Does the Six Day War Support “Elongated” Imminence?

by Kevin Jon Heller

Michael Lewis claims, in his very interesting post, that “it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 ‘imminence’ is broader than Caroline ‘imminence’.” I don’t have time today to address that claim in any detail, but I want to point out — once again using Tom Ruys’ fantastic, and extraordinarily careful, book on Article 51 (pp. 272-80) — that the Six Day War actually provides little support for an “elongated” concept of imminence. To begin with, Israel itself did not claim that it was engaging in anticipatory self-defense:

[T]he justification used by Israel made no reference whatsoever to anticipatory self-defence. Quite the contrary, Israel expressly argued that it had responded in self-defence to a prior armed attack:

[This] morning Egyptian armoured columns moved in an offensive thrust against Israel’s borders. At the same time Egyptian planes took off from airfields in Sinai and struck out towards Israel. Egyptian artillery in the Gaza Strip shelled the Israel villages of Kissufim, Nahal-Oz and Ein Hashelosha. Netania and Kefar Yavetz have also been bombed. . . . The Egyptian forces met with the immediate response of the Israeli Defence Forces, acting in self-defence [in] accordance with Article 51 of the Charter . . .

Subsequently, in the UN General Assembly, Israel shifted to a somewhat different line of argument. It was argued that the blockade of the Straits of Tiran to Israeli ships constituted an ‘act of war’, justifying action in self-defence under Article 51. Thus, after elaborating at length on the imminent peril to Israel’s existence, Foreign Minister Eban concluded that:

The blockade is by definition an act of war, imposed and enforced through armed violence. … From 24 May onward, the question who started the war or who fired the first shot became momentously irrelevant. . . . From the moment the blockade was imposed, active hostilities had commenced and Israel owed Egypt nothing of her Charter rights.

If Israel did not believe — rightly or wrongly — that it was engaged in anticipatory self-defense when it launched the Six Day War, the reaction of the international community can hardly be considered evidence that customary international law accepts an “elongated” concept of imminence. But the international reaction was also far more complicated than Lewis acknowledges (emphasis mine):

A second factor that undermines the alleged precedential value of the Six Day War concerns the reactions of third States in the UN fora. Indeed, an analysis of the debates reveals that not a single UN Member explicity subscribed to the lawfulness of Israel’s actions. A considerable number of States, including Canada, Denmark, Belgium, Norway, New Zealand, the Ivory Coast and Uruguay, argued that it would be useless to try to apportion blame to one party or the other, and instead preferred to focus on finding a peaceful solution for the conflict. The US and the UK followed a similar point of view, and were particularly keen on denying involvement in the Israeli operations. It may also be recalled that when the Soviet draft resolution was voted down in the Security Council, no-one voted against the operative paragraph which ‘condemned Israel’s aggressive activities’: eleven States abstained; four States supported the provision. This muted stance may indicate a degree of sympathy with the Israeli position, yet it seems difficult to deduce a willingness to establish a precedent in support of pre-emptive self-defence, certainly if one takes into account that a second group of States did condemn outright Israel’s actions as a violation of the UN Charter. Apart from the Arab States, the latter group included the Soviet Union, India, Spain, Pakistan, Indonesia, Albania, Bulgaria, Burundi, Belorussia, Czechoslovakia, Guinea, Hungary, Mali, Mongolia, Somalia, Sudan, Ukraine, Tanzania and Zambia. Several of these UN Members publicly fulminated against the possibility of anticipatory self-defence. India, for example, added that the concept of a pre-emptive strike or a preventive war was contrary to the letter and spirit of the UN Charter.

I am not claiming — here at least… — that there is insufficient state practice and opinio juris to establish a concept of imminence that goes beyond the traditional Caroline formulation. But the Six Day War itself provides neither.

http://opiniojuris.org/2013/01/29/does-the-six-day-war-support-elongated-imminence/

4 Responses

  1. Kevin,
    The list of states that condemned the Israeli action is composed almost entirely of Soviet satellites and communist-controlled African nations that took their cues from Moscow. And it is worth noting that India’s indignance had a fair bit to do with a strafing incident in which 3 Indian UNEF members were killed at the beginning of the conflict by an Israeli jet. This is not to say that Cold War block voting should be ignored in the development of opinio juris, but the impact that it has on international law is certainly diminished by the context in which it occurred.
    I would venture to say that very few states today would take the position that they are legally required to absorb an attack (particularly one directed at their civilian population) before responding in any way. Perhaps you disagree.

  2. Michael,

    I accept the Caroline test, which does not require “absorbing” an attack before Article 51 is triggered; you apparently believe that the imminence standard is broader than that (“Article 51 ‘imminence’ is broader than Caroline ‘imminence’”).  I was simply pointing out that the one example you cite in favor of a broader imminence standard does not, upon examination, do the work you need it to.  It is not just that the “Cold War block” opposed Israel’s attack (and it’s worth noting that a number of the states that condemned the attack, such as India and Spain, were not part of that block); the point is that, as Ruys notes, not a single state that participated in the UN debates affirmed, as a matter of law, that Israel had the right to act pre-emptively.

    It is not the obligation of Caroline‘s defenders to find state practice and opinio juris against a broader conception of imminence (though it is their obligation to find that evidence to rebut those who think even Caroline is too broad).  It is the obligation of those who defend a broader conception of imminence to show the necessary state practice and opinio juris.  So it doesn’t matter that most of the states that openly condemned Israel’s actions were part of the “Cold War block”; what matters is that Israel’s actions generated no opinio juris in favor of the idea that imminence was not limited to the Caroline standard.

  3. Surprisingly, I think that Israel’s claim of self-defense with respect to an armed attack that had already begun was correct.  That a large number of states did not want to address the issue and wanted to move on and try to obtain a peaceful resolution is not support for opinio juris about the propriety of the self-defense claim as such.
    As noted in a post to Michael’s prior post here, an interesting question is when does an armed attack commence, given certain features of contest.
    The Caroline incident had nothing to do with anticipatory or preemptive self-defense claims or context.  The insurgents HAD ALREADY engaged in a process of armed attacks that continued and the Caroline HAD ALREADY engaged in conduct in support of continuing armed attacks.  The entire debate was about measures of self-defense. See 19 J. Transnat’l L. & Pol’y 237, 241-44 (1010) — Webster is sometimes misquoted or not fully quoted.  He addressed the means or method chosen by the UK-Canadians in the actual context of their attack on the Caroline when they could have waited in those days until the vessel re-entered Canadian waters.  Webster spoke of “necessity of THAT self-defense … leaving no choice of MEANS” and since the ACT, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it”!

  4. People may have not seen John B. Quigley’s The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War, Cambridge University Press.

    He questions imminence at all – Caroline or Article 51 – based on newly declassified documents.

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