtual silence from the international community about the 2007 strike on the  Syrian nuclear facility at al-Kibar.

Is that account accurate?  I assume that because Israel has never acknowledged its purported involvement, it has also never offered an international law defense of the operation.  (True?)  Is it also the case that virtually no other nations have said anything one way or the other about its legality?

If so, what, if anything, does the 2007 operation portend for the development of the law of self-defense?  I’d welcome reactions to the Schloss and Garwood-Gowers articles and the question more generally, particularly from those who do not assume that all anticipatory strikes violate the Charter.

[UPDATE:  I'd also welcome comments on a broader question epitomized by this example--one that it appears will be increasingly relevant as time goes on:  What role, if any, can covert actions play in the creation or evolution of custom if no nation acknowledges the action in question and therefore there is no agreed upon version of the relevant facts and arguable legal justifications?  Does the answer to this question depend upon the nature, if any, of objections to the action?  What if there comes to be a generally accepted view of what "really happened," based on leaks and the like, but still no official account or acknowledgement, let alone adjudication?]

Thanks in advance.

10 Responses

  1. Not all anticipatory strikes violate the Charter. By now, there is a well established rule of customary international law that U.S. and her allies are allowed to use military force for any reason whatsoever, and that the rest of the states are not.

  2. Mihai,

    Your snarky comments are not helpful at all.  Marty is asking a serious question and you only lower the discussion with these sort of comments.  That may be appropriate at other blogs, but we strongly discourage this sort of behavior at Opinio Juris.

    Roger Alford

  3. Marty,
    Thanks for raising this issue. I’d agree that the basic problem here is the near-total silence by all actors concerned. In the absence of any concrete legal claims articulated by either Syria or Israel, it is very difficult to deduce opinio juris for the purpose of establishing a shift in customary law. Bearing in mind the factually unclear nature of the events, and the deliberately ambiguous position adopted by the two main relevant states, I would find it very hard to say that the lack of significant reaction by other states could be considered as either approval or condemnation of the Israeli action. I would thus say that the normative implications of the incident are (for the time being) nil, while bearing in mind that it could always be reinterpreted in the light of future developments. After all, new custom frequently starts off as a breach of old custom.

    As for the further point you make in your update, I’d say that opinio juris by definition requires some form of expression. The process of custom formation is a fluid one, but it must also be a public one, since it necessitates the articulation of legal rules by some states and reactions thereto by others. In short, so long as a particular practice remains covert (in the sense that it is not publicly justified, even if everybody knows it takes place), it cannot have normative value.

  4. Tom Ruys says in his book — echoing Marko — that “[i]n all, the uncertainty of the precise facts, the absence of legal justification on the part of Israel and the lack of a third-State reaction by and large disqualify Operation ‘Orchard’ as a valid customary precedent.”  He also notes that a group of U.S. congressmen introduced a resolution supporting Israel’s right of self-defense in the House, but it was never voted upon.

  5. @Roger
    The whole question of anticipatory strikes is preposterous. Iran cannot attack Israel anticipatory, despite the fact that Israel threatens her with an attack soon. Iraq could not attack U.S., to avoid the attack in 2001. Thus, if there is such a thing as a right to anticipatory use of military force, this right is reserved to U.S. and her allies. QED.

  6. I wrote this ASIL Insight on the topic a while ago:

  7. In light of the drumbeat for strikes on Iran, I too think that Marty raises some important questions. For the advocates of preventative self-defense indeed do point to the absence of condemnation after the strike on Syria as somehow indicating a growing acceptance of the concept and perhaps its emergence as a principle of customary international law. (I would pause here to stress that while Marty refers in his post to those who accept some form of “anticipatory self-defense”, this should be distinguished from “preventative self-defense” which was at the core of the so-called Bush doctrine. The strike on Syria, and any strike on Iran today, falls within the category of preventative self-defense, being a use of force in response to the possible materialization of a perceived risk in the future, in contrast to anticipatory self-defense, which is a use of force necessary to prevent or defend against an imminent armed attack – an attack that, in Dinstein’s words, is already irrevocably in motion). In light of this use to which the Syria attacks are being put by the champions of the Bush doctrine, I think that the arguments made by Marko and Kevin (citing Ruys) are an important response to this idea that silence denotes acquiescence or acceptance. In particular the fact that the perpetrator has never acknowledged the action far less articulated a legal justification cast in terms of self-defense eviscerates the position that lack of condemnation can be equated with the acceptance of a new norm regarding the use of force. 

    This of course leads to Marty’s second question, as to whether covert action can ever form the basis for developments in customary international law, which I think is really intriguing. At first blush, it seems that it will usually (thought admittedly not always) be the case that one of the primary reasons for acting covertly, is an underlying recognition that the action being undertaken is inconsistent with international law, or at the very least accepted international norms of behavior. Even if over time the action – say the use of intelligence agents to interfere in local elections of other states – was emulated by a growing number of other states, such that one had some basis for suggesting that the conduct had come to constitute widespread state practice, surely the fact that it continued to be only undertaken covertly would reflect precisely the opposite of opinio juris – that while states did it, they recognized that it was unlawful, and were doing it despite the law not because of it. But that is just a preliminary impression, and I think it deserves more discussion.

  8. Interesting topic! Have one minor issue: The Israeli strike on Osirak reactor was in 1981, not 1991.

  9. Fixed the typo, thanks, M.

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