Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006
In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.
That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”
My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.