An Alternative Justification for Israel’s Attacks on Hezbollah in Syria

[Ernesto J. Sanchez is an attorney in Miami, Florida who concentrates his practice on appellate and international dispute resolution matters. He is also a senior analyst for Wikistrat, a geostrategic analysis consultancy, as well as the author of The Foreign Sovereign Immunities Act Deskbook, published by the American Bar Association.]

Asaf Lubin’s excellent post on Just Security questioning why Israel’s repeated strikes against Hezbollah in Syria have not been the subject of the same degree of legal analysis as the recent U.S. attack on a Syrian airfield has received two notable responses. The first is from the eminent U.S. Air Force General Charles J. Dunlap (retired), who utilizes an anticipatory self-defense framework to defend the strikes and explain the consequent lack of jus ad bellum scrutiny the Israeli strikes have received. The second is from Opinio Juris’s very own Kevin Jon Heller, who has criticized General Dunlap’s analysis by calling the strikes “precisely the kind of anticipatory self-defense that international law prohibits.” A purely anticipatory self-defense framework, however, may not provide the best, or at least not the only, approach for examining the strikes’ legality because it entails looking at the strikes in isolation and not from the perspective of the state of war that has existed between Syria and Israel since 1967. It is this state of war that guarantees Israel’s basic right to launch strikes against Hezbollah in Syria at times of Israel’s choosing.

The fighting in the 1967 Six-Day War ended after Israel, Jordan, and Egypt agreed to abide by U.N. Security Council Resolution 234, a demand for a cease-fire on the parts of all belligerents, and a Syrian-Israeli cease-fire noted by U.N. Security Council 235. The October 1973 hostilities between Israel and an Arab state coalition including Syria popularly known as the Yom Kippur War was the subject of three U.N. Security Council cease-fire demands – U.N. Security Council Resolutions 338, 339, and 340. Resolution 340, enacted on October 25, 1973, was successful in regard to all the fighting save solely for that between Syria and Israel. Indeed, Israeli forces had driven deep into Syrian territory and continued to engage in skirmishes and artillery exchanges with their Syrian opponents. Only shuttle diplomacy by U.S. Secretary of State Henry Kissinger was able to produce a disengagement agreement between Syria and Israel based on U.N. Security Council Resolution 338 that mandated the exchange of prisoners of war, Israeli forces’ withdrawal to the Golan Heights territory captured in 1967, and the establishment of a U.N. buffer zone. That agreement took effect on May 31, 1974.

So how can a state of war between Syria and Israel have continued to the present day? After all, Mr. Lubin, in pointing out that Israel last engaged in protracted armed violence in Syria in 1974, asserts that “to suggest that an armed conflict [has been] ongoing ever since seems improbable, even under the most liberal interpretation of the way wars end and the termination of the application of international humanitarian law . . .” Tel Aviv University Professor Yoram Dinstein, a former Charles H. Stockton Professor of International Law at the U.S. Naval War College, notes in his book War, Aggression and Self-Defence that a war can end in one of five ways, none of which consist of a cease-fire alone.

• A peace treaty, the ideal way of ending an interstate war, normally entails provisions that resolve the issues (e.g., agreement on the delimitation of borders) that drove belligerents to war in the first place and often includes guidelines for future amicable relations (e.g., the establishment or renewal of diplomatic, economic, and cultural ties).
• Once referred to in Hague Regulations 36 to 41, which are annexed to Hague Convention II of 1899 and Hague Convention IV of 1907, as a mere suspension of hostilities akin to what is now known as a cease-fire, an armistice is today understood to terminate hostilities and divest belligerents of the right to renew military operations without addressing the issues underlying a conflict, consequently leaving room for a subsequent peace treaty.
• A state of war may also terminate through implied mutual consent – an actual termination of hostilities on both sides that is not memorialized. This type of situation occurs when some additional event indicating all belligerents’ intent to cease hostilities, such as the establishment or restoration of diplomatic relations, occurs during a lull in fighting.
• A state of debellatio entails one belligerent party’s complete and utter defeat, whereby (a) the party’s entire territory has been occupied; (b) the party’s armed forces are no longer in the field due to unconditional surrender or the like and no allied forces carry on fighting by proxy; and (c) the party’s government has ceased to exist and no government in exile offers opposition.
• War can also end with a unilateral declaration by a belligerent party if the other belligerent party or parties are willing to cease hostilities or unable to do otherwise.

The cease-fires between Syria and Israel do not comport with any of the above scenarios, especially given how the issues driving the state of war between the two countries – Syria’s refusal to recognize Israel and Israel’s Golan Heights occupation – have not been resolved.

