Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

http://opiniojuris.org/2017/05/08/the-us-and-the-uk-are-not-the-international-community/

22 Responses

  1. Kevin, the calculation in your last two paragraphs changes if we are talking about the destruction of arms destined for an organised armed group that is either (a) engaged in an ongoing NIAC or (b) has engaged in a NIAC and continues to have the capability and intent to do so again. In that context, the attack is not merely hypothetical.

  2. Ariel,

    I agree about (a) — if the intensity of hostilities is adequate for a NIAC, I don’t think imminence is an issue. But I disagree about (b) — I don’t think it makes sense logically, and there is no support for it in state practice (other than by the US).

  3. Hi Kevin,

    Just following up from Twitter. I think, at most, Charlie was suggesting

    A. Defensive force is/should be lawful at t1, because defensive force at t2 will kill more civilians.

    not

    B. Defensive force is/should be lawful at t1, because defensive force at t2 will violate IHL.

    Among other things, Charlie never says that Israel would violate jus in bello proportionality, or any other rule of IHL, by striking the arms shipment at a later time. Given his rather permissive view of IHL, I doubt he thinks they would.

    Arguably, A is just the converse of Bethlehem’s Principle 8(e): https://twitter.com/AdHaque110/status/861675448123654145

    Dunlap interpretation aside, B is an interesting claim, and worth exploring. One thought: it might be cleaner to illustrate B using a categorical IHL rule, like the prohibition on area bombing, rather than a rule that involves balancing, like the proportionality rule.

    All the best,

    Adil

  4. Kevin, you suggested that “if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment”. My point was that both an ongoing NIAC (a) and an intermittent/punctuated NIAC (b) may serve as evidence that an armed attack “will become imminent” in the future and that such a development is not merely hypothetical. If you accept (a), I do not see why you think that (b) is illogical.

  5. Adil, Aurel, and Kevin,

    In my view, A and B both appeal to the concept of a lesser-evils necessity under circumstances in which the “greater harm” being avoided is too speculative to yield a stable international system.

  6. Aurel,

    My statement presumes concrete evidence of a planned attack — it just pushes back how materialised the actual attack must be before it becomes imminent. In my view, the fact that X has been in a NIAC with Y before and has the abstract intention to attack Y again at some unspecified point in the future is insufficiently concrete. But perhaps “illogical” wasn’t the right description.

  7. Adil,

    You are probably right. I was trying to be as charitable as possible toward his argument.

  8. This post is as much about Israel bashing (without cogent evidence) as much it is about defending a terrorist proxy of Iran, the Hezbollah.

    Extending the argument further, no counter terror operations should be conducted either in Afghanistan-Pakistan region against the Al Qaeda or Taliban or the Al Shabaab in Somalia or in any other part of the world because the threat has not materialised or is not imminent. (who decides whether the threat is imminent or not is anybody’s guess).

    In the post in question, the author alleges that “The Israeli Government refuses to take even this basic step, relying solely on ‘neither confirm nor deny’ as a preferred method of choice.” The Israeli Minister has not acknowledged that Israel carried out the attack. (A few previous incidents for which Israel was held responsible turned out to be the result of in-fighting within the Hezbollah). Thus even under the law on the basis of mere suspicion, Israel cannot be held guilty.

    “Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states.”

    And since when have NAM denunciations been accorded the force of International Law. If the same NAM members espouse the cause of unilateral humanitarian intervention whether the intervention be held to be legal? What is the relevance of NAM in the present world order?

  9. As always, Kumar’s wilful ignorance is truly astonishing.

  10. Mr. Heller, I know my comments are not to your liking. And what you write is nothing short of BS! The purpose is to have the readers know that Mr. Heller is a biased and opinionated professor. And as always I feel sorry for the students. Bad luck guys!

  11. I rest my case.

  12. the increase in trolling comments (and responses to it), and lack of moderation or deletion, make this blog and the discussions less and less attractive. Please take the trolling to twitter or fb or whatever.

  13. Anon,

    We do not delete or moderate comments unless they are clearly unacceptable. Kumar comes very close to the line with his endless irrelevancies and ad hominem attacks, but we try to err to the side of unrestrained debate. You are absolutely right, though, that I shouldn’t engage and make things worse. Thanks for the reminder!

  14. The question is who is trolling? One is entitled to disagree, isn’t is Prof? Or you do not tolerate any form of dissent in your class room as well? I have merely stated a position which may or may not be agreeable to you or anon. You are free to bring in moderation for the comments offered. “And that will prove just one thing – That dissent or disagreement with the author will not be tolerated”

  15. I was to react in response to your personal attacks, Mr. Professor.

  16. “forced to react”

  17. Kumar and Prof. Heller, to troll is to ‘make a deliberately offensive or provocative online post with the aim of upsetting someone or eliciting an angry response from them.’

    Disagreement in substance (by the author of a post, or a commenter) is one thing, but intentional provocation, lacking any substance, is just tiring, and detracts from the enjoyment of reading this otherwise excellent blog. And trolling by one simply feeds the others. Either call someone out with rational arguments, or stay away, delete, ignore, moderate, etc. This is getting childish.

  18. The only thing that is “truly astonishing” here is Heller’s chutzpah in claiming that his (anti-)Israel obsession is driven by academic objectivity.

  19. Yes, nothing says “anti-Israel obsession” quite like a carefully researched and argued analysis of international law.

  20. “carefully researched and argued analysis of international law”

    I bet you just love the feeling of your hand patting your own back, Heller. Keep complimenting yourself, nobody can do it better than you.

  21. Saying something is carefully researched and written doesn’t mean it’s correct. But at least I make arguments, which is a trait shared by far too few of the commenters on this blog. If believing that I take legal questions seriously and try to be fair to the other side, not pretending every issue is easy, qualifies as patting myself on back, so be it. And at least I write and comment under my own name — always. Love me or hate me, readers always know who I am and where I stand.

Trackbacks and Pingbacks

  1. […] A series of posts on Just Security and Opinio Juris on Israel’s attacks on Hezbollah in Syria: see here, here, and here. […]