Moreover, Hague Regulation 36, which again used the term “armistice” to denote what is today viewed as a cease-fire, states that if the duration of an armistice/cease-fire is not defined, “the belligerent parties may resume operations at any time, provided that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.” Neither the 1967 nor 1973 U.N. cease-fire resolutions, nor the 1974 disengagement agreement, established a duration for the cessation of hostilities between Syria and Israel. And neither document addresses the issue of warning that a cease-fire denunciation is imminent.

As a matter of customary international law, given how Syria and Israel were not yet in existence when the pertinent Hague Conventions entered into force, then, the prolonged state of war between these two states explains the clashes between these two states’ military forces in Lebanon following the 1982 Israeli invasion of that country, occupied by Syria at the time, to drive out the Palestinian Liberation Organization. Engagements also took place during the ensuing Israeli occupation of southern Lebanon that lasted until 2000. Moreover, the state of war justified Operation Orchard – Israel’s 2007 strike against a Syrian nuclear installation under construction for the apparent purpose of enabling Syria to acquire a nuclear weapons capability.

But how does Hezbollah, a Lebanese non-state militia, fit within this state of war? It is true that the relationship between Hezbollah and the Syrian government, always a close one, appears to have grown much closer since the Syrian Civil War’s outbreak, after which the Israeli strikes against Hezbollah in Syria – specifically Hezbollah arms shipments meant for delivery to Lebanon for use in attacks on Israel – appear to have begun. An April 2014 report by the Institute for the Study of War, for example, indicated that Hezbollah conducts offensive operations on the Bashar al-Assad regime’s behalf and trains pro-regime militias, coordinating operations across Syria with the Syrian military high command and the Iranian Revolutionary Guard Corps. On some occasions, Hezbollah commanders have even been given tactical control over Syrian army units.

Hezbollah arms shipments and the like would make eminently justifiable targets in the context of the Syrian-Israeli state of war if Hezbollah qualified as a de facto organ of the Syrian government, especially for purposes of attacks on Israel. But it is not clear that Hezbollah meets the standard for organ status set forth by the “effective control” test propounded by the ICJ in its 1986 Nicaragua Judgment. Nor do open sources seem to indicate any lesser role the Syrian government has in ensuring these attacks can continue, a role that might make Hezbollah a Syrian government organ under the less influential “general control” standard set forth in the ICTY Appeals Chamber’s 1999 Tadić decision. That standard maintains that “[t]he control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.”

What crystallizes the legality of the Israeli strikes on Hezbollah in Syria in the context of the Syrian-Israeli state of war, then, is sheer logic. If a host state (i.e., Syria) allows an unaffiliated group’s (i.e., Hezbollah) use of its territory as a staging area for terrorist attacks on another state (i.e., Israel) with which the host state is in a state of war, especially when the group shares host state objectives in regard to the other state (i.e., the destruction of Israel), neither the host state nor the terrorist group can expect that the other state will not attack the terrorist group in self-defense – preemptive or not – on the host state’s territory. An attack on the terrorist group in the unaffiliated host state’s territory by the second state will not constitute an application of the controversial “unable or unwilling” standard for self-defense against non-state actors because the standard solely concerns situations where a state hosting non-state belligerents in a conflict with another state, willingly or not, is not in itself in a state of belligerency with that other state.

Indeed, the existence of a state of war eliminates the second state’s need to consider what constitutes permissible anticipatory self-defense. The second state can attack the group in the host state’s territory at any time so long as the law of international armed conflict’s four core principles governing the conduct of hostilities – sufficient distinction between combatants and civilians, military necessity, prevention of unnecessary suffering, and proportionality (i.e., an incidental loss of civilian life, injury to civilians, damage to civilian objects, or combination thereof that is not excessive in relation to the direct military advantage anticipated) are met. Simply put, a terrorist group’s use of a host state as a staging area for its attacks on a second state with which the host state is in a state of war is analogous to a civilian’s decision to take a direct part in hostilities driving an armed conflict pursuant to Article 51(3) of Additional Protocol I to the Geneva Conventions – both the group and the civilian lose their protection from attack.

The confluence of the Israel-Hezbollah conflict with the Syrian-Israeli state of war thus makes the Israeli strikes against Hezbollah in Syria legal under the law of armed conflict.  As a result, the strikes simply qualify as another episode of combat in a single ongoing war between Syria and Israel that began in June 1967 and that has been marked by a number of extended cease-fires, official and de facto